Ralph B. Strickland, Jr.
Agency Legal Specialist
North Carolina Justice Academy

Volume 1 Number 6
July 1994

New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

SEARCH INCIDENT TO ARREST IN THE PASSENGER AREA OF AN AUTOMOBILE.

In April of 1978, a New York state trooper in an unmarked patrol car was passed by another automobile with four occupants that was, to put it politely, speeding. The trooper took umbrage (offense) at their rudeness, and proceeded to stop them. Alas, no one was the owner nor related to the owner. The trooper's olfactory sense detected the odor of burnt marijuana, and he saw in plain-view on the floor of the car an envelope marked "Supergold" which he associated with marijuana use. He arrested all four for the possession of marijuana, Mirandized them, removed them from the vehicle, searched them, and finally searched the passenger area of the car itself. There he found a jacket belonging to Roger Belton. Upon unzipping one of the pockets, the trooper discovered cocaine and arrested Belton for possession of that illegal substance.

The procedural aspects of the case were rather obtuse, but suffice it to say that the case made its way to the United States Supreme Court on the issue of the search of Belton's jacket: was it a valid search - incident to arrest of Belton? The Supreme Court said "yes."

First, the Court held that you (as a law enforcement officer) may not conduct a search of a Constitutionally protected area until you first convince a neutral and detached judicial official that there is probable cause to do so. Of course, the Supreme Court has recognized many exceptions to the warrant requirement: consent, plain view, plain smell, plain touch, plain taste, open fields, abandoned property, the Carroll doctrine (or vehicle searches), stop and frisk. The exception we now turn to, however, is the search incident to arrest exception to the warrant requirement.

It has long been held that upon arrest of a person you may search him to remove any weapons that he might seek to use in order to resist arrest or effect an escape, and to prevent the concealment or destruction of evidence. Now this right to search is not based on probable cause to believe you will find a weapon or evidence, but simply because you had probable cause to make the arrest.

It is also the rule that you may search the area within your arrestee's "immediate control" - his lunge area. While this was always pretty well understood when the search incident to arrest occurred in places other than a motor vehicle, there was much disagreement in the lower courts about the area within an arrestee's "immediate control" when, as an occupant of the passenger area of an automobile, he was arrested.

To solve this problem, the Supreme Court enunciated (pronounced) a "bright-line" rule for search incident to arrest of an occupant of the passenger area of an automobile:

We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed, since the jurisdiction for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

Whereas the Supreme Court did not specifically mention the opening, in this situation, of a locked container found within the passenger area, our court of appeals has authorized such an act. In State v. Massenburg, 66 N.C.App. 127, 310 S.E.2d 619 (1984) the North Carolina Court of Appeals authorized law enforcement officers in this state to open a locked container in the passenger area of an automobile during a search incident to the arrest of an occupant of that area.

While we admit there is some difference between a locked glove compartment and a closed but unlocked one, we do not believe the Supreme Court intended to make a distinction between them with regard to a search incident to arrest... We conclude... that the Supreme Court has evidenced an intent to allow a warrantless search of a locked glove compartment pursuant to a lawful arrest.

When faced with a search incident to arrest of the occupant of an automobile, you should remember the following:

1. Upon arrest of the occupant of the passenger area of an automobile you may search that person for weapons and evidence of a crime (automatically and with only probable cause to arrest; probable cause to search is not required).

2. You may then handcuff your prisoner, place him in the rear or caged area of you patrol car, and return to the suspect vehicle where you may search the passenger area, incident to your arrest, for weapons and evidence.

3. During your search of the passenger area you may search all containers therein, including open, closed or locked containers.

4. NOTE: It is the opinion of the legal staff here at the Academy that if you come upon a locked container for which you cannot obtain the keys or combination thereto, YOU SHOULD NOT FORCE OPEN SUCH LOCKED CONTAINER. Although the courts appear to give you that right, you should remember that you are searching said container incident to an arrest and not because you have probable cause to believe that it contains an item subject to seizure. Therefore, if you wish to force it open, we suggest you obtain a search warrant to do so. If forcing it open without a warrant damages the container, and the container is valuable, you might be required to pay for the damages.

CAVEAT: These rules are to be applied only to the search - incident to arrest of an occupant of the passenger area of an automobile. They are overly broad if applied to any other search - incident to arrest situation. We will discuss that law in the August article.