Arizona v. Gant - Oral Argument

ORAL ARGUMENT OF JOSEPH T. MAZIARZ ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We'll hear argument next in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan. Mr. Furlow.

I'm sorry. We won't.

(Laughter.)

Chief Justice Roberts: It's still early in the term.

Case 07-542, Arizona v. Gant. Mr. Maziarz.

Justice Kennedy: Do you have any views on the other case? (Laughter.)

Mr. Maziarz: None whatsoever, Your Honor.

Mr. Maziarz: Mr. Chief Justice, and may it please the Court:

More than 27 years ago in Belton this Court applied its prior decisions in Chimel and Robinson to the arrest of a recent occupant of an automobile. The Court sought to forge a workable straightforward rule that could be easily applied and predictably enforced by law enforcement officers in the field in this dangerous and dynamic situation.

After careful consideration, this Court held that the passenger compartment of the vehicle was deemed to be under the immediate control of the arrestee. The Court also made clear that the search need only be a contemporaneous incident of the arrest.

There are three reasons, all well-established by this Court's case law, why officers, law enforcement officers, need not demonstrate a threat to their safety or need to preserve evidence prior to searching an automobile incident to arrest, even if all of the recent occupants of the vehicle have been arrested and secured.

First, neither justification need exist in a particular case. This Court has made clear in Robinson that a search incident to arrest requires no additional justification. It's the fact of arrest that justifies the search.

Second, the search need only be a contemporaneous incident of the arrest or substantially contemporaneous with the arrest. Obviously a search can be contemporaneous even if the arrestee has been secured.

Justice Ginsburg: But not if it occurred in the station house, right, if the -- if the arrestee had been taken into the station house?

Mr. Maziarz: Correct. That would be remote in time and location, Your Honor.

Justice Kennedy: Or location.

Mr. Maziarz: Time and location, Your Honor.

Justice Ginsburg: Well, why isn't this situation more like the station house than it is like -- the Belton situation is the police apprehend the -- a driver. They are concerned about weapons, about being assaulted. But here we have someone who is locked up inside a police car, handcuffed, can't go anywhere.

That sounds to me more like the station house than it does the urgent situation where the police have a legitimate concern for their own safety.

Mr. Maziarz: The arrestee is still at the same location at the scene of the arrest. It's not remote in place or time because it -- it -- the arrest and the search occur in a short period of time at the scene of the -- of the arrest. And while he -- the arrestee is secured to one degree or another, in Belton this Court wanted a workable, straightforward rule that officers could apply across the board and not have to look at particular facts and circumstances. So --

Justice Kennedy: And this is important, but you had three -- three points. One was the fact of the arrest; and, two, it must be contemporaneous. And the third?

Mr. Maziarz: The third is requiring a justification is anathema to a bright-line rule. And that is precisely what this Court wanted in Belton, was a rule that law-enforcement officers would know how to apply from one case to another, that wouldn't vary based upon the particular facts of the arrest.

Justice Souter: Well, we do have a -- we do obviously require a justification for the bright-line rule itself. And -- and the problem that this case raises, I think, if anything more acutely than any of the others that we've had recently, is that it seems if -- if your position is -- is going to be accepted, to divorce the search totally from the justification for the Chimel rule.

And -- and at some point we've either got to say, all right, it's no longer a Chimel rule, there's some other justification for the bright-line rule; or we've got to say, to purport to apply the Chimel rule in a case like this, handcuffed in the back of the police car and so on, is -- is to turn the law into nonsense.

And -- and I -- I think we've got that choice in front of us. Do we have a new and different rule, or do we apply Chimel and say, you just can't go this far. This is like the station house.

Mr. Maziarz: I think in Belton this Court did apply Chimel and simply said, in this recurring situation we need a bright-line rule that can be easily determined and enforced by officers --

Justice Kennedy: But the bright line swallows up the rationale in this hypothetical where already he's handcuffed; he is in the car. Is there a justification apart from Chimel for our keeping this bright-line rule?

Mr. Maziarz: The fact that officers have for 27 years applied it; it's a workable rule.

Justice Scalia: That's not a long time.

What -- what was the situation when the Fourth Amendment was adopted? Do you know? If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you -- could you then go and search his carriage? I'm struck by the fact that there is no effort in your brief whatever to take this thing back any more than 27 years. Now, you know, it could -- it could well be that it has always been considered reasonable to search the person and to search the conveyance from which the person has been taken.

If that's the case, I could say, gee, it's always been considered reasonable, end of case. But -- but you -- you give me nothing to hang my hat on.

Mr. Maziarz: Your Honor, there is not much on searches incident prior to 1914, the Weeks case.

There really is not any --

Justice Stevens: Something was happening back there. The automobile exception is much older than that.

Mr. Maziarz: Excuse me, Your Honor?

Justice Stevens: The automobile exception is much older than that.

Mr. Maziarz: Right, but the -- the search incident language and application --

Justice Stevens: But, you know, the automobile exception could provide a rationale that would cover all of these cases. Do you remember my opinion in Belton?

Mr. Maziarz: Yes, I do, very well, Your Honor. But here we -- we have no probable cause. So it would not affect the situation here. This is purely a -- a Belton search for officer safety and preservation of evidence.

Justice Stevens: It's for officer safety when the defendant is no longer in the car and is under -- under the control of the officer?

Mr. Maziarz: There is still a risk.

Justice Stevens: Which are not the facts of Belton.

Mr. Maziarz: Belton, no. The arrestees were not physically restrained in a vehicle.

Justice Stevens: You are asking for the expanded Belton rule, not the rule of Belton itself.

Mr. Maziarz: No, Your Honor. We're asking that Belton be applied as it has been applied by virtually every court in the country and -- and, in fact, in this Court in Thornton. That as -- as long as the arrestee remains at the scene and the search is contemporaneous with the arrest, the officer is entitled to -- to conduct a search of the vehicle.

Justice Scalia: That's a reasonable rule.

What isn't a reasonable rule is to say at the same premises as long as the officer is there and the officer is at risk. I mean that is just -- it's just silly.

It's -- it's simply not the case. And -- and if you bring that forward as the justification for this rule, I'm going to say, you know, get rid of it.

Mr. Maziarz: Well, Your Honor --

Justice Scalia: Realistically, he is not at risk. The guy is handcuffed in the police cruiser, and so I want to go and search his car. What -- what risk to the officer is being avoided?

Mr. Maziarz: In -- in our reply brief we pointed out in 2007 there were 93 reported cases where arrestees cuffed in the back of a patrol car escaped.

So it -- it's very possible this could happen. Now, you have to know --

Justice Souter: Do you know of any one of those cases in which the officer got hurt? Do you know of any one of those cases in which the person who got out of the police cruiser made a beeline for -- for his own car? In fact, so far as I know, we are -- we are not even sure that those people came out of automobiles before they were put in a police cruiser. But do you know of any case in which they went to their own car and tried to get a gun to hurt the cop?

Mr. Maziarz: In one of the cases the arrestee went to his vehicle but simply took off and led the police on a high-speed chase, but none in -- where they went to the vehicle and grabbed a weapon.

Justice Souter: Did he -- did he have -- have his hands handcuffed behind his back?

Mr. Maziarz: Yes. Yes, he had --

Justice Souter: And he was able to drive the car?

Mr. Maziarz: Yes. Well, Your Honor, it's my understanding -- I'm not an expert on this, but it's my understanding from reading some of these cases --

Justice Souter: I'd really like to meet him.

(Laughter.)

Justice Scalia: I wouldn't. I'll bet you that in most of those cases the -- the felon got out the other -- other door of the car while the policeman was searching the vehicle.

(Laughter.)

Mr. Maziarz: And, Your Honor, in -- in ten of those cases the officers were searching the vehicle when they escaped.

Chief Justice Roberts: Counsel, if you don't have -- I thought the whole point of a bright-line rule is that you don't have to justify in every particular case applying the -- the rule. So you are certainly going to -- if you -- the point is if you have a fact case-by-case inquiry, you're giving up the bright-line rule.

Mr. Maziarz: And that was the point I was trying to make is -- is there is going to be -- security is a matter of degree. Is the arrestee sufficiently secured if he is arrested and standing next to the vehicle? Is he sufficiently secured if he is cuffed and -- and removed 10 feet away? Is he sufficiently secured if he is in the patrol car? We -- in Belton this Court wanted to do away with those nuances and have just a straightforward --

Justice Kennedy: Are there other -- are there other reasons that it's hazardous or dangerous or at least risky to leave an unattended car where other people can go in and maybe find weapons and contraband if the police aren't guarding it? I mean, are there other reasons other than Chimel for this bright-line rule?

Mr. Maziarz: Certainly, in -- in the case of an automobile, which is different from the Chimel home situation, if a vehicle is being left there. In this case the gun was on the front passenger seat of the vehicle. Someone could readily access it. That's always true with an automobile.

Officers obviously could take some steps to try and secure the vehicle, lock it up or what-not. But that's not going to guarantee the fact that -- that the weapon or destructible evidence won't be tampered with by either other co-occupants who the officers have no justification to arrest and secure or other people in the area. So --

Justice Ginsburg: What happens to this car? Now, we had no passengers, just the driver. He is put away in this squad car, so he is not going to drive that car home. What happens to the car? Let's say there was no search. The car is there. It has no driver. What do the police do with it?

Mr. Maziarz: In this case the police impounded the car, but that was only because after they did the Belton search, they found drugs.

Justice Ginsburg: But suppose they didn't? Suppose they said, well, he is secure; he is no danger to us, so we are not going to search the car without a warrant. What -- what happens to the car? It just doesn't stay there stranded on the road, does it?

Mr. Maziarz: It depends on the department.

Some departments would simply lock it up and leave it there. Other departments would impound it and do an inventory search of the contents which obviously they would find anything that happened to be in there during the course of the inventory search. Now, in this particular case it was unusual because the vehicle was actually pulled in the driveway of a house, so the officers at the evidentiary hearing testified that had they not found the drugs in the vehicle they would not have impounded it, because again it was on private property and they would have had no real reason to do it.

Quite simply there is no special justification for this Court to overrule Belton.

Nothing has changed in the past 27 years to call Belton into question. The same complaints we hear voiced by defendants, legal commentators and some judges are the same complaints voiced by Justice Brennan in his dissent in Belton as well as by the New York Court of Appeals in its decision in People v Belton. The Court considered everything, made a policy decision based on reasonableness that -- that -- that officer safety --

Justice Stevens: But it isn't true that we didn't have the recent occupant problem at the time of Belton?

Mr. Maziarz: Right. That -- that came into fruition in -- in Thornton and -- and of course in this case Gant is a -- as recent as a recent occupant can be.

He literally was stepping out of the car when the officer summoned him and he knew the officers were there because they flashed a flashlight in his face as he drove by three -- three feet from them.

Police officers have been trained under Belton for the past 27 years. They have applied it in the field. It would ban an undue burden to have to retrain those officers and -- and for them to determine under totality of the circumstances analysis when they can and when they can't conduct searches of automobiles incident to arrest. They wouldn't know their authority; citizens wouldn't know the scope of their Fourth Amendment protection. Additionally as we pointed out, an overwhelming majority of states, 41, have followed Belton and a few of those have even done so under their own State constitutional search and seizure provisions and of course they all had the opportunity to opt out but they obviously believed Belton is a workable rule that promotes officer safety and only has a minimal impact on the privacy interests of the recent occupant of an automobile.

Unless the Court has any further questions I'll retain whatever I have for rebuttal.

ORAL ARGUMENT OF ANTHONY YANG, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Chief Justice Roberts: Thank you, Mr. Yang -- Mr. Maziarz.

Now Mr. Yang, we'll hear from you.

Mr. Yang: Mr. Chief Justice, and may it please the Court.

Belton relied on a factor that was not in Chimel, the need for an easily administratable rule in the commonly recurring incident of vehicle arrest and the search incident to that arrest. Justice Stewart who authored both Chimel and Belton recognized that over a decade of experience of Chimel had shown that the courts were in disarray, that courts had confronted similar fact circumstances and come to differing results, that officers in the field, confronted with the highly volatile and dangerous events surrounding a custodial arrest needed clear guidance to be able to govern their actions in these instances.

That makes total sense. Unlike Chimel which occurred in a home and arises in a situation where the privacy interests are at their apex, in the Belton context, the search is of the passenger compartment of a vehicle, and this Court has repeatedly acknowledged that with respect to automobiles there is a considerably diminished or greatly are reduced expectation of privacy. Given the very real threats that officers face in discharging their duties on a day-to-day basis in this commonly recurring scene -- circumstances, Belton established a bright-line rule to be able to govern their conduct.

Justice Scalia: Once you -- once you eliminate the -- the need to show that the officer's safety was threatened why -- why would you limit the search just to the passenger compartment of the vehicle? Why don't you let him search the trunk, too?

Mr. Yang: Well, I think Belton -- when Belton was decided there was some question in terms of the trunk in terms of this Court's decision in Sanders.

Sanders is mentioned in Belton. There hadn't been a problem with a bright-line rule with respect to trunks and the Court simply didn't -- didn't address it. And we're not in this case seeking an expansion of Belton, Your Honor.

Justice Scalia: I know -- I know you're not but it just doesn't make sense to me to -- to abandon the requirement that the -- that the officer's safety be threatened and yet to say oh, but he can only search the -- the passenger compartment. If indeed there is reduced expectation of privacy for the automobile, you arrest somebody you can search the automobile; what's wrong with that?

Mr. Yang: Certainly in another case, you know, the Court can revisit the scope of Belton but I think Belton as established certainly makes sense with respect to the ambit of the passenger compartment. Even

Justice Ginsburg: In Belton, wasn't the notion what was within grabbing distance? And the trunk wasn't within grabbing distance. That was -- and here nothing is within grabbing distance.

Mr. Yang: Well, I'm not sure that that's -- that's correct, Justice Ginsburg. In Belton the New York Court of Appeals in a portion quoted the Court by Belton had determined that there was no longer any danger that the arrestees could get to the vehicle, and in fact Justice Brennan emphasized in dissent there was no possibility that they could reach passenger compartment.

Justice Kennedy: What is the basis for your wanting us to adopt what we might call a bright-line rule for automobile exception? What are the reasons other than officer safety which we think may not be a very persuasive reason.

Mr. Yang: Well, the -- related to officer safety is the question of the administrability of the rule in these highly fluid contexts. The officers must make rapid judgments about what is and what is not permissible and in Belton the Court recognized that a rule -- that rules based on the totality of the circumstances, which require all kinds of ifs ands or buts, simply are not workable; and that had been borne out with 10 years of experience with Chimel being applied in the vehicle context and Belton.

Justice Souter: I take it you agree it's perfectly workable to say that if the defendant has been taken to the police station, they can't then search the car --

Mr. Yang: Yes. We believe the bright-line --

Justice Souter: Why isn't it equally workable to say when the defendant is handcuffed and put in the back of a cruiser, they can't do it?

Mr. Yang: Well, Justice Souter we think that -- in some ways that does have the benefit of a bright-line rule, but we don't believe that the -- that's a question of where you're going to draw that line.

Justice Souter: Right. And -- and we are talking now about administeribility. The police station rule is administrable; it makes for a good bright-line rule; why doesn't handcuffs in the back of the cruiser make for an equally bright line?

Mr. Yang: We actually would draw the line a little closer than the police station. It would be when the -- the search has begun after the suspect has been removed from the scene. But in terms of administrability I guess that would provide for a sufficiently bright-line rule but the problem is drawing the line at that point.

Justice Stevens: Why wouldn't the rule of requiring just the automobile exception, where you would require probable cause to search a vehicle, why wouldn't that be a bright line rule that would fit into everything else.

Mr. Yang: It is, but the difference between the probable cause exception and a search incident to arrest is a search incident to arrest doctrine --

Justice Stevens: Are you more concerned about the ability to search the vehicle or the protection of the officer?

Mr. Yang: Well, certainly the protection of the officer is what motivates the doctrine.

Justice Stevens: But doesn't -- don't these rules apply to ordinary traffic arrests where there really is very little risk to the officer?

Mr. Yang: Actually, Your Honor, very common-day traffic arrests have high risk to the officer due to the unknowns. The Court recognized that in Robinson, Robinson which established the bright-line rule for search of the person was in fact an arrest based on failure -- driving on a suspended license. The Court has in Chadwick emphasized that all custodial arrests --

Justice Stevens: The need to search the vehicle is primarily justified by the interest in officer safety?

Mr. Yang: Primarily, but also the interest in preserving evidence. When a suspect is --

Justice Stevens: But the interest in preserving evidence really should only be present when there is probable cause to believe there is some evidence.

Mr. Yang: Oh, no; when a suspect is put under custodial arrest, the -- there is increased incentive both to escape, to get weapons, and also to destroy any incriminating evidence that might be --

Justice Scalia: You've arrested this guy for -- for reckless driving. He was going 25 miles over the speed limit, okay? And you're going to search his car for evidence? Of what?

Mr. Yang: To preserve --

Justice Scalia: You're going to allow the search nonetheless. Let's assume he is handcuffed in the back, so officer safety is not at issue; but you say we want to be able to search a car for evidence.

Evidence of what?

Mr. Yang: Well, we would take issue with respect to the officer safety.

Justice Scalia: I understand that.

Mr. Yang: But in terms -- in terms of the evidence the Court recognized in Maryland v --

Justice Scalia: You have to link -- if you're going to use that rationale you have to link the reason for the arrest with the likelihood that there would be any evidence found in the car that would support the arrest.

Mr. Yang: The Court recognized in Maryland v Wilson that when you pull someone over for a traffic stop, there is a risk of escalation of the encounter because evidence of a more serious crime might be revealed in that stop.

Justice Scalia: Oh, so -- so you, you avowedly say that once you arrest somebody you can rummage around for evidence of a different crime, right?

Mr. Yang: No. What I'm -- what I'm talking about is the -- the danger of the custodial arrest situation, Your Honor.

Justice Kennedy: Well, you keep coming back to danger. And let's -- let's assume that some of us think that when he has been handcuffed and in the back of a car and he is about ready to leave the scene, there is no more danger. I want to know if there are any other reasons other than preserving evidence for searching the car.

It seems to me there are good reasons for searching that car. It's -- it's movable. That's the old vehicle exception. It can have contraband in it.

It can be stolen. It can be taken for joy rides. But you don't seem to make any of those arguments. You just want to keep coming back to officer safety and on that point I think your case is very weak.

Mr. Yang: Well, on the point of officer safety, Your Honor, I can understand the Court's reluctance to think that a person handcuffed in a car is likely to escape. And we admit that the occurrence is relatively small. It's clear that a person handcuffed in the back of a patrol care escapes the car dozens of times a year. We just did a simple search on the Internet --

Justice Kennedy: Fine, if you want to go back to that, fine. I have problems with the argument but if that's your argument I'll take it from there.

Mr. Yang: But the point is, on a continuum, Belton provides an administrable rule where officers in the field can guide their conduct. There's going to be instances in which the risk is going to be higher, and there's going to be instances where the risk is lower.

And, admittedly, we are on the end of the continuum, but it -- Belton wanted to provide a rule whereby you wouldn't have to guess in these circumstances.

Certainly, with respect to the privacy interest in vehicles as well, Justice Kennedy, the privacy interest in the vehicle, particularly when you've been arrested and could be -- for a traffic violation --

Justice Stevens: Normally, to overcome the privacy interest, you need probable cause. And you did need probable cause for the automobile exception too.

Mr. Yang: In terms of the balancing that's conducted, it can be a risk to officer safety, the need for administrable rule balanced against the privacy interest. Here the privacy interest has been quite diminished. Once you've been arrested on the street, the police often have -- certainly have a constitutional ability to impound the car and conduct an inventory search.

Justice Ginsburg: Could they have impounded this car? I thought they didn't have grounds to impound it because it was -- we were just told it was parked in an alley of a private house.

Mr. Yang: It was in a private house owned by someone else. The officers testified that they normally would not tow it at that point, but certainly they would have had the constitutional authority. It would have been reasonable for officers to impound the car that was not at the residence of the arrestee.

Justice Ginsburg: So they could have impounded, and then could they have done an inventory search?

Mr. Yang: Correct, which underscores the diminished privacy interest that an arrestee would have in the contents of a vehicle. And --

Justice Scalia: Why -- why can they impound it? Suppose they stop and he pulls over to the side of the street where there is parking, all-night parking.

What authority would they have to drag that car away?

Mr. Yang: Well, once someone has been arrested and if it's all-night parking, if the person is going into a custodial arrest, going to jail for purposes of protecting --

Justice Scalia: He says, "Let me lock my car." You know, "I park it on the street all the time.

It's a lousy car any way. Nobody wants to steal it."

(Laughter.)

Mr. Yang: Well, for purposes of the impound and inventory search, so long as there's a reasonable basis, and the reasonable basis would be to secure the vehicle to get it off the street when the occupant has been arrested and wouldn't be able to retrieve it, I think --

Justice Scalia: I can see some situations where -- where, for public safety or other reasons, you have to remove the car from where it is, and I guess the best thing to do is to drag it off to the police impoundment yard. But in other situations, I -- you speak so blithely of impoundment as though -- as though that's an automatic remedy. I just don't know that it is.

Mr. Yang: It's not automatic, but it does go against the expectation of privacy that one has in the personal effects in the vehicle, and is greatly diminished because, you know, the State -- I believe it was your decision in Wyoming versus Houghton -- the State regulates cars on a daily basis. They inspect, examine the vehicle. So when we are talking about the constitutional balance --

Justice Kennedy: Diminished expectations of privacy are not a reason to search.

Mr. Yang: Correct, but what it's balanced

Justice Kennedy: The only reason to search that I can find from you so far is officer safety.

Mr. Yang: Officer safety and the need for an administrable rule, which is --

Justice Breyer: Where -- where is it? I mean, if you want to -- if you want to search, you can impound the car. If you want to search, you can ask for consent, which you probably won't get. If you want to search, you can look in the window. There's no problem there. It's just under the seat and in the glove compartment we're talking about. If you have probable cause to think that there's evidence of a crime even in the glove compartment or underneath the seat, you can look at it without a warrant. Why do you need this as well? You say we need this as well because the guy who's locked up in back of the squad car might take off the handcuffs, open the door, run out, and grab a gun from under the glove compartment. That's a little thin.

And then you say, well, the rule is it needs to be administrable. And then I say, okay, the rule is administrable if you've got him locked up in the squad car and all you want to do is have a good snoop around, take it in and impound it. That's administrable.

Mr. Yang: The likelihood of that event occurring is relatively small. The potential risks to officers are great. Given that this does occur, that individuals do escape from vehicles, and -- here the vehicle, the police vehicle, was parked immediately behind the --

Justice Breyer: I got that point. Are there many people, by the way, they arrest but they leave them standing outside the squad car?

Mr. Yang: It will depend on the circumstances, Your Honor. Sometimes --

Justice Breyer: I mean are we going to have one of these spectrum things?

Mr. Yang: Well, that's exactly the point.

In items of the administrable rule, there's all kinds of stages in an arrest, which, we'd have to stop and say, you know, is it going to be -- is he arrested -- is there one officer, or are the three suspects -- are they handcuffed in front or are they handcuffed in back? Is it a metal handcuff? Is it a plastic handcuff? Is it night? What's the surrounding circumstances in terms of the traffic that might be distracting to the officer? Is it a neighborhood which is a high-crime neighborhood? There's all kinds of things that, in the "totality of circumstances" approach the Arizona Supreme Court adopted, would be inadministrable in the field. And the Court recognized that in Belton, and in fact reaffirmed that in Thornton. Just recently the Court explained that experiences show the need for a bright-line rule in this context.

Justice Scalia: So -- a fine-line rule. I mean -- and you can instruct all the police officers in your department, when you arrest somebody, have them stand right near the car while you search it. Okay? Make sure that he's near enough that, you know, he's a threat to your safety.

(Laughter.)

Mr. Yang: I --

Justice Scalia: That's certainly a bright-line rule.

Mr. Yang: I doubt that -- the hypothetical that someone --

Justice Breyer: Well, that's actually a serious point, maybe in your favor because it -- what was worrying me about this is, if you lose the case, there would be policemen who would then let dangerous people stay in the car so they could search it. But you haven't made that argument, and, you know, that would be the --

Mr. Yang: We think that that would be the exception. It's possible. We don't think that would happen on a routine basis, and certainly police departments and the Federal Government would not encourage our officers to take that risk.

Justice Breyer: No, nobody would.

Mr. Yang: Custodial arrests are dangerous in themselves, and this is one step, a reasonable step, that officers can take to secure their safety, among others, in the instance of a custodial arrest on the street.

Justice Stevens: But really what's at stake here is the right to search the vehicle for things that are not right out in front at the time he does the custodial arrest.

Mr. Yang: For instance, like a gun right underneath the seat, which would --

Justice Stevens: If it was right there, obviously he had a right to search the whole vehicle under the automobile exception, but in the normal case, I don't see why officer safety is an adequate justification for going beyond the authority that it would have under the automobile exception. That's the problem I have, because you do have broad authority if you have probable cause.

Mr. Yang: May I?

Chief Justice Roberts: Sure.

Mr. Yang: Officer safety underlies the Chimel exception, to begin with.

Justice Stevens: I understand Chimel, but

Mr. Yang: And Chimel --

Justice Stevens: -- underlie Ross.

Mr. Yang: That's correct, but it's a different doctrine. I'm mean, that's about --

Justice Stevens: My basic question is: Why doesn't that different doctrine apply the bright-line rule, simply administered, that you need?

Mr. Yang: When we're talking about custodial arrest, there are unknown risks. If there are unknown risks, officers obviously can't have probable cause to believe there would be a weapon in the car.

And that's what the "search incident to arrest" doctrine seeks to address.

Chief Justice Roberts: Thank you Mr. Yang.

Mr. Yang: Thank you, Mr. Chief Justice.

ORAL ARGUMENT OF THOMAS F. JACOBS ON BEHALF OF THE RESPONDENT

Chief Justice Roberts: Mr. Jacobs.

Mr. Jacobs: Mr. Chief Justice, and may it please the Court:

I'd first like to address the issue of the historical basis for the Fourth Amendment that was raised earlier. I would note that in the Respondent's brief, on page 13 footnote 5 and on pages 15 through 16, the LaFave treatise is cited. That treatise addressed, primarily in the context of automobile searches, a history of the -- the nature of Fourth Amendment restrictions on that type of search.

We also draw from Chimel itself, which contained an evaluation of the history of Fourth Amendment searches in general in order to come to the conclusion that the Fourth Amendment requires that searches which are exceptions to the warrant requirement must be tied to the twin exigencies on which they are based.

Justice Scalia: Why -- why is that so for searches of the vehicle? When it isn't -- it isn't so for search of the person? I mean, if the police arrest Mother Teresa, they are still entitled to frisk her, right, even though there's little likelihood that she has a Gatt? (Laughter.)

Justice Scalia: What -- if -- if we don't apply the officer safety rationale to searches of the person, no matter how elderly, how eminent, how virtuous the person is, you can frisk. We're obviously not applying the officer safety rule across the board.

We're adopting a bright-line rule that obviously applies to many situations in which the officer is not at risk.

Why can't you do the same for automobiles?

Mr. Jacobs: If the Court, Mr. Justice Scalia, if you're suggesting that a bright-line rule might be adopted that is essentially exactly like the search of person incident to arrest, the problem is that in an arrest situation the police have exclusive dominion and control over the person. They have that person in their custody, that person realistically, at the point when they have taken that person into their custody, historically had been recognized as a subject of search, and that has been consistent throughout our jurisprudence in the Fourth Amendment. We have always recognized that right. The problem is when you take an item like a car that is divorced from the person who is in the custody of the police and now extend that right to search to the individual or to the car, which is not necessarily something over which the police have a right to dominion and control. They have no problem with the car.

Justice Scalia: What's -- what's the history there? Do you know the history there.

Mr. Jacobs: In -- in terms of extension of the car rights?

Justice Scalia: Yes, Thomas Jefferson's conveyance --

Mr. Jacobs: I -- I can refer the case to the LaFave treatise in terms of a complete history upon that, but the Court has always --

Justice Scalia: There is not much there.

Mr. Jacobs: I'm sorry, Your Honor?

Justice Scalia: There is not much there.

Mr. Jacobs: The -- the Court has raised a good point, but what we -- what is consistent, whether it's cars or not cars, is the requirement that searches under the Fourth Amendment be supported by warrants or an exception.

Justice Kennedy: But the absence of dominion or control works the other way. That makes it all the more dangerous. That could be -- there could be guns that other people could get out, evidence other people could get out; and, rather than go through a case-by-case analysis of whether this was true in every case, we just have a bright-line rule as Justice Scalia said at the outset.

Mr. Jacobs: The --

Justice Kennedy: It seems to me that the absence of the dominion and control is -- is just a conclusory statement to explain what happens in the case the person is arrested, but it -- it doesn't seem to me to provide a rationale.

Mr. Jacobs: Well, Justice Kennedy, it explains the difference between a person and something that is not the person, something that is divorced physically from the person, in the same sense that Mr. Chimel's house was separate from his person.

Justice Kennedy: It actually works the other way, because it means there is more reason to search. It's not in our dominion and control. We are leaving it on the street. We want to know what's in there.

Mr. Jacobs: Well, keeping in mind the police have no right to search the car except under delineated exceptions. And what the Government is asking here --

Justice Kennedy: That is what they are asking about in this case.

Mr. Jacobs: Well, what the Petitioner is asking, Justice Kennedy, is that the Belton rule be interpreted so expansively that it's no longer simply a bright-line rule of what you can search, but it's actually a bright-line rule that removes judicial review from when you can conduct that search. And the problem with that is --

Justice Alito: But don't you have to show that there are special circumstances here justifying the overruling of Belton?

Mr. Jacobs: No.

Justice Alito: No?

Mr. Jacobs: No, Mr. Justice Alito. We do not have to show that there are any special circumstances, and we do not necessarily have to overrule Belton here.

Justice Alito: Now, is this a fair summary of the holding of Belton: When a police officer 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?

Mr. Jacobs: That is an accurate statement of the holding of Belton, Justice Alito.

Justice Alito: And if that rule is applied in this case, you would lose; would you not?

Mr. Jacobs: Well, we do not lose, Justice Alito. The reason is because of the focus that the Petitioner places on the aspect of that holding. They take it in a vacuum. They don't look at the word "contemporaneous" in terms of defining "incident to arrest."

The problem with the search in this case and so many others is that the search that is conducted is after the police have taken custody and secured the individual.

Justice Breyer: I -- I mean I don't know if it can go off on that. The -- it seems to me I -- I thought when I looked through this, which was quickly, it seemed to me everyone was assuming that it's contemporaneous. Of course, if it isn't contemporaneous, that's a new world, and maybe you would win on that. I don't know. But don't we have to for present purposes take it as a contemporaneous search, which I think is what the lower courts found?

Mr. Jacobs: There are two views of that.

Justice Breyer: Well, I'm sure there are, but what is your opinion? I mean, is there some reason what I have been doing -- you can tell me -- I am finding this case very, very difficult. And I am not at all certain in my own mind, and I am being quite frank with you. And the reason is that although I don't think Belton is very logical, it has been the law for 27 years; and I take they seriously, as we all do, the principle of stare decisus.

That is why your response to Justice Alito really sort of shook me. Because I was thinking, one, I have to take this as contemporaneous; and I have to run squarely into the problem that for some period of years Belton has been the law and maybe even before Belton. I don't know about Thomas Jefferson's automobile. But, nonetheless, no disaster has occurred, and so why would we overrule an earlier case? Now that's -- that's exactly my problem.

And so if you were interested in that, you have to give me an answer.

Mr. Jacobs: Justice Breyer, we are here to focus on exactly the issue of what is contemporaneous and I believe that it's important to focus on exactly what Belton arose out of. Belton arose out of as this court is well aware four individuals who were taken out of a car all four placed under arrest one set of handcuffs all around the car and arguably all arguably had access to or control over the passenger compartment of the vehicle. That's one of the requirements of Belton's holding is that they have to arguably have access to the passenger compartment.

Justice Alito: What does contemporaneous have to do with officer safety? It has to do with timing doesn't it?

Mr. Jacobs: Well if we consider Justice Alito that officer safety is a function of when you make that assessment. Is officer safety most at risk when the person is initially seized? Yes. However, once they are in the back of a police car as Justice Scalia pointed out they pose a threat to no up with and the record is clear on that.

Justice Alito: Let's say when an arrest is made, a team of officers are there. The person arrested is a person of slight stature. They immediately descend on this person and manacle the person in every possible way, but it's all done in 10 seconds. Is that not contemporaneous?

Mr. Jacobs: If one were to assume a search was conducted at that moment.

Justice Alito: And immediately they search.

Mr. Jacobs: I'm sorry if they immediately search after restraining the person and there is a defined between it being a second or minute or 32 minutes that's not contemporaneous because the reasons supported by that search are not supported by the fact in the exigency. Belton was a situation where there was an immediate and tipping risk to the officer.

Chief Justice Roberts: You're looking at the specific facts of Belton. Belton adopted a bright-line rule. The whole point of a bright-line rule is that you don't look at the specific facts and it presents a problem here you say the guy is handcuffed and in the back of the car? Well what if he is in the back of the car but not handcuffed? What if there are five people around who might break open the police car and free him? What if there are three people around? You have exactly the same case by case inquiry that Belton said we are not going to do.

Mr. Jacobs: Mr. Chief Justice we look at Buie, in Mincey the court noted that I search conducted immediate risk was that all preBelton.

Mr. Jacobs: Those are not all preBelton Your Honor.

Chief Justice Roberts: Which one is not.

Mr. Jacobs: Mincey was after Belton, Your Honor.

Chief Justice Roberts: Are those all preThornton.

Mr. Jacobs: Those are all preThornton Your Honor.

Chief Justice Roberts: Well in Thornton of course the guy was handcuffed in the back of the police car.

Mr. Jacobs: In Belton Your Honor, the Petitioner in this case waived this analysis that we are dealing with in this case but it is true that the arrestee was secured. The issue was whether he was a recent occupant of the vehicle when he was apprehended and whether we should even consider application of Belton.

Chief Justice Roberts: I guess my question is what is left of the Belton bright-line rule when you are done.

Mr. Jacobs: Exactly.

Chief Justice Roberts: We have to have a to determine a threat to officer safety.

Mr. Jacobs: If we assume that that assessment is something new, Mr. Chief Justice then we are accepting without a basis Petitioner's interpretation of Belton's bright-line rule as etch tending beyond simply what is the permissible scope of the search. Remembering that Belton only applied Chimel to the automobile situation Petitioner advocates a much much too broad interpretation of this bright line rule that arose out of Belton and --

Justice Alito: The bright-line rule is set out in one sentence which is the sentence that I read to you but if you just assume for the sake of argument that in order to prevail, in order for you to prevail Belton has to be overruled. What is your, what's the justification for overruling Belton? Is it, has there been no reliance on it, is the Belton rule less workable than the rule that, the case by case rule that you're proposing, is it undermined by subsequent developments and precedent or does stare decisus simply not count in these cases.

Mr. Jacobs: Well Justice Alito stare decisus always counts except where you're wrong.

Chief Justice Roberts: Assuming the decision is wrong.

Mr. Jacobs: That's right. Stare decisus is wrong, but you have to consider my point, Mr. Chief Justice.

Justice Alito: That's enough if we think Belton was wrong that's enough for overruling it.

Mr. Jacobs: Yes and if the court is considering it Mr. Justice Alito if we would like me to answer the question assuming we should overrule Belton why we should do it the answer is Chimel provides us with sufficient tools for officers to protect their safety in the field because you will recall there are other ex-is hes to automobile searches with I have based on actual grounds.

Justice Breyer: Well are you saying do you have any in my own mind perhaps differently from you I think that the stare decisus is really brought into play when you think the earlier decision was wrong.

Mr. Jacobs: Yes.

Justice Breyer: And at that point I'd still need a reason why you should depart from that earlier decision at the moment what the other side says is we tell our police a simple thing. We tell them when you arrest somebody who is in a car you can search the passenger compartment of the car okay. Simple. And we've trained a hundred thousand police officers to do that and they do it. Now, is there some indication that that's turned out to be abusive? Is there indication that there are other problems with the rule as it turned out to be complicated? What kinds of things you could say that will overcome what I'm putting forth as a kind of reluctance.

Mr. Jacobs: I understand, Justice Breyer, and the answer is that -- two things: One, and first and foremost, Belton's general assumption, which is essentially required for the application of the bright-line rule, is empirically not true. With police procedures as we understand them today, routinely arrestees are secured, they are handcuffed, they are routinely placed in the back of patrol cruisers.

And even the amici for the Petitioner in this case acknowledged that officers are not going to deviate from those procedures just to make a search in the future if the rule is changed, but primarily that, that the assumption that underlies Belton is not shown to be empirically true. It's empirically false.

Chief Justice Roberts: Just not to get back -- Mincey was 1978. Belton was 1981.

Mr. Jacobs: Yeah, I misspoke then. Mincey would have been before Belton and would have been a basis, Mr. Chief Justice, for the Court to apply --

Chief Justice Roberts: Yes, but I'm trying to see -- you cited three cases. And my question was whether those survived Belton. Now, were all three of those before Belton?

Mr. Jacobs: If Mincey was, then I would hazard a guess that the other three were as well, Your Honor, except for Buie. And I don't have a cite on that as to the year for Buie.

Justice Stevens: Of course, one of the really contentious issues at the time Belton decided is whether you can search containers in the back in the passenger part of the car. And under the automobile exception, you could search those containers if you had probable cause to believe anything in the car was contraband. And that's what Belton really opened the door to, was container searches. It was not just searches of things in plain view.

And, of course, the justification for suggesting that that's too broad a rule is the very strong privacy interest in containers in cars driven by ordinary motorists. That's really what's at issue under Belton.

Mr. Jacobs: I would agree with that statement, Justice Stevens. That's a correct statement.

And Buie is 1990, Your Honor. My able staff has provided the answers.

But we have to recall, Justices, that we are at all times looking to the Fourth Amendment, its twin exigencies, and the requirement that this Court has consistently held, that in order to avoid a warrant, there must be a clearly defined and limited exception to the warrant requirement.

Now, if there are no more questions, I will yield the floor.

Justice Ginsburg: You are not asking to overrule Belton; you are asking to take it in the context in which it was presented, where there was genuine concern for officer safety. Is that --

Mr. Jacobs: Justice Ginsburg, that is exactly correct. In those situations Belton would apply.

Chief Justice Roberts: Just to explore that, that does seem to me to be overruling Belton to the extent Belton adopted a bright-line rule. What you're saying is, well, in these circumstances Belton applies, and in these circumstances, it doesn't. But you're overruling Belton when you say there's no longer a bright-line rule.

Mr. Jacobs: Mr. Chief Justice, and I'm not being articulate enough, I think, because I keep coming back to the same thing. The bright-line rule in Belton was the extent of the permissible search, not the trigger for the permissible search. Although Belton indicated that the arrest -- an arrest of a person, if he is deemed a recent occupant and if the search is conducted contemporaneously with that arrest, allows the search. It is the scope of the search that was permitted, because we couldn't figure out, as a consistent matter, what was reaching distance when we dealt with that particular and problematic situation.

And that's from Belton. And footnote 3 again comes back to that.

Chief Justice Roberts: So you think after Belton -- you think after Belton, we still have to look and see what's reaching distance on a case-by-case basis?

Mr. Jacobs: Belton only requires that if the passenger compartment of the vehicle is arguably within the reach of an arrestee who was a recent occupant, that the police may contemporaneously search the passenger compartment without regard for how far.

Chief Justice Roberts: I don't understand that part: "Arguably within the reach." I don't understand that to be part of Belton. I thought that's what Belton did away with, and thought Belton was saying, look, we are going to have a bright-line rule, because we don't want to say he's five feet away, he is not within the reach; two feet away, he is.

Mr. Jacobs: Belton --

Chief Justice Roberts: Do you think Belton kept the requirement that the person be arguably within the reach of the compartment?

Mr. Jacobs: Yes, Mr. Chief Justice. Not any specific portion of the compartment. That's what Belton said. You don't have to prove he could reach the jacket in the back seat. You don't have to prove that he could reach the briefcase under the passenger seat.

You just have to prove that he could reach the passenger compartment. And we will generalize that if you can reach the passenger compartment, you can reach anything in it. And that was the generalization.

And even though we know from police procedures that empirically that's not really true, we know that we can't -- the Petitioner can't cite a single instance where somebody has gone back to his car, grabbed a weapon, and attacked an officer. It just hasn't happened. Empirically it's false. And that, as Justice Breyer pointed out perhaps by his question, is one of the flaws of Belton that courts may continue to struggle with, but the bright-line doesn't change.

Justice Alito: What about the situation where there are multiple occupants but there's probable cause to arrest only one of the occupants?

Mr. Jacobs: The consistent holdings of this Court, in analyzing this type of situation under the Fourth Amendment, have held that the arrestee is the focus of the inquiry into determining whether there is an exempt to the Fourth Amendment requirement. And this dovetails, essentially, into the argument we have against the Petitioner's thought that third parties should be the focus. But they weren't in Chimel, they weren't in Mincey, they weren't in Buie.

Justice Alito: Isn't that going to be -- aren't cases like that going to be difficult calls as to whether there's officer safety concerns?

Mr. Jacobs: No. They are not going to be difficult calls. The focus being on the arrestee, the officer --

Justice Alito: One person is arrested, three people who were occupants are not arrested. They are all out by the side of the car. One of them is in handcuffs. Three of them are not arrested, not in handcuffs. There's no danger of officer safety there -- three people?

Mr. Jacobs: Officers have -- well, first of all, again, the focus for the analysis is on the danger from the arrestee, and we know that from Buie and the many cases that go with it. But, importantly, officers have other tools that they can use, other than searching somebody's car when they don't have probable cause.

They can temporarily detain people for investigative purposes. They can separate them from the area of vehicle and the arrest, and move them away.

They call for backup typically. In this case, for example, they had -- they had four or five officers on scene, and the scene, objectively, according to the officers, was secure. They said they had control of the scene.

And that's an example of the use of police procedures that are available other than searching that establish officer safety and serve to protect our officers in the field without offending the Fourth Amendment.

If there are no further questions, I will yield the floor. Thank you.

REBUTTAL ARGUMENT OF JOSEPH T. MAZIARZ ON BEHALF OF THE PETITIONER

Chief Justice Roberts: Thank you, counsel.

Mr. Maziarz, you have two minutes remaining.

Mr. Maziarz: Thank you Mr. Chief Justice.

Unless there are any questions, I'll waive rebuttal.

Chief Justice Roberts: Thank you.

The case is submitted.

(Whereupon, at 11:56 a.m., the case in the above-entitled matter was submitted.)