HARVARD LAW REVIEW
[Vol. 118:248
majority instead introduced further uncertainty into an already muddy
test.
B. CriminalLaw and Procedure
Fourth Amendment Vehicular Searches. The Fourth
Amendment generally requires law enforcement officers to obtain a
warrant before conducting a search or seizure.' Nonetheless, the Supreme Court has created many exceptions to the warrant requirement.
In Chimel v. California,2 the Court permitted a warrantless search of
an arrestee and the immediate area surrounding him, but denied officers the right to search the entire home incident to the arrest.3 In New
York v. Belton,4 the Court extended Chimel to create a bright-line rule
enabling officers to search the entire passenger compartment of a car
following the arrest of its occupant.5 Last Term, in Thornton v. United
States,6 the Court expanded Belton's rule to allow officers who initiate
contact with an arrestee after he exits a vehicle to search the automobile. 7 The Court's decision in Thornton failed to address the unsound
bases of Chimel and Belton and created new ambiguities for lower
courts and law enforcement officers.
On July 21, 2001, Officer Deion Nichols was on patrol in an unmarked police car when he noticed a Lincoln Town Car driving with
license plates registered to another car.8 Before Nichols could pull the
vehicle over, it stopped in a parking lot and the driver, Marcus Thornton, exited. 9 Officer Nichols stopped his car and confronted Thornton,
I.
sion to send legislation back to the legislature. In addition, such a ruling would not have left individuals bereft of federal recourse against discrimination. See supra note 6.
1 See, e.g., Katz v. United States, 389 U.S. 347, 356-57 (1967).
2 395 U.S. 752 (1969).
3 See id. at 762-63. The Court later allowed officers to conduct a "protective sweep" of a
home if they had a "reasonable belief' supported by "specific and articulable facts" that another,
potentially dangerous person was on the premises. Maryland v. Buie, 494 U.S. 325, 327 (1990)
(quoting Michigan v, Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. I, 21
(1968)) (internal quotation mark omitted)) (internal quotation mark omitted). The Court also determined that a full search of a person incident to a lawful custodial arrest is not only an exception to the warrant requirement, but also is reasonable under the Fourth Amendment. See United
States v. Robinson, 414 U.S. 218, 235 (1973). Accordingly, such a search is always proper, regardless of the specific facts of a case. Id.
4 453 U.S. 454 (981).
5 Id. at 46o-61. Belton enabled officers to search closed containers in the passenger compartment because such containers generally will be within an arrestee's reach and may include a
weapon or destructible evidentiary item. Id.
6 124 S. Ct. 2127 (2004).
7 Id. at 2 132.
8 United States v. Thornton, 325 F.3 d 189, 190 (4 th Cir. 2003). Officer Nichols ran a check on
the license plates after he became suspicious because the car had slowed down, allegedly to avoid
driving next to him. Id.
9 Id.
2004]
THE SUPREME COURT -
LEADING CASES
who relinquished crack cocaine and marijuana from his pocket.10 Officer Nichols arrested Thornton and secured him in the back of the patrol car.1- Nichols then searched Thornton's vehicle and found a .9millimeter handgun under the driver's seat.12 Thornton was charged
in the United States District Court for the Eastern District of Virginia
with three counts of federal narcotics and firearms offenses.' 3 He unsuccessfully moved to suppress the firearm as the fruit of an unconsti5
tutional search 14 and was convicted on all counts.'
On appeal, Thornton challenged the district court's refusal to suppress the firearm,' 6 arguing that under Belton, an officer may conduct
a search of an automobile incident to arrest only if the officer initiates
contact with the arrestee while he is still in the car.17 A three-judge
panel of the Fourth Circuit
8
unanimously affirmed the district court's
refusal to suppress the evidence. 19 The Fourth Circuit noted that the
Supreme Court had previously indicated in dicta that Belton applied
in situations similar to Thornton's. 2 0 Additionally, the court contended
10 Id. at 191. Thornton allegedly "appeared nervous" and told Nichols that someone had
given him the car. Id. For his own safety, Officer Nichols asked Thornton whether he had any
narcotics or weapons on him or in the car. Id. Thornton said no and allowed Nichols to pat him
down. Id. Officer Nichols felt a bulge in Thornton's front left pocket; when he again asked
Thornton whether he had any narcotics, Thornton produced two bags containing the crack and
the marijuana. Id.
11 Id.
12 Id.
13 Id. Thornton was charged with possession of a firearm after having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18
U.S.C. § 922(g)(I), possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(i), and possession of a firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(I). Id.
14 Thornton, 124 S.Ct. at 2129. The district court held that Nichols lawfully searched Thornton's vehicle incident to his arrest and, alternatively, that Nichols could have lawfully conducted
an inventory search of the vehicle. Thornton, 325 F.3 d at 191.
15 Thornton, 325 F.3 d at 191. Thornton was sentenced to 18o months of imprisonment and
eight years of supervised release. Id.
16 Id. Thornton did not appeal the district court's denial of a motion to suppress the narcotics
found on him or its denial of a motion to suppress a statement that he made to Officer Nichols in
the police car. Id.
17 Id. at 191-92.
18 The opinion was written by Judge Motz, who was joined by Judges Widener and Williams.
19 Thornton, 325 F 3d at 193-94. Federal and state courts were split on whether Belton's rule
applied to people in Thornton's situation. Compare United States v. Hudgins, 52 F.3 d 115, 119
(6th Cir. 1995) (finding search unconstitutional), United States v. Fafowora, 865 F.2d 360, 362
(D.C. Cir. 1989) (same), and State v. Stehman, 783 N.E.2d i, 6 (Ill. 2002) (same), cited in Thornton, 325 F.3 d at 193-94, with United States v. Sholola, 124 F.3 d 803, 817 (7th Cir. 1997) (finding
search constitutional), United States v. Snook, 88 F. 3d 605, 6o6 (8th Cir. 1996) (same), United
States v. Franco, 981 F.2d 470, 473 (ioth Cir. 1992) (same), and State v. Wanzek, 598 N.W.2d 811,
815 (N.D. 1999) (same), cited in Thornton, 325 F.3 d at 194.
20 Thornton, 325 F. 3d at 194-95 (discussing a case in which officers confronted a former occupant of a vehicle and the Supreme Court, applying Belton, said that "[iut is clear, and the respondent concedes, that if the officers had arrested [the defendant,] . .. they could have searched the
HARVARD LAW REVIEW
[Vol. 118:248
that the rationales behind allowing a search of a vehicle incident to an
arrest - the interests in protecting officer safety and in preventing the
destruction of evidence - still apply when officers initiate contact
with a person after he has exited a vehicle."
The Supreme Court affirmed. Writing for the Court, Chief Justice
Rehnquist
22
held that an officer can search an automobile incident to
arrest even if the initial confrontation occurs after the arrestee has exited the vehicle. 2 3 Describing the risks inherent to an arrest environment, the Court contended that "the arrest of a suspect who is next to
a vehicle presents identical concerns regarding officer safety and the
24
destruction of evidence as the arrest of one who is inside the vehicle."
The Court also asserted that a rule that rewards officers for initiating
contact while a suspect is still in a vehicle may require officers to take
a "gamble" with their safety that the Fourth Amendment does not require.2 5 The Court finally noted that the respondent in Belton had not
been inside the car at the time of the arrest and search 26 and, therefore, that "Belton allow[ed] police to search the passenger compartment of a vehicle incident to a lawful custodial arrest of both 'occu27
pants' and 'recent occupants.'
Justice Scalia concurred in the judgment,28 but noted that "[t]he
Court's effort to apply our current doctrine to this search stretches it
beyond its breaking point. '29 Justice Scalia considered numerous arguments in support of the position that the search in Thornton might
have protected officer safety or prevented the destruction of evidence,
passenger compartment." (first alteration and omission in original) (quoting Michigan v. Long,
463 U.S. 1032, 1035 n.i (1983)) (internal quotation mark omitted)).
21 Id. at 195-96. The Fourth Circuit acknowledged that "[tihe Belton rule cannot be stretched
so as to render it limitless by permitting officers to search any vehicle from which an arrestee has
emerged," but held that such concerns were not implicated here because "Thornton concede[d at
trial] that he was in close proximity to his vehicle when Officer Nichols approached him." Id. at
196.
22 Chief Justice Rehnquist was joined in full by Justices Kennedy, Thomas, and Breyer. Jus-
tice O'Connor concurred in part, joining the majority opinion in its entirety except as to footnote
4. In footnote 4, Chief Justice Rehnquist contended that Justice Scalia's proposed resolution of
the case, as described in his concurrence in the judgment, was improper because it went beyond
the issues raised on appeal. Thornton, 124 S. Ct. at 2132 n.4.
23 Id. at 2130.
24 Id. at 2131.
25 Id. ("In some circumstances it may be safer and more effective for officers to conceal their
presence from a suspect until he has left his vehicle.").
26 Id.;see also id. at 2132 (noting further that "the firearm and the passenger compartment [in
Thornton] were no more inaccessible than were the contraband and the passenger compartment in
Belton").
27 Id. at 2131 (quoting New York v. Belton, 453 U.S. 454, 460 (198o)).
28 Justice Scalia was joined by Justice Ginsburg.
29 Thornton, 124 S. Ct. at 2133 (Scalia, J., concurring in the judgment).
2004]
THE SUPREME COURT -
LEADING CASES
but found each one unpersuasive. 30 Responding to an argument that
the benefits of Belton's bright-line rule outweigh the rule's potential
overinclusiveness, Justice Scalia argued that Belton's rule rests on a
weak rationale because most Belton searches occur after the arrestee is
already secured in a police car. 3' Justice Scalia therefore contended
that Belton searches can only be justified on the ground that the car
might contain evidence relevant to the arrest. 32 He concluded that
Belton "is a return to the broader sort of search incident to arrest that
we allowed before Chimel - limited, of course, to searches of motor
vehicles, a category of 'effects' which give rise to a reduced expectation of privacy. ' 33 Justice Scalia proposed "limit[ing] Belton searches
to cases where it is reasonable to believe evidence relevant to the crime
'34
of arrest might be found in the vehicle.
Justice Stevens dissented. 35 He argued that "Belton's basic rationale ... rested not on a concern for officer safety, but rather on an overriding desire to hew 'to a straightforward rule, easily applied, and predictably enforced."'' 36 According to Justice Stevens, Belton was
adopted because lower courts had difficulty dealing with "the narrow
but common circumstance of a search occasioned by the arrest of a
suspect who was seated in or driving an automobile at the time [a] law
enforcement official approached. '37 Accordingly, Justice Stevens argued that Belton was not intended to extend to Thornton's situation,
noting that "Chimel itself provide[d] all the guidance that is neces30 Id. at 2134. One argument was that "despite being handcuffed and secured in the back of a
squad car, [Thornton] might have escaped and retrieved a weapon or evidence from his vehicle."
Id. Justice Scalia countered this notion by observing that this type of event almost never occurred
in practice. Id. A second argument was that "since the officer could have conducted the search at
the time of arrest (when the suspect was still near the car), he should not be penalized for having
taken the sensible precaution of securing the suspect in the squad car first." Id. Justice Scalia
responded that "[t]he weakness of this argument is that it assumes that, one way or another, the
search must take place." Id. He added: "conducting a Chimel search is not the Government's
right; it is an exception - justified by necessity - to a rule that would otherwise render the
search unlawful." Id.
31 Id.
32 See id. at 2135. Justice Scalia wrote that "[t]he fact of prior lawful arrest distinguishes the
arrestee from society at large, and distinguishes a search for evidence of his crime from general
rummaging." Id. at 2136 (emphasis omitted). He further asserted that many cases prior to
Chimel had supported warrantless searches for gathering evidence related to a crime for which a
person was arrested. See, e.g., United States v. Rabinowitz, 339 U.S. 56, 60-64 (950); United
States v. Wilson, 163 F. 338, 340, 343 (C.C.S.D.N.Y. 19o8), cited in Thornton, 124 S. Ct. at 2 13536 (Scalia, J., concurring in the judgment).
33 Thornton, 124 S. Ct. at 2137 (Scalia, J., concurring in the judgment).
34 Id.; see also id. ("A motorist may be arrested for a wide variety of offenses; in many cases,
there is no reasonable basis to believe relevant evidence might be found in the car.").
35 Justice Stevens was joined by Justice Souter.
36 Thornton, 124 S. Ct. at 2138 (Stevens, J., dissenting) (quoting New York v. Belton, 453 U.S.
a98i)).
454,
37 459
Id. at
2 139.
HARVARD LAW REVIEW
[Vol. 1 18:2 48
sary."'38 Further, he feared that the majority's ruling would permit vehicle searches in situations in which probable39 cause existed for an arrest but not for a freestanding vehicle search.
Thornton led the search incident to arrest doctrine further astray
from its purported justifications of protecting officer safety and preventing the destruction of evidence. Although the Thornton majority
expanded Belton in an attempt to provide officers with a clear, brightline rule, it failed to acknowledge that Belton's rationale is inapposite
for defendants in Thornton's situation. The majority instead created a
muddy standard: now officers and courts will need to perform a caseby-case analysis to determine whether a person is temporally and spatially close enough to being a vehicle occupant to justify a Belton
search. Additionally, Thornton continued the logically incoherent
trend started by Chimel and Belton of allowing warrantless searches
even after an arrestee has been secured and no longer presents a
threat.
In Chimel, the Court limited a warrantless search incident to arrest
to the area immediately surrounding the arrestee. 40 In Belton, the
Court adapted the Chimel test to create a spatial bright-line rule that
allowed police to search the entire passenger compartment of a vehicle
incident to the arrest of an occupant. 4 1 The Court created this inclusive rule because "courts [had] found no workable definition of 'the
area within the immediate control of the arrestee"' in the automobile
context. 42 Thus, the Belton rule was intended to clarify for officers the
43
area they could search that was conceivably within a suspect's reach.
Belton's rationale, however, does not support expanding its rule to
a defendant in Thornton's situation. Once a suspect has exited a vehicle and the police have arrested and secured him, he has no practical
ability to obtain a weapon or evidence from inside the vehicle. 44 Accordingly, the uncertainty as to the precise reach of a vehicle occupant
that might have existed in Belton was not present in Thornton. Because there is no question that the interior of the car is not within
reaching distance of an arrestee such as Thornton, a recent occupant
38 Id. at 2140. Justice Stevens added that courts would have trouble determining "how recent
is recent, or how close is close" when deciding whether Belton applies in other cases. Id.
39 See id.
Chimel v. California, 395 U.S. 752, 762-63 (1969).
41 See New York v. Belton, 453 U.S. 454, 46o-61 (i98i).
40
42
Id. at 460.
43 See id. at 459-60.
o
44 See supra note 3 . The disparity between this application of Belton's bright-line rule and
its purported rationale was so severe that Justice Scalia refused to join the Thornton majority,
even though he usually prefers rules to standards. See generally Antonin Scalia, The Rule of Law
as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989) (discussing the advantages of establishing
rules).
2004]
THE SUPREME COURT -
LEADING CASES
of a vehicle is no different from an ordinary Chimel arrestee. 45 Thus,
the Thornton Court simply should have applied Chimel rather than
expanding Belton's bright-line rule and permitting a car search.
By refusing to apply Chimel directly, the Thornton Court created
greater confusion for officers and lower courts, who must now determine at what point the Belton "recent occupant" rule gives way to the
general Chimel standard. Although police officers would have to make
some fact-specific determinations when applying Chimel to former occupants of vehicles, these inquiries still would be relatively straightforward: the officers would treat such individuals like they treat other
people they arrest on the street. Instead, the Court confused its jurisprudence by holding that Belton, and not Chimel, applies to some
former vehicle occupants. Thornton forces officers and courts to assess
the temporal and spatial proximity of a person to a vehicle in order to
determine whether the person is "close enough" to the vehicle to justify
a search of the passenger compartment. 46 Such a test is precisely the
type of "inherently subjective
and highly fact specific" 47 inquiry the
48
Court sought to avoid.
More troublesome, by expanding Belton's rule so that it applies to
recent occupants of vehicles, the Court allowed the search incident to
arrest doctrine to drift further away from its initial purpose as a variant of the "exigent circumstances" exception. In Chimel, the Court justified searching the area within reaching distance of an arrestee on the
ground that this practice could protect officer safety and prevent the
destruction of evidence. 49 As a result, such searches were supposed to
45 Justice Stevens advocated this approach in his dissent, arguing that "[t]he Chimel rule
should provide the same protection to a 'recent occupant' of a vehicle as to a recent occupant of a
house." Thornton, 124 S. Ct. at 2140 (Stevens, J., dissenting). The majority responded to this argument:
Under Justice Stevens' approach . . . even if the car itself was within the arrestee's
reaching distance under Chimel, police officers and courts would still have to determine
whether a particular object within the passenger compartment was also within an arrestee's reaching distance under Chimel. This is exactly the type of unworkable and
fact-specific inquiry that Belton rejected ....
Thornton, 124 S. Ct. at 2132 n.3. The majority's argument, however, assumes that a secured arrestee outside a vehicle can reach objects inside the vehicle. As Justice Scalia noted, such a situation almost never occurs in practice. See supra note 30. In the rare instance that a secured arrestee could reach objects inside the vehicle, Chimel would permit the search of the vehicle
incident to the arrest.
46 See supra note 38.
47 See Thornton, 124 S. Ct. at 2132.
48 As Justice Stevens observed in his dissent, "the Court extends Belton's reach without supplying any guidance for the future application of its swollen rule." Id. at 2140 (Stevens, J., dissenting); see also Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT.
L. REV. 227, 231 (1984) ("Not only do categorical fourth amendment rules often lead to substantial
injustice; in addition, their artificiality commonly makes them difficult, not easy, to apply.").
49 See Chimel v. California, 395 U.S. 752, 762-63 (1969).
HARVARD LAW REVIEW
[Vol. 118:248
be "substantially contemporaneous" with an arrest. s °
Nonetheless,
courts regularly uphold searches that take place after an arrestee has
been secured away from the arrest site.s
This trend continued after
Belton, as police officers often search a vehicle even after its previous
occupants have been secured away from it.52 Thus, even before
Thornton, courts were upholding searches incident to arrest that occurred after an arrestee had already been secured, such that exigent
circumstances could.not justify the search.
Thornton has exposed and expanded on this fundamental flaw in
the Court's jurisprudence. Belton allows an officer to search a vehicle
after a former occupant has been arrested and taken away from the
scene;5 3 Thornton allows such a search to occur even if the occupant
was never in the vehicle during the confrontation with the officer. As
Justice Scalia lamented, quoting Judge Trott of the Ninth Circuit:
"[I]n our search for clarity, we have now abandoned our constitutional
moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective
or reason for the search
are allowed to rummage around in a car to see
'5 4
what they might find."
Thornton made apparent what has been true since Chimel: exigent circumstances cannot serve as a justification for a search incident to arrest if the search occurs after an arrestee has already been secured.
The Thornton Court could have reconciled the search incident to
arrest doctrine with its justification in a number of principled ways.
50 As Justice Brennan noted in his Belton dissent, the Chimel doctrine "places a temporal and
a spatial limitation on searches incident to arrest, excusing compliance with the warrant requirement only when the search "'is substantially contemporaneous with the arrest and is confined to
the immediate vicinity of the arrest.""' New York v. Belton, 453 U.S. 454, 465 (I981) (Brennan, J.,
dissenting) (quoting Shipley v. California,395 U.S. 818, 819 (1969) (quoting Stoner v. California,
376 U.S. 483, 486 (1964))).
51 See, e.g., United States v. Nelson, 102 F.3 d 1344, 1347 ( th Cir. 1996) ("While the need for
4
the incident-to-arrest exception is indeed grounded on the need to protect law enforcement officers and evidence, the validity of such a search does not end at the instant the risks justifying the
search come to an end."); United States v. Abdul-Saboor, 85 F. 3 d 664, 666-68 (D.C. Cir. 1996)
(upholding search of a bedroom after arrestee was secured outside the room). But see United
States v. Chadwick, 433 U.S. i, 14-15 (977) (holding that a search that occurred at a police station more than an hour after arrest was invalid).
52 As Justice Scalia observed, most Belton searches occur in this context. See Thornton, 124 S.
Ct. at 2135 (Scalia, J., concurring in the judgment) (citing, inter alia, Myron Moskovitz, A Rule in
Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 WIS. L. REV 65 7,
665-66); see also United States v. McLaughlin, 17o F.3 d 889, 89o-91 ( 9 th Cir. 1999) (upholding a
car search even though a squad car had just left the scene with the arrestee).
53 See Belton, 453 U.S. at 468 (Brennan, J., dissenting) ("[T]he Court for the first time grants
police officers authority to conduct a warrantless 'area' search under circumstances where there is
no chance that the arrestee 'might gain possession of a weapon or destructible evidence."' (quoting Chimel, 395 U.S. at 763)).
S4 Thornton, 124 S.Ct. at 2135 (Scalia, J., concurring in the judgment) (alteration in original)
(quoting McLaughlin, 17o F. 3d at 894 (TMott, J., concurring)).
2004]
THE SUPREME COURT -
LEADING CASES
One approach would have been to change the doctrine's justification,
as Justice Scalia proposed in his concurrence in the judgment. 55 Justice Scalia suggested that Thornton could be justified under an evidence-gathering rationale that would permit Belton searches "where it
is reasonable to believe evidence relevant to the crime of arrest might
be found in the vehicle. '56 Although evidence-gathering searches are
more logically coherent than Belton searches as currently understood,
the Court stopped applying the evidence-gathering rationale decades
ago.5 7 Establishing a regime of evidence-gathering searches, even if
limited to motor vehicles, would overturn Chimel in that context and
would create another exception to the warrant requirement.5 8 Furthermore, as Justice Stevens noted in his dissent, evidence-gathering
searches could be criticized because they decrease privacy rights:
The only genuine justification for extending Belton to cover [the circumstances in Thornton] is the interest in uncovering potentially valuable evidence. In my opinion, that goal must give way to the citizen's constitutionally protected interest in privacy when there is already in place a welldefined 5rule
limiting the permissible scope of a search of an arrested pe9
destrian.
Although Justice Scalia's evidence-gathering approach is a principled
way to resolve the problems in Chimel and Belton, it represents a radi-
55 See supra note 32 and accompanying text.
56 Thornton, 124 S. Ct. at 2137 (Scalia, J., concurring in the judgment). Justice Scalia also observed that the temporal problems latent in the search incident to arrest doctrine could be traced
back to Belton. See id. at 2135 (noting that most arrestees are secured before a search incident to
arrest is performed, thereby weakening the Belton majority's claim that an arrestee can reach
weapons or evidence in the passenger compartment). These problems, however, began even earlier, with Chimel.
57 The most recent case cited by Justice Scalia that supports the evidence-gathering rationale
is United States v. Rabinowitz, 339 U.S. 56 (i95o). See Thornton, 124 S.Ct. at 2135 (Scalia, J.,
concurring in the judgment).
58 See Thornton, 124 S.Ct. at 2137-38 (Scalia, J., concurring in the judgment). Justice Scalia
has previously advocated replacing the warrant requirement with a more general reasonableness
inquiry. See, e.g., California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring in the
judgment) (noting that the warrant requirement was "riddled with exceptions" and that "the path
out of this confusion [is to return] to the first principle that the 'reasonableness' requirement of
the Fourth Amendment affords the protection that the common law afforded").
59 See Thornton, 124 S.Ct. at 2140 (Stevens, J., dissenting). The Thornton Court also declined
to follow Justice Scalia's proposed approach. Thornton, 124 S.Ct. at 2132 n.4. The Court contended that Supreme Court rules prevented consideration of the evidence-gathering rationale:
Whatever the merits of Justice Scalia's opinion concurring in the judgment, this is the
wrong case in which to address them. Petitioner has never argued that Belton should be
limited "to cases where it is reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle," nor did any court below consider Justice Scalia's reasoning.
Id. (citation omitted). Justice Scalia responded that Supreme Court rules did not prevent the
Court from reaching this issue, and he implied that consideration of the issue was necessary to
resolve the case intelligently. See id. at 2138 n.3 (Scalia, J., concurring in the judgment).
HARVARD LAW REVIEW
[Vol. i1i81248
cal and possibly undesirable departure from the Court's current
Fourth Amendment jurisprudence.
A less extreme way to reformulate the search incident to arrest doctrine would have been to require a stricter temporal connection between the time an arrestee is secured and the incident search. Under
this interpretation, any search incident to arrest would be invalid after
an arrestee has been secured and, therefore, such a search could not be
performed after the exigency has ended. A "secured" arrestee would
be one who poses a minimal risk to officer safety or destructible evidence. A "reasonable person" standard could be used to determine
whether the arrestee is secured. 60 Alternatively, the Court could have
applied a stricter temporal restriction only to searches of vehicles.
When an occupant of a vehicle has been arrested and secured outside,
the exigency has passed, and a car search cannot be justified under the
search incident to arrest doctrine. Either of these holdings would have
reaffirmed Chimel's underlying principle that a search incident to arrest is an exception to the warrant requirement and that such searches
are tolerated only when exigent circumstances are likely to be present.
The Thornton Court missed an opportunity to clarify its Fourth
Amendment jurisprudence. In its quest to expand bright-line rules,
the Court extended Belton to a point where its application no longer
makes sense, creating greater confusion for officers and lower courts.
Instead of reasserting that exigency is the rationale behind Chimel and
Belton searches, the Court moved the search incident to arrest doctrine
further away from its purported justification. Thus, Thornton expands
the scope of a doctrine whose foundation remains logically incoherent.
2. Fourth Amendment Warrant Requirements. - The Fourth
Amendment,1 born of the Framers' fear of a police power checked
only by executive discretion, 2 enables the judiciary to help define the
contours of the relationship between the people and their law enforcement officers. 3 Recognizing the openness of the amendment's Reasonableness Clause, 4 the Supreme Court has long successfully balanced
60 Under this standard, an arrestee like Thornton, who had been handcuffed and placed in the
back of a patrol car, would be characterized as "secured."
1 U.S. CONsT.amend. IV.
2 See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 772-78
(1994) (describing the connection between the development of the Fourth Amendment and AntiFederalist concerns, especially regarding "general warrants" that would deny the victims of intrusive, potentially humiliating searches recourse to damage remedies); cf. Groh v. Ramirez, 124 S.
Ct. 1284, 1298 (2004) (Thomas, J., dissenting) (identifying "general warrants" as the "principal target" of the amendment's framers).
3 See, e.g., Thornton v. United States, 124 S. Ct. 2127, 2131-32 (2004) (using the Fourth
Amendment to mediate between officer safety and civil liberties and concluding that officers may
search a car from which an arrestee flees without a warrant as a search incident to an arrest).
4 U.S. CONST. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....").