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GLASCO v. COMMONWEALTH OF VA (59825)


GLASCO

v.

COMMONWEALTH OF VA


February 26, 1999
Record No. 980909

TODD M. GLASCO

v.

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER


After a bench trial on December 5, 1996, Todd
M. Glasco was convicted in the Circuit Court of the City of
Newport News of possession of cocaine with intent to distribute,
in violation of Code Sect. 18.2-248, and possession of a
firearm while in possession of cocaine, in violation of Code
Sect. 18.2-308.4.
[1] We granted Glasco this appeal on a single issue
regarding the legality of a search of the passenger compartment
of his vehicle incident to his arrest. Because we conclude that
he was a recent occupant of the vehicle prior to his arrest, we
will affirm the judgment of the Court of Appeals finding that the
search was lawful.

I.

On May 4, 1996, around 11:00 o’clock p.m.,
Wesley T. Filer, a uniformed police officer for the City of
Newport News, was on duty and patrolling in a marked police
vehicle when he observed a vehicle that he suspected was being
operated by Glasco. Filer was familiar with both the vehicle and
Glasco because of a recent encounter with Glasco. Filer had
arrested Glasco on an outstanding capias for failure to pay
traffic fines approximately two weeks prior to this particular
evening. Based on his knowledge that a driver’s failure to
pay fines normally resulted in suspension of that person’s
operator’s license and given his previous arrest of Glasco,
Filer suspected that Glasco’s license to operate a motor
vehicle had been suspended. However, Filer decided not to stop
the vehicle at that time. Instead, he chose to follow the car so
that he could determine whether Glasco was, in fact, the driver.

While following the vehicle, Filer contacted
his dispatcher and requested that a check be made with the
Division of Motor Vehicles (DMV) in order to determine the status
of Glasco’s operator’s license. Before Filer received a
response to his request, Glasco pulled his vehicle over to the
right-hand side of the street and legally parked it there. Glasco
then got out of the vehicle and began to walk toward a house on
the other side of the street. At that point, Filer stopped his
police cruiser approximately 20 to 30 feet behind Glasco’s
vehicle. After activating his rear strobe light and exiting his
police car, Filer called out, "Mr. Glasco, you don’t
have a valid license, do you?" According to Filer, Glasco
then turned around and began walking toward Filer, at which time
Glasco answered, "Come on, Filer, can’t you just give
me a break?" Filer requested Glasco to show some form of
identification. Glasco produced a Virginia identification card
but no operator’s license. In the meantime, Filer learned,
based on the check with DMV, that Glasco’s operator’s
license was, in fact, suspended. Thus, he charged Glasco with
"driving under suspension" and placed him under arrest.

Incident to the arrest, Filer searched
Glasco’s person and found two small bags containing
marijuana in the right, front pocket of Glasco’s shorts. He
also found $650 in cash and a pager on Glasco’s person.
Filer then put Glasco in the backseat of his police vehicle and
asked a backup police officer, John V. Polak, to search
Glasco’s car. During this search, Polak found a .38 caliber
handgun in the pocket of the driver’s door and a clear,
plastic bag containing, what he thought was and later, when
analyzed, proved to be, crack cocaine under the floor mat on the
driver’s side of the vehicle.

At a hearing before the trial court on a motion
to suppress the evidence found during the search of the vehicle,
Filer admitted that he "had no probable cause to
believe" that there was any contraband or narcotics in the
vehicle when he asked Polak to search it. He did, however, assert
that he had a "hunch there might be some narcotics located
in the vehicle" based on information that he had received in
the past regarding Glasco’s involvement with narcotics, and
because he had recovered narcotics from his person. The trial
court concluded that, once Filer found drugs in Glasco’s
pocket, there was "probable cause to believe possibly there
[were] narcotics in the vehicle." Accordingly, the court
overruled Glasco’s motion to suppress the evidence recovered
during the search of the vehicle.

Before the Court of Appeals, Glasco challenged
the sufficiency of the evidence to support his convictions and
the legality of both the initial encounter with the police
officer and the subsequent search of his vehicle incident to his
arrest. With regard to the issue before this Court, the Court of
Appeals concluded that the search of Glasco’s automobile
incident to arrest was lawful because it was
"contemporaneous with the arrest and the arrestee’s
recent occupancy of the vehicle." Glasco v. Commonwealth,
26 Va. App. 763, 773, 497 S.E.2d 150, 154 (1998).
[2] Thus, the Court of Appeals affirmed the judgment of the
trial court. Id. at 776, 497 S.E.2d at 156.

II.

We begin our analysis of a search incident to
arrest with the decision of the United States Supreme Court in Chimel
v. California
, 395 U.S. 752 (1969). In that case, the Court
defined the parameters of a lawful search incident to arrest:

When an arrest is made, it is
reasonable for the arresting officer to search the person
arrested in order to remove any weapons that the latter
might seek to use in order to resist arrest or effect his
escape. Otherwise, the officer’s safety might well
be endangered, and the arrest itself frustrated. In
addition, it is entirely reasonable for the arresting
officer to search for and seize any evidence on the
arrestee’s person in order to prevent its
concealment or destruction. And the area into which an
arrestee might reach in order to grab a weapon or
evidentiary items must, of course, be governed by a like
rule. A gun on a table or in a drawer in front of one who
is arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person arrested.
There is ample justification, therefore, for a search of
the arrestee’s person and the area "within his
immediate control" — construing that phrase to
mean the area from within which he might gain possession
of a weapon or destructible evidence.

Id. at 762-63.

Several years after the Chimel decision,
the Supreme Court acknowledged that the extent of the area that
is within an arrestee’s control and thus subject to being
searched had been construed in different ways. United States
v. Robinson
, 414 U.S. 218, 224 (1973). With regard to the
search of a vehicle incident to arrest, the Supreme Court later
stated that the "courts have found no workable definition of
‘the area within the immediate control of the arrestee’
when that area arguably includes the interior of an automobile
and the arrestee is its recent occupant." New York v.
Belton
, 453 U.S. 454, 460 (1981). Thus, the Court established
a "bright-line" rule to govern such searches:
"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." Id.

Using this rule, the Court upheld the legality
of the automobile search at issue in Belton. The police
officer in that case had stopped a vehicle, in which Belton was a
passenger, for travelling at an excessive rate of speed. Id.
at 455. After directing Belton and the other occupants to get out
of the automobile, the officer arrested them for unlawful
possession of marijuana. Incident to the arrest, he searched the
interior passenger compartment of the vehicle. Id. at 456.
During the search, the police officer found cocaine in the pocket
of Belton’s jacket that had been lying on the back seat of
the car. Id.

Belton established a two-part inquiry
for determining the legality of a search of a vehicle incident to
arrest: (1) whether the defendant was the subject of a lawful
custodial arrest; and (2) whether the arrestee was the occupant
of the vehicle that was searched. People v. Savedra, 907
P.2d 596, 598-99 (Colo. 1995). The present appeal involves the
second part of the inquiry and requires that we address the scope
of the terms "occupant" and "recent occupant"
as used by the Supreme Court in Belton.

Glasco contends that the search of his vehicle
violated his Fourth Amendment right against unreasonable searches
and seizures because he was not a recent occupant of the vehicle
at the time of his arrest. He had parked his vehicle and was
walking across the street when Filer first initiated contact with
him. Further, argues Glasco, he was sitting in the back seat of
Filer’s police cruiser, parked 20 to 30 feet behind
Glasco’s vehicle, when Polak actually searched the vehicle.
Thus, according to Glasco, he was not in a position to seize a
weapon out of the vehicle or to destroy evidence in it.

Initially, we conclude that certain facts in
this case do not render the search of Glasco’s vehicle
outside the parameters of a lawful search incident to arrest. The
fact that Glasco was not physically in the vehicle when he was
arrested or when Polak searched the vehicle does not mean that
Glasco was not a recent occupant of the vehicle. The defendant in
Belton likewise was outside the vehicle when the police
officer arrested him and conducted the vehicle search. 453 U.S.
at 457. "A police officer may search the passenger
compartment of an automobile incident to the lawful custodial
arrest . . . even if the arrestee has been separated
from his car prior to the search." United States v. Mans,
999 F.2d 966, 968-69 (6th Cir. 1993); accord United
States v. Snook
, 88 F.3d 605, 608 (8th Cir. 1996);
United States v. Milton, 52 F.3d 78, 80 (4th
Cir. 1995); United States v. Franco, 981 F.2d 470, 473 (10th
Cir. 1992); United States v. Karlin, 852 F.2d 968, 971 (7th
Cir. 1988).

Similarly, the fact that Glasco was sitting in
the back seat of Filer’s police cruiser when Polak searched
the vehicle, thus arguably not in a position to seize a weapon or
destroy evidence, does not change the result. "[O]fficers
may conduct valid searches incident to arrest even when the
officers have secured the suspects in a squad car and rendered
them unable to reach any weapon or destroy evidence." United
States v. Willis
, 37 F.3d 313, 317 (7th Cir.
1994); accord United States v. Patterson, 993 F.2d
121, 123 (6th Cir. 1993); United States v. Cotton,
751 F.2d 1146, 1149 (10th Cir. 1985); Gundrum v.
State
, 563 So.2d 27, 28-29 (Ala. Crim. App. 1990); State
v. Weathers
, 506 S.E.2d 698, 699 (Ga. App. 1998); but see
United States v. Vasey, 834 F.2d 782, 788 (9th
Cir. 1987).

The pivotal fact in this case is that Glasco
had voluntarily exited the vehicle before Filer initiated any
contact with him, either by confronting Glasco directly or by
signaling confrontation with the lights or siren on the police
cruiser. Other courts that have considered the question whether
an arrestee in this situation is still a recent occupant of a
vehicle have reached differing conclusions.

A number of jurisdictions have held that an
arrestee is an occupant of a vehicle only when the police officer
arrests or at least initiates contact with the defendant while
the defendant is inside the automobile. See United States
v. Hudgins
, 52 F.3d 115, 119 (6th Cir.), cert. denied,
516 U.S. 891 (1995) ("[W]here the defendant has voluntarily
exited the automobile and begun walking away from the automobile
before the officer has initiated contact with him, the case does
not fit within Belton’s bright-line rule."); State
v. Vanderhorst
, 419 So.2d 762, 763-64 (Fla. Dist. Ct. App.
1982) (holding Belton not applicable where defendant was
attaching tow rope to vehicle when police approached and arrested
him for DUI); Commonwealth v. Santiago, 575 N.E.2d 350,
353 (Mass. 1991) (holding search of vehicle did not qualify as
search incident to arrest because defendant had already exited
automobile when officers apprehended him); People v. Fernengel,
549 N.W.2d 361, 362-63 (Mich. App. 1996) (finding Belton
not applicable when defendant voluntarily left vehicle before
police initiated contact).

Other courts have reached contrary results. See
Snook, 88 F.3d at 608 (holding that arrestee was occupant
of vehicle even though he had voluntarily stepped out of car as
police officer arrived); Willis, 37 F.3d at 317 (ruling
that Belton applied where police officer saw arrestee
sitting in vehicle and then sneaking out of it before officer
initiated any contact with arrestee); United States v. Arango,
879 F.2d 1501, 1506 (7th Cir. 1989), cert. denied,
493 U.S. 1069 (1990) (finding that defendant, who was first
detained by police while walking away from vehicle, then fled,
was arrested one block from vehicle, and was then returned to
vicinity of vehicle by police, was recent occupant under Belton);
State v. McLendon, 490 So.2d 1308, 1309-10 (Fla. Dist. Ct.
App. 1986) (extending Belton to justify vehicle search
where driver voluntarily got out of vehicle and was arrested
inside service station twenty to thirty feet away from vehicle); Savedra,
907 P.2d at 599 ("Belton can include situations where
the occupant of a vehicle anticipates police contact and exits
the vehicle immediately before that contact occurs."); People
v. Bosnak
, 633 N.E.2d 1322, 1326 (Ill. App. 1994) (holding
that arrestee was recent occupant of vehicle under Belton
rule where police officer followed vehicle but did not initiate
contact until arrestee parked vehicle and walked ten yards away).
[3]

As previously stated, the justification for a
search incident to arrest is to confiscate weapons that could
endanger the safety of the arresting police officer and to
prevent the destruction of evidence. Chimel, 395 U.S. at
763; Agnello v. United States, 269 U.S. 20, 30 (1925). The
Supreme Court’s purpose for enunciating the Belton
"bright-line" rule was twofold. The Court wanted to
create a straightforward definition of the area that is within
the immediate control of the arrestee, thus providing
"‘[a] single familiar standard . . . to guide
police officers, who have only limited time and expertise to
reflect on and balance the social and individual interests
involved in the specific circumstances they confront.’"
Belton, 453 U.S. at 458 (quoting Dunaway v. New York,
442 U.S. 200, 213-14 (1979)). The Court also sought to eliminate
the need for litigation in every case to determine whether the
passenger compartment of a vehicle is within the scope of a
search incident to arrest. McLendon, 490 So.2d at 1309-10.

Given these reasons, we are not persuaded by
the authorities that have decided that an arrestee is an occupant
or recent occupant of an automobile only if the police officer
initiates contact with the arrestee before that person exits the
vehicle. That kind of limitation assumes that an individual, who
voluntarily gets out of an automobile, is not aware of the
presence of a police officer, or having such knowledge, it did
not prompt the person to exit the vehicle. We do not believe that
those assumptions are always warranted. Moreover, a knowledgeable
suspect has the same motive and opportunity to destroy evidence
or obtain a weapon as the arrestee with whom a police officer has
initiated contact. That suspect could also conceal evidence in
the vehicle and effectively prevent an officer from discovering
it by getting out of his or her automobile.

Thus, as in the present case, when a police
officer observes an automobile, follows it because of his or her
prior knowledge regarding the vehicle and its suspected driver,
and arrests the driver in close proximity to the vehicle
immediately after the driver exits the automobile, we conclude
that the arrestee is a recent occupant of the vehicle within the
limits of the Belton rule. Accordingly, the search of the
passenger compartment of Glasco’s vehicle was a lawful
search incident to arrest.

For these reasons, we will affirm the judgment
of the Court of Appeals.

Affirmed.

 

JUSTICE LACY, with whom JUSTICE KOONTZ
joins, concurring

In this case the trial court denied Glasco’s
motion to suppress the evidence obtained as a result of the
search of Glasco’s car because it found that the police officer
had probable cause to conduct the search. The trial court
specifically held that the search was not justified as a search
incident to arrest. As I explain in this opinion, I believe the
trial court was correct on both rulings. Therefore, although I
disagree with the opinion of the Court of Appeals and the opinion
of the majority of this Court regarding the validity of the
search, I concur in the result reached by the majority affirming
the conviction of the defendant.

I. Search Incident to Arrest

The majority concludes that the search of the
vehicle in this case was a valid search incident to arrest
because it came within the rule announced in New York v.
Belton
, 453 U.S. 454 (1981). That rule, as stated by the
Supreme Court is: "[W]hen 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." Id. at 460
(footnotes omitted).

To reach its conclusion in this case, the
majority applies the rule in Belton to facts different
from those recited in that case in that the arrestee here was not
an occupant of the vehicle when arrested. This nonconforming
fact, standing alone, is not fatal, however, because in Belton
itself the defendant was not an occupant of the vehicle when
arrested; he had gotten out of the vehicle at the direction of
the arresting officer just prior to the arrest. Due to this
discrepancy between the rule as stated in Belton and the
facts of Belton, references in that opinion to a
"recent occupant" of a vehicle, see id.,
have been incorporated into the rule itself. However, nothing in Belton
specifically defined what circumstances qualified an arrestee as
a "recent occupant."

Consequently, from its inception, application
of the so-called "bright line" Belton rule has
not provided clear resolution of search issues in cases with
facts that do not mirror the facts in Belton or the
precise words of the rule. To date, the U.S. Supreme Court has
not addressed whether arrestees with these varying types of
connections to the vehicle searched are "recent
occupants" of the vehicles under Belton.
[4] However, other federal and state
jurisdictions have considered a variety of factual circumstances.

As indicated by the majority, the analysis and
results reached in those jurisdictions are far from uniform. Some
jurisdictions have applied the Belton rule to validate a
search of a vehicle only when the officer arrests or initiates
contact with the arrestee while he or she is still in the
automobile. Other jurisdictions have extended the Belton
rule through a broader interpretation of "recent
occupant," thus validating searches of vehicles where the
arrestee voluntarily left the vehicle and proceeded some distance
from the vehicle before arrest. We have not previously considered
this issue.

The majority resolves this case by simply
reviewing the two lines of cases from other jurisdictions,
rejecting the more restrictive approach, and, without further
consideration of the specific facts of this case in light of the
rationales used by those jurisdictions adopting a more expansive
application of the Belton rule, concluding that the
defendant here was a "recent occupant of the vehicle"
under Belton, thus validating the search of his vehicle as
a search incident to arrest. In my opinion, determining whether,
under the facts of this case, Glasco is a "recent"
occupant of the vehicle and thus subject to the Belton
rule, requires an examination of Fourth Amendment principles in
general and those involved in Belton in particular.

The Fourth Amendment to the United States
Constitution protects persons from unreasonable searches by the
government. The Supreme Court has interpreted this to mean that
before the police may search any area in which a suspect has a
reasonable expectation of privacy, see Katz v. United
States
, 389 U.S. 347, 357 (1967), the police must have
probable cause to believe that the area to be searched contains
evidence of criminal activity by the suspect and must obtain a
search warrant from a neutral magistrate. See United
States v. Harris
, 403 U.S. 573 (1971). The Supreme Court has
recognized that citizens have a reasonable expectation of privacy
while in their vehicles. Delaware v. Prouse, 440 U.S. 648,
667 (1979).

Certain exceptions to the warrant requirement
have been recognized, such as the right of the police to search
the person of the arrestee incident to arrest, see Weeks
v. United States
, 232 U.S. 383, 392 (1914), and the area
within his control. See Carroll v. United States,
267 U.S. 132, 158 (1925). The justifications for this exception
to the warrant requirement are the need to insure the safety of
the arresting officer by allowing him to disarm the suspect to
take him into custody and the need to preserve evidence. See,
e.g., United States v. Richardson, 414 U.S. 218,
234 (1973).

In Chimel v. California, 395 U.S. 752
(1969), the Supreme Court reversed the trend of a series of cases
that had broadened the scope of a warrantless search incident to
arrest. 395 U.S. at 768 (overruling United States v.
Rabinowitz
, 339 U.S. 56 (1950) and Harris v. United States,
331 U.S. 145 (1947)). In Chimel, the Court limited the
permissible scope of searches incident to arrest to the area
"’within [the arrestee's] immediate control’ —
construing that phrase to mean the area from within which [the
arrestee] might gain possession of a weapon or destructible
evidence." Id. at 763. Only when the search is thus
limited is it reasonable under the Fourth Amendment, according to
the Court, in light of the rationale for the exception to the
warrant requirement recognized in prior cases — safety of
the police and preservation of evidence. Id. at 763-64.

Following Chimel, determining whether a
particular area in which incriminating evidence was found was
within an arrestee’s "immediate control" required an
examination of the facts and circumstances surrounding each
arrest. Such a case-by-case analysis, particularly in the area of
vehicle searches, presented a significant burden to courts and
police.

The Belton "bright line" rule
was created by the Supreme Court to relieve this burden. Belton,
453 U.S. at 459-60. The Court created the rule following a survey
of federal circuit court cases decided after Chimel in
which the police arrested a vehicle occupant and searched the
vehicle. The survey revealed to the Court that whenever a vehicle
occupant was arrested, "articles inside the relatively
narrow compass of the passenger compartment of an automobile are
in fact generally, even if not inevitably, within ‘the area into
which an arrestee might reach in order to grab a weapon or
evidentiary [item].’" Id. at 460, citing Chimel,
395 U.S. at 763. Based on this recurring fact pattern, the
Supreme Court adopted a factual presumption that, if the arrestee
is an occupant of the vehicle, the arrestee can reach in the
vehicle and get a weapon or destroy evidence. Following Belton,
a showing of the actual fact of occupancy would automatically
provide the presumed fact of access to the passenger compartment
which is required by Chimel as a prerequisite for a
warrantless search of a vehicle incident to arrest. The Supreme
Court made it clear that its holding was "in no way
alter[ing] the fundamental principles established in the Chimel
case regarding the basic scope of searches incident to lawful
custodial arrests." 453 U.S. at 460 n. 3.

Turning to the task at hand, although the cases
from other jurisdictions addressing this issue are informative,
our task is to independently consider and apply the principles of
Chimel and Belton to determine whether, under the
facts of this case, Glasco was a "recent occupant" of a
vehicle for purposes of the Belton rule. A review of the
cases surveyed and cited by the Supreme Court in Belton as
supporting the factual presumption of access to the vehicle
created in that case reveals that in all but one case, the
arrestee was arrested while in the vehicle, and in all the cases
the search of the vehicle occurred after the arrestees exited the
vehicles at the direction of the police and while they were still
within close proximity of the vehicles. United States v.
Rigales
, 630 F.2d 364, 366 (5th Cir. 1980); United
States v. Benson
, 631 F.2d 1336, 1337 (8th Cir.
1980), vacated, 453 U.S. 918 (1981); United States v.
Sanders
, 631 F.2d 1309, 1312-13 (8th Cir. 1980); United
States v. Dixon
, 558 F.2d 919, 922 (9th Cir.
1977); United Stated v. Frick, 490 F.2d 666, 668 (5th
Cir. 1973). These fact patterns along with the facts in Belton
suggest that in using the phrase "recent occupant" in Belton,
the Supreme Court was referring to persons arrested under these
or similar circumstances.

For purposes of this case, however, we need not
engage in speculation as to whether the fact patterns surveyed in
Belton would be the only circumstances under which the
search of a vehicle incident to arrest under the Belton
rule could pass Fourth Amendment scrutiny. To resolve this case,
we need only look to one of the "fundamental
principles" of Chimel cited in and unaltered by Belton:
The scope of a warrantless search must be "’strictly tied to
and justified by’ the circumstances which rendered its initiation
permissible." Belton, 453 U.S. at 457 (citations
omitted). If there is no connection shown between a person’s
occupancy of a vehicle and his arrest, then extending the scope
of the search incident to arrest to the vehicle is neither
"tied to" nor "justified by" circumstances of
the arrest. Thus, to qualify as a valid warrantless search
incident to arrest, at a minimum, some connection must exist
between occupancy of the vehicle and the circumstances of the
arrest.
[5] Whether such a connection exists will depend on the
facts of each case.

At the time of the arrest in this case, Glasco
had lawfully parked his vehicle, crossed the street, and was
thirty feet away from the vehicle, heading toward the home of a
friend. The police had not initiated any contact with Glasco
prior to that time. The record contains no indication that Glasco
was aware of the police when he parked and exited his vehicle.

This case is not a case in which the police
have officially engaged and are following a suspect and in which
the suspect stops his vehicle, gets out of it, runs away from the
police, and is arrested at some point away from the vehicle. See,
e.g., White v. Commonwealth, 24 Va. App. 446, 482
S.E.2d 876 (1997). Those circumstances may suggest some
connection between the circumstances surrounding the arrest and
the arrestee’s occupancy of the vehicle. In this case, there is
no evidence that Glasco was aware of the police presence or took
any action as a result of the police presence while he was in his
vehicle or when he stopped, parked, and exited the vehicle. He
was neither approached nor arrested by the police until he had
completely left the area of the vehicle, crossed the street and
was proceeding toward the house of a friend. When approached by
the police, Glasco did reverse his course and take steps toward
the police, but there is nothing in the record that indicates
Glasco was heading back to the vehicle. On these facts, there is
simply no connection between Glasco’s occupancy of his vehicle
and his arrest. Therefore, in the absence of such a connection,
there is no basis to deem Glasco a "recent occupant"
for purposes of the Belton rule.

The majority expresses a concern for adopting a
rationale that might give a suspect the opportunity "to
conceal evidence in the vehicle and effectively prevent an
officer from discovering it by getting out of his or her
automobile." While the concealment of evidence is a valid
concern of law enforcement, the Fourth Amendment nevertheless
reflects the belief held in our system of government that the
right to be free from unreasonable governmental searches
supersedes the interest of the police in unfettered access to
one’s home, person, or automobile, even to recover evidence
concealed therein. As the Supreme Court stated in Chimel:

We are not dealing with formalities.
The presence of a search warrant serves a high function.
Absent some grave emergency, the Fourth Amendment has
interposed a magistrate between the citizen and the
police. This was done not to shield criminals nor to make
the home a safe haven for illegal activities. It was done
so that an objective mind might weigh the need to invade
that privacy in order to enforce the law
. . . . We cannot be true to that
constitutional requirement and excuse the absence of a
search warrant without a showing by those who seek
exemption from the constitutional mandate that the
exigencies of the situation made that course imperative.

395 U.S. at 761, citing McDonald v.
United States
, 335 U.S. 451, 455-56(1948).

Therefore, the mere ability of a citizen to put
evidence out of the reach of law enforcement by placing it within
an area protected by the right to privacy is not sufficient to
justify a warrantless search.
[6]

Furthermore, as I have previously indicted, we
do not need to draw a "bright line rule" to apply in
circumstances where an arrestee is a "recent occupant"
of a vehicle for purposes of the Belton presumption. Our
responsibility is to look at the facts of this case and to
determine whether the arrestee’s occupancy of the vehicle was
sufficiently connected with the circumstances of his arrest to
justify application of the Belton rule. For the reasons
stated above, it is my opinion that the rule set out in the Belton
case is not applicable to the facts of this case.

II. Probable Cause

The trial court held that the search of
Glasco’s vehicle did not violate Glasco’s Fourth Amendment rights
because the police officer had probable cause to conduct the
search. Glasco appealed this holding to the Court of Appeals and
argued before that court that probable cause to search the
vehicle did not exist. He made the same arguments in this Court.
[7]

Whether probable cause exists is a question of
law and fact and is reviewed de novo on appeal. Ornelas
v. United States
, 517 U.S. 690, 699 (1996). The evidence at
trial established that, upon searching Glasco incident to his
arrest for driving under a suspended license, the officer found
two small bags of marijuana, a pager, and $650 in cash. Six
hundred dollars of the $650 was in six separate folds. The
currency in each fold amounted to $100. The police officer
testified that "I had no probable cause to believe
[contraband or narcotics were in the vehicle], but I did have a
hunch there might be some narcotics located in the vehicle."
The officer had received information in the past that Glasco was
involved in narcotics and his "hunch" was based on
finding the marijuana when he searched Glasco.

The officer’s statement that he did not have
probable cause is not dispositive. Subjective motivations of the
officer do not affect the probable cause Fourth Amendment
analysis. Whren v. United States, 517 U.S. 806, 813
(1996). The probable cause determination is whether the facts,
viewed from the standpoint of an objectively reasonable police
officer, amount to probable cause. Id. Applying that
standard, the items found as a result of the search of Glasco,
including the manner in which the currency was packaged, along
with the officer’s knowledge of Glasco’s involvement with
narcotics, were sufficient to provide the officer with probable
cause to believe Glasco was selling or trafficking narcotics and
that additional narcotics would be found in the vehicle.

For these reasons I concur in the result
reached by the majority.

 

 

FOOTNOTES:

[1] The trial court sentenced Glasco to 12 years
imprisonment, 9 years suspended, on the conviction for possession
of cocaine with intent to distribute; and five years
imprisonment, 4 and one-half years suspended, on the conviction
for possession of a firearm.

[2] The Court of Appeals also upheld the initial stop of
Glasco and found sufficient evidence to support Glasco’s
convictions.

[3] Additionally, we infer from the
Supreme Court’s decision in Michigan v. Long, 463
U.S. 1032 (1983), that initial contact by a police officer before
an arrestee exits a vehicle is not required. In that case, the
defendant met the police officers at the rear of his vehicle
after he had swerved off into a ditch. Id. at 1035.
Although the court upheld the legality of the officer’s
subsequent search of the defendant’s vehicle based on the
principles enunciated in Terry v. Ohio, 392 U.S. 1 (1968),
the Court also stated that "[i]t is clear . . . that if the
officers had arrested Long for speeding or for driving while
intoxicated, they could have searched the passenger compartment
under [Belton]." 463 U.S. at 1035 n.1.

[4] In Michigan v. Long, 463 U.S.
1032 (1983), the defendant had crashed the car in a ditch and was
standing near the opened driver’s side door when the police made
the arrest. As the majority recognizes, the statements in that
opinion regarding the application of Belton to the facts
of that case were dicta.

[5] By "circumstances of the
arrest," I do not mean the grounds for arrest. The
"’danger to the police officer flows from the fact of the
arrest, and its attendant proximity, stress, and uncertainty, and
not from the grounds for arrest.’" Knowles v. Iowa,
__ U.S. __, No. 97-7597, Dec. 8, 1998, 67 U.S.L.W. 4027, 4028, citing
United States v. Robinson, 414 U.S. 218, 234 n.5 (1973).

[6] Of course, under the analysis I
suggest here, action by a vehicle’s occupant shown to be taken in
response to police presence may subject the actor to search of
the vehicle under Belton.

[7] Neither the majority opinion nor the opinion of the
Court of Appeals addresses this issue. The Commonwealth did not
address the issue in its brief in this Court, but at oral
argument, counsel for the Commonwealth "conceded" that
probable cause to search Glasco’s vehicle did not exist. However,
concessions in respect to conclusions of law are not binding upon
the parties or the court. Tuggle v. Commonwealth, 230 Va.
99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985).

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