A  United States . Supreme Court decision pertaining to an arrest and search of a vehicle occupant,  who had been cuffed and placed in a squad car, has resulted in the distinguishing, if not partial overruling, of a landmark “search & seizure case that has been universally abused by officers in the field.

    At the hearing pursuant to Defendant’s motion to suppress the warrantless search, the defense argued a Fourth Amendment violation because he posed no threat to the officers once he was cuffed and secured in the backseat of the patrol car. Also, that the long-standing bright-line rule interpretation of  New York v. Belton, 453 U.S. 453, 101 S. Ct. 2860 (1981), permitting  a warrantless search of a motor vehicle passenger compartment and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant, was not applicable because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When the arresting officer was questioned as to why the search of the vehicle passenger compartment was conducted, he replied “Because the law says we can do it.”

    The threshold issue was whether the police may conduct a search incident to an arrest at all once the scene is secure. The trial court had denied defendant’s motion to suppress, and the Arizona Supreme Court had reversed, holding that Belton was distinguishable.

    In a 5-4 decision that drew a concurring opinion by Justice Scalia, the majority found that both Belton and Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 ( 1969), although not warranting overruling, required narrowing of their application and further reconsideration. While Belton’s underlying principle is the officer’s safety, the Chimel rule reinforced prior decisions holding that the search may be conducted to preserve evidence pertaining to the arrest and  prevent its destruction, both “typically implicated in arrest situations.”  See United States v. Robinson, 414 U.S. 218, 230-234, 94 S. Ct. 467 (1973).

    Another case found to be applicable and requiring consideration in this arrest scenario was Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127 (2004), the progeny of Belton, which concludes that “circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” The majority   further clarified its holding in Belton to be limited and “not authorizing a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”

    The majority made it clear that “[u]nder Chimel, police may search incident to arrest only the space within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’ 395 U.S. at 763, 89 S. Ct. 2034. Further, following Justice Scalia’s concurring opinion in Thornton, “circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the arrest might be found in the vehicle.

   In his concurring opinion, Justice Scalia clarified the issue in this case as pertaining exclusively to those situations where the driver or occupant of a vehicle are arrested, noting that  “[w]here no arrest  is made, we have held that officers may search the car if they reasonably believe ‘the suspect is dangerous and  . . . may gain immediate control of weapons.’. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469 (1983). In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. The rule of Michigan v. Long is not at issue here.” [ See discussion of long and a non-arrest scenario in this author’s reported decision of People v. Johnson, 387 Ill.3d 780, 901 N.E. 2d 455 (3d Dist., 2009).]

    In a search and seizure case, the 3^rd District Appellate Court has followed the lead taken by a number of courts expanding  a Terry stop scenario  to include a situation where the defendant is handcuffed and secured in a police vehicle while the vehicle in which he was a passenger is searched without a warrant.

   The starting point for these type of searches is the  landmark case of Terry v. Ohio, 392 U.S. 1 (1968),  which allows an officer making a proper investigatory stop to conduct a limited protective search or frisk of the individual’s outer clothing “if the officer reasonably believes that the individual is armed and presently dangerous to the officers or others.” Terry, 392 U.S. at 27, 88 S. Ct., at 1883.  See also, People v. Sorenson,  196 Ill. 2d  425, 431 ((2001).

   “ Pursuant to Terry and Illinois law, an officer may, without violating the fourth amendment, conduct a brief investigatory stop or detention of an individual  when the officer has reasonable suspicion, based on specific articulable  facts and the reasonable inferences to be drawn therefrom, to believe that the individual has committed or is about to commit a crime.” Terry, 392 U.S. at 20-23, 88 S. Ct. at 1879-81.

Facts:  The defendant, a convicted felon, was a passenger in a vehicle near a shooting incident to which the officer was called to investigate. He and the driver were ordered out of the car, and  upon arrival of a back-up squad both were handcuffed and  secured in a police vehicle. The car in which he had been a passenger was searched, although the driver/owner did not give his consent, and a handgun found under the passenger seat. The firearm was later shown to be that used in the shooting.  Defendant sought to quash the arrest and suppress evidence (the firearm and statements he had made to police officers), claiming illegal seizure in violation of  the United States and Illinois Constitutions.

   Although the issue of “standing” regarding the defendant/passenger’s right to contest,  by motion to quash, the search of a vehicle he does not own was before the court, it decided it need only address whether the search of the vehicle “was a proper limited search under Terry, since that determination was dispositive of the issue.”

    In  reaching its conclusion, the 3^rd District Appellate Court  cited the usual prin- cipal decisions following and extending Terry, most significantly  Michigan v. Long, 463 U.S. 1032, where the U.S. Supreme Court “extended the Terry protective search rule to allow a protective search of a passenger compartment of a vehicle when the officer reasonably believed that the occupant was dangerous and could gain immediate control of a weapon.”  Long at  1049.

   Although the defense conceded that a Terry stop under the facts of this case was warranted,  it was alleged that the search leading to discovery of the gun was the result of an illegal seizure.  If the search of the passenger compartment exceeds  the scope of a “limited protective search”  it is no longer justifiable and anything recovered beyond that point  will be suppressed as “fruit” of the illegal search. See People v. Sorenson, 1196 Ill. 2d 425, 432.  Affirming the trial court's denial of defendent's motion to suppress, the court made this finding:

     “ . . .[T]he narrow question before this Court is whether a police officer, who has              reasonable suspicion to believe that  an individual was involved in a shooting that              has just occurred, may conduct a limited protective search of the passenger com-            partment  of the vehicle for weapons . . .”  

        . . . No evidence has been presented to suggest that the search of the vehicle that          was conducted in this case  exceeded the scope of a limited search.       
          . . . Although brief in nature, a Terry stop may last for a reasonable duration                 while the officer involved attempts to  dispel or confirm his suspicions.”  See                 People v. Starks, 190 Ill. App. 3d 503, 509 (1989)  

    Further citing Starks, the Court notes “The real difference between an investigatory stop and an arrest lies in the length of time  the suspect is detained and the scope of the investigation which follows the initial stop. [citation.] The general rule is that the officer’s suspicions must be allayed in a reasonable time.; if they are not, the officer must allow the person to leave or make a full arrest. Starks at 509.

NOTE: The citation of Starks is noteworthy in that, although the search in that case was deemed “investigatory” and pursuant to the codified “Terry” rules in the Illinois Code of Criminal procedure then promulgated, the officer conducting the search of the vehicle occupants and the passenger compartment drew her revolver, ordered the occupants out of the vehicle, and cuffed them before conducting the search. That was about as close to an “arrest” scenario rather than “investigatory” that one would expect to find for purpose of challenging on “probable cause” pursuant to an arrest."  A split in districts as to what extent the detainment may reach, coupled with the time factors impacting “reasonableness,” should lead to more review by our State and U.S. Supreme Courts.

 [The Court addressed a “one act, one crime” issue as it related to charges of aggravated unlawful use of a weapon (AUUW) and unlawful possession  of a weapon by a felon  (UPWA) for purposes of vacating the lesser offense conviction, not discussed here.]