State v. Pierce: State Constitutional Protection Against the Belton Search Incident to Arrest Rule

  Introduction

In New York v. Belton,⁽¹⁾ a divided United States Supreme Court⁽²⁾ held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile."⁽³⁾ This statement from the Court, known as the Belton rule, has been criticized for abandoning the rationale of the search incident to a lawful arrest exception,⁽⁴⁾ and thereby lowering "the level of fourth amendment [sic] protection afforded to motorists in almost every state."⁽⁵⁾

Notwithstanding the divisiveness of this issue on the Court itself and the criticism of commentators, Belton has survived as Fourth Amendment jurisprudence.⁽⁶⁾ A majority of the states follow Belton,⁽⁷⁾ while several states have rejected or modified its holding.⁽⁸⁾

Recently, in State v. Pierce,⁽⁹⁾ the Supreme Court of New Jersey refused to adopt Belton, holding that the Belton rule would not be applied to authorize warrantless vehicular searches pursuant to "arrests for motor-vehicle offenses."⁽¹⁰⁾ This rejection of Belton was the result of the Supreme Court of New Jersey's interpretation of its state constitution to provide greater protection against unreasonable searches and seizures than that provided by the Federal Constitution.⁽¹¹⁾ This decision by New Jersey places it among the several jurisdictions which have explicitly rejected the Belton rule under their state constitutions.⁽¹²⁾

This Comment examines State v. Pierce and the Supreme Court of New Jersey's rejection of the Belton rule. Part II reviews the search incident to a lawful arrest exception as enunciated in Chimel v. California⁽¹³⁾ and as extended in Belton.⁽¹⁴⁾ Part II also explores the reception of Belton in the states and the approaches used in rejecting or modifying its holding.⁽¹⁵⁾ Part III presents the facts, procedure, and opinions of State v. Pierce.⁽¹⁶⁾ Part IV analyzes the reasoning behind the Supreme Court of New Jersey's refusal to accept Belton under the New Jersey Constitution, and contrasts the majority and concurring opinions in Pierce; Part IV also argues that the Supreme Court of New Jersey's rejection of Belton is correct and will assess the likely impact of Pierce.⁽¹⁷⁾ Part V concludes with the proposition that the Supreme Court of New Jersey's rejection of Belton represents an important development in state refusal to follow the Burger Court's "retrenchment in the fourth amendment [sic] area."⁽¹⁸⁾

  Background

A.  The Search Incident to a Lawful Arrest Exception

The Fourth Amendment provides that before police conduct a search, they must obtain a warrant based upon probable cause.⁽¹⁹⁾ The United States Supreme Court has, however, carved out a number of exceptions to this warrant requirement.⁽²⁰⁾

"The oldest exception to the warrant requirement is the `search incident to a lawful arrest . . . .'"⁽²¹⁾ This exception, first articulated by the Court in Weeks v. United States,⁽²²⁾ as dictum, recognized the right of police "to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime."⁽²³⁾ This statement in Weeks refers only to a search of the person of the arrestee; making no reference to a search of the area in which the arrest is made.⁽²⁴⁾ In subsequent decisions, the Court expanded the scope of the search to include whatever was in the arrestee's control⁽²⁵⁾ as well as the place in which the arrest was made.⁽²⁶⁾ In later cases, the Supreme Court continued to both expand and contract the scope of the search.⁽²⁷⁾ Finally, in Chimel v. California,⁽²⁸⁾ the Court settled on the proper scope of the search incident to a lawful arrest.⁽²⁹⁾

In Chimel, police officers went to the home of a burglary suspect to execute a warrant for his arrest.⁽³⁰⁾ The officers arrested the defendant and then proceeded to search his entire house, attic, garage and workshop.⁽³¹⁾ At one point, the officers directed the defendant's wife to open drawers and move the contents around, so that they could view potential evidence.⁽³²⁾ The police seized various items in their search, which lasted close to an hour.⁽³³⁾ The items seized were admitted against the defendant at trial and he was convicted of burglary.⁽³⁴⁾ The Supreme Court, holding the search unconstitutional, reversed the defendant's conviction.⁽³⁵⁾

In reaching its decision, the Court stated that "`[t]he scope of [a] search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible.'"⁽³⁶⁾ In the search incident to a lawful arrest context, the relevant circumstances are to protect police officers and prevent the destruction of evidence.⁽³⁷⁾ As the Chimel Court stated:

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.⁽³⁸⁾

Applying these principles to the Chimel facts, the Supreme Court held the search to be unreasonable under the Fourth Amendment, as the search went beyond the area in which the defendant could have obtained a weapon or evidence.⁽³⁹⁾

Chimel was an attempt by the Supreme Court to finally define the scope of a search incident to a lawful arrest and to clearly put forth the rationale behind the exception.⁽⁴⁰⁾ The Chimel decision provided a mechanism by which courts could measure the reasonableness of a search.⁽⁴¹⁾ As was argued in Belton, however, Chimel did not establish a workable definition of what exactly should be considered the area within the immediate control of an arrestee.⁽⁴²⁾ In Chimel, the Supreme Court found that, in the context of a house arrest, the scope of the search should be limited to the area surrounding the defendant--usually the room in which he is arrested.⁽⁴³⁾ Thus, Chimel provides guidance to courts in defining the area within an arrestee's control in the context of a house arrest.⁽⁴⁴⁾ Other arrest situations present difficulties in defining this area; one particularly problematic area is the search incident to the lawful arrest of a motorist which was encountered in New York v. Belton.⁽⁴⁵⁾

In Belton, a New York state trooper, Douglas Nicot, was traveling in an unmarked police cruiser on the New York Thruway when he observed a speeding automobile.⁽⁴⁶⁾ Nicot pulled the vehicle over and discovered that none of the four occupants owned the vehicle.⁽⁴⁷⁾ During the encounter, Nicot noticed the smell of marijuana, and observed an envelope marked "`Supergold'" on the floor of the vehicle.<sup>(48)</sup> Nicot ordered the four men out of the car, and "placed them under arrest for the unlawful possession of marijuana."<sup>(49)</sup> Trooper Nicot performed pat-down searches of each man and "`split them up into four separate areas of the thruway.'"⁽⁵⁰⁾ Nicot then opened the envelope marked "`Supergold'" and discovered the marijuana.⁽⁵¹⁾ The trooper next proceeded to search each of the four men and then searched the car's interior.⁽⁵²⁾ During his search of the car, the trooper found a leather jacket which belonged to Belton.⁽⁵³⁾ Upon searching the jacket, Nicot discovered cocaine.⁽⁵⁴⁾

Belton was indicted for "criminal possession of a controlled substance," and prior to trial he moved to suppress the cocaine.⁽⁵⁵⁾ His motion was denied by the trial court and the New York Supreme Court Appellate Division affirmed this denial, holding the search valid.⁽⁵⁶⁾

The New York Court of Appeals reversed, holding that the search of Belton's jacket could not "be upheld as a search incident to a lawful arrest when there is no longer any danger that the arrestee . . . might gain access to the article."⁽⁵⁷⁾

The United States Supreme Court reversed the New York Court of Appeals decision,⁽⁵⁸⁾ and held that once a police officer has made a lawful arrest of a motor vehicle occupant, he is authorized, incident to that arrest, to "search the passenger compartment" and "any containers found within the . . . compartment."⁽⁵⁹⁾ The Court defined the word "`containers'" as "any object capable of holding another object."⁽⁶⁰⁾ Such an object, according to the Court, includes "closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like."⁽⁶¹⁾ While the Court held the interior and containers to be within the scope of the search, the Court did exclude the motor vehicle's trunk.⁽⁶²⁾

The Supreme Court reasoned that the difficulties experienced by lower courts in determining the proper scope of the search incident to a lawful arrest, in the automobile context, necessitated its formulation of a bright-line rule.⁽⁶³⁾ The Court determined that this rule was necessary as Fourth Amendment protections "`can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'"⁽⁶⁴⁾ The rule was also needed, the Court reasoned, because the primary intent of Fourth Amendment doctrine is to regulate police in their daily activities, and thus, should be expressed in clear terms.⁽⁶⁵⁾

The problem with Chimel, the Court wrote, was that lower courts had not found a "workable definition of `the area within the immediate control of the arrestee.'"<sup>(66)</sup> Therefore, the Court adopted a definition stating that, "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 ite[m] [sic].'"⁽⁶⁷⁾

B.  State Responses to Belton

Most states follow the Belton search incident to lawful arrest rule.⁽⁶⁸⁾

This is not surprising as "no federal doctrine has yet inspired the dissent of a majority of states."⁽⁶⁹⁾ Presently, several states have refused to adopt the Belton rule.⁽⁷⁰⁾ One commentator suggests that the number of jurisdictions rejecting Belton is not important; but what is important, is that states consider Belton carefully before deciding whether to adopt its rule.⁽⁷¹⁾ This is because "Belton marks a . . . dramatic lowering of federal standards," and has been called "the kind of decision that should give pause to even the most deferential of state court judges."⁽⁷²⁾

New York, in People v. Belton,⁽⁷³⁾ was the first state to reject the Belton bright-line rule when that case was remanded to the Court of Appeals of New York.⁽⁷⁴⁾ In Belton, the court upheld the search of Belton's jacket under the automobile exception,⁽⁷⁵⁾ instead of the Supreme Court's rule.⁽⁷⁶⁾ The Court of Appeals of New York reasoned that Officer Nicot's discovery of the Supergold envelope, resulting in the arrest of the car's occupants, also provided Nicot with probable cause to believe that other contraband was present.⁽⁷⁷⁾ Thus, Nicot was justified in conducting a warrantless search of the car.⁽⁷⁸⁾ The court also criticized the Supreme Court's departure from the Chimel rationale.⁽⁷⁹⁾

The Court of Appeals of New York revisited the Belton doctrine in People v. Blasich.⁽⁸⁰⁾ The issue in Blasich was whether police were justified in searching a gym bag obtained from a suspect.⁽⁸¹⁾ In Blasich, a police officer, Officer King, on duty at an airport parking lot received a report of an automobile leaving the lot without paying.⁽⁸²⁾ The description of the car matched that of a suspicious vehicle which the officer had noticed in the parking lot earlier that day.⁽⁸³⁾ Officer King found the car at a nearby gas station and, when he approached the vehicle, noticed burglarious tools on the passenger side floor of the front seat, a blue gym bag on the front seat, and parking lot cards on the rear seat floor.⁽⁸⁴⁾ The officer then "seized the tools and the cards" and "took the three suspects to the Port Authority Police Station."⁽⁸⁵⁾ At the police station, the vehicle was impounded and searched.⁽⁸⁶⁾ The gym bag was also searched and "was found to contain a .38 caliber revolver, an incendiary device and cocaine."⁽⁸⁷⁾ Blasich, the driver of the vehicle, was later "indicted for two counts of criminal possession of a weapon, possession of a controlled substance and possession of burglar's tools."⁽⁸⁸⁾ The defendant's motion to suppress this evidence was denied by the trial court.⁽⁸⁹⁾

The Court of Appeals of New York reaffirmed both its adherence to the scope and rationale set out in Chimel and its refusal to apply Belton.⁽⁹⁰⁾ The court stated that the probable cause for the arrest of Blasich also gave the officer probable cause to believe the car could contain other evidence of the crime, and upheld the search.⁽⁹¹⁾

Louisiana followed New York in rejecting Belton in State v. Hernandez.⁽⁹²⁾ In Hernandez, two police officers, observing the defendant speeding and driving recklessly, followed the defendant to his house and arrested him in his driveway for reckless operation and driving while intoxicated.⁽⁹³⁾ Another police officer, Officer Pasqua, arrived on the scene after the arresting officers had placed the defendant in the back of their patrol car.⁽⁹⁴⁾ As he was being taken from the scene, the defendant stated to Pasqua that "he did not want anyone to drive his car."⁽⁹⁵⁾ Pursuant to police policy, however, a tow truck was called to remove the vehicle.⁽⁹⁶⁾ Prior to the arrival of the tow truck, Officer Pasqua conducted a search of the vehicle and found marijuana and drug paraphernalia.⁽⁹⁷⁾ The trial court denied Hernandez's pretrial motion to suppress this evidence, and he was convicted of reckless operation of a vehicle, driving while intoxicated, and possession of marijuana.⁽⁹⁸⁾

The Hernandez Court distinguished the facts before it from the facts of Belton, stating that "the Belton rule can have no application after an arrestee has been handcuffed and removed from the scene, foreclosing even the slightest possibility that he could reach for an article within the vehicle."⁽⁹⁹⁾ Nevertheless, the Hernandez Court stated that it did not consider Belton to be a correct rule of criminal procedure under its state constitution.⁽¹⁰⁰⁾ The state supreme court noted that, while it gave careful consideration to the United States Supreme Court's interpretation of the Federal Constitution, the court would not allow United States Supreme Court decisions to "replace our independent judgment in construing the constitution adopted by the people of Louisiana."⁽¹⁰¹⁾ The Louisiana Constitution, the court wrote, because it contains additional provisions providing greater protection, "is not a duplicate of the Fourth Amendment."⁽¹⁰²⁾ The court maintained that because the citizens of Louisiana had opted for a higher standard of protection, the court was obliged to abide by the rule established in Chimel.⁽¹⁰³⁾ The court then applied the Chimel rule, held the search unconstitutional, and reversed the defendant's conviction on the marijuana charge.⁽¹⁰⁴⁾

In Commonwealth v. Toole,⁽¹⁰⁵⁾ the Supreme Judicial Court of Massachusetts (SJC) took a different approach to the Belton rule by holding that the Commonwealth was barred by statute from admitting into evidence a weapon seized during the warrantless search of a truck.⁽¹⁰⁶⁾ In Toole, a motorist was stopped by a state trooper and arrested "on an outstanding warrant for his arrest on a charge of assault and battery."⁽¹⁰⁷⁾ Once the defendant was ordered from the cab of the truck, a "`pat-down frisk'" was conducted during which "an empty holster and an ammunition clip containing .45 caliber bullets" were discovered.⁽¹⁰⁸⁾ Two troopers handcuffed the defendant outside the vehicle while a third trooper searched the truck's cab and discovered a .45 caliber handgun.⁽¹⁰⁹⁾ The troopers asked the defendant if he possessed a firearm identification card, and the defendant stated that he did not.⁽¹¹⁰⁾ In addition to another charge, "[t]he defendant was charged with unlawfully carrying a firearm under his control in a vehicle."⁽¹¹¹⁾ The district court granted the defendant's motion to suppress, the Commonwealth appealed the ruling to the Massachusetts Appeals Court, and the SJC, on its own motion, transferred the appeal.⁽¹¹²⁾

The SJC maintained that "[t]he search of the cab following the defendant's arrest was reasonable for Fourth Amendment purposes because it was incident to a lawful arrest and involved an area that had been in the defendant's control just prior to his arrest."⁽¹¹³⁾ From this reasoning, it appears that the SJC approved of Belton.⁽¹¹⁴⁾ However, the court stated that Massachusetts General Laws chapter 276, section 1, as amended,⁽¹¹⁵⁾ provides that items seized in a search incident to a lawful arrest will only be admitted into evidence if they relate to the offense for which the defendant is arrested.⁽¹¹⁶⁾ The amendment to Massachusetts General Laws chapter 276, section 1, the court opined, was adopted by the Massachusetts Legislature as a response to the Supreme Court's ruling in United States v. Robinson.⁽¹¹⁷⁾ The Robinson Court upheld the seizure of contraband found on a defendant during the search incident to the defendant's lawful arrest for a motor vehicle violation.⁽¹¹⁸⁾ Therefore, because the seizure of the firearm was in no way related to the crime of assault and battery for which Toole was arrested, the SJC affirmed the trial court's ruling.⁽¹¹⁹⁾

In State v. Kirsch,⁽¹²⁰⁾ the Oregon Court of Appeals considered Belton.⁽¹²¹⁾ In Kirsch, an Oregon State Police Officer, Sergeant Sitton, stopped a motorist whom he had observed driving erratically.⁽¹²²⁾ Upon approaching the vehicle, Sitton "saw defendant and his two passengers bend over as if they were handling something on the floor."⁽¹²³⁾ Sitton then "noticed an odor of alcohol on defendant's breath" and ordered him from the vehicle.⁽¹²⁴⁾ As the defendant exited the vehicle, Sitton noticed and seized "an open beer can on the floor."⁽¹²⁵⁾ Sitton also observed another beer can on the floor which he instructed one of the passengers to retrieve.⁽¹²⁶⁾ To assist this passenger, Sitton shined his flashlight on the floor and noticed "what appeared to be four sticks of dynamite."⁽¹²⁷⁾ The passengers were immediately ordered from the vehicle and Sitton "seized the sticks, which proved to be one highway flare by itself and three sticks of dynamite taped together."⁽¹²⁸⁾ Due to the cold weather, Sitton permitted Kirsch and his two passengers to get back into the car.⁽¹²⁹⁾ One of these passengers, upon entering the car, "made a `throwing motion' and Sitton heard something hit the ground."⁽¹³⁰⁾ Sitton retrieved the thrown object--a paper bag containing marijuana.⁽¹³¹⁾

After back-up officers arrived, Sitton administered field sobriety tests to the defendant and arrested him for driving under the influence of intoxicants.⁽¹³²⁾ In addition, Sitton had intended to arrest him for possession of drugs and explosives.⁽¹³³⁾ While the defendant sat in the patrol car and another officer guarded the passengers, Sitton and another officer then conducted a search of the vehicle.⁽¹³⁴⁾ Among the items found were "two `bundles' of white powder located under the front seat and two plastic boxes containing a white powder residue in the glove compartment."⁽¹³⁵⁾ These items were seized and the passengers were arrested.⁽¹³⁶⁾ The trial court allowed the driver's motion to suppress the methamphetamine on the basis that once the occupants had been removed from the vehicle, no exigency existed to justify a search.⁽¹³⁷⁾ The State appealed this decision.⁽¹³⁸⁾

The Oregon Court of Appeals dismissed the State's claim that the search of the vehicle and the seizure of the methamphetamine were justified under the automobile exception.⁽¹³⁹⁾ The court held instead that the search was permissible under the search incident to a lawful arrest exception, which is allowed, "when it is for the protection of the officer, the preservation of evidence, or `when it is relevant to the crime for which defendant is being arrested and so long as it is reasonable in light of all the facts.'"⁽¹⁴⁰⁾ Regarding Belton, the Court stated that "Belton is not the law of Oregon;"⁽¹⁴¹⁾ that searches incident to lawful arrests, "must be reasonable in scope, time and intensity,"⁽¹⁴²⁾ and are required to be associated with the underlying offense.⁽¹⁴³⁾ In addition, the Oregon Court of Appeals held that if police have an opportunity to obtain a search warrant, they will be required to do so before the search is allowed to continue.⁽¹⁴⁴⁾

In applying these principles to the facts of the case, the Oregon Court of Appeals held the search to be reasonable.⁽¹⁴⁵⁾ The court found that the search was reasonable because the items found in the search were related to the offenses for which Sitton planned to arrest the defendant.⁽¹⁴⁶⁾ The search was limited in scope, occurred "close in time" to the arrest, and the serious nature of the items found justified an intensive search of the interior.⁽¹⁴⁷⁾

In State v. Stroud,⁽¹⁴⁸⁾ the Supreme Court of Washington upheld the right of police to search a vehicle incident to a lawful arrest, but modified the Belton rule by excluding locked containers from its scope.⁽¹⁴⁹⁾ In Stroud, police observed a parked vehicle with its motor running and headlights on at a closed gas station.⁽¹⁵⁰⁾ The vehicle was parked beside a vending machine, which, to the officers, appeared to have been opened.⁽¹⁵¹⁾ When the defendant saw the police, he shut the door of the machine and pulled a key from its lock.⁽¹⁵²⁾ When an officer inquired about the key, Stroud handed the officer "a homemade key apparently designed to open vending machine locks."⁽¹⁵³⁾ The officers frisked Stroud and the other defendant and found on Stroud another homemade key and on the other defendant, "several dollars worth of change."⁽¹⁵⁴⁾ The police "arrested both defendants for theft, advised them of their rights, handcuffed them, and placed them in the patrol car."⁽¹⁵⁵⁾ One of the officers, Officer Mauermann, went back to the vehicle and noticed a revolver lying on the back seat.⁽¹⁵⁶⁾ Mauermann seized the gun and proceeded to search "the entire passenger compartment, including the glove compartment."⁽¹⁵⁷⁾ In his search of the vehicle, Mauermann discovered "an unzipped luggage bag," containing a "sawed off shotgun, ammunition for the gun, and a plastic container containing white powdery substance."⁽¹⁵⁸⁾ In the unlocked glove compartment, the officer found "several spoons, syringes, and a container full of clear liquid."⁽¹⁵⁹⁾ The residue found on the spoons was later determined to be heroin and methamphetamine.⁽¹⁶⁰⁾

The defendant's motion to suppress this evidence was denied by the trial court which held the search to be valid under the automobile exception.⁽¹⁶¹⁾ The defendants were convicted of drug and weapons possession charges, and the convictions were upheld by the Supreme Court of Washington.⁽¹⁶²⁾

The Supreme Court of Washington upheld the search as a valid search incident to a lawful arrest.⁽¹⁶³⁾ The court, while recognizing that under Belton this search would be valid, declined to uphold the search under the United States Supreme Court's rule.⁽¹⁶⁴⁾ The court wrote that it was unable to do this because the Washington State Constitution provides greater search and seizure protection than the Federal Constitution.⁽¹⁶⁵⁾ The protections provided by the state constitution required the court to balance "the privacy interests individuals have in items within their automobile" against the dangers to police during an arrest of a motor vehicle occupant.⁽¹⁶⁶⁾ To the Supreme Court of Washington, this balance is best struck by allowing officers to conduct interior searches incident to lawful arrests, but excluding from this license any locked containers, which would only be allowed to be searched pursuant to a warrant.⁽¹⁶⁷⁾ The court reasoned that by locking a container, an individual has indicated that he or she has an expectation of privacy as to the container's contents, and that this expectation should be protected.⁽¹⁶⁸⁾ Additionally, the court stated, police cannot be justified in searching a locked container out of a concern for the preservation of evidence, as these dangers are minimized due to the fact that "the individual would have to spend time unlocking the container, during which time the officers have an opportunity to prevent the individual's access to the contents of the container."⁽¹⁶⁹⁾

The court maintained: "We agree with the Supreme Court's decision to draw a clearer line to aid police enforcement, although because of our state's additional protection of privacy rights we must draw the line differently than did the United States Supreme Court."⁽¹⁷⁰⁾ With regard to the facts of the case, the court upheld the search because neither the luggage bag nor the glove compartment had been locked.⁽¹⁷¹⁾

In State v. Brown,⁽¹⁷²⁾ the Supreme Court of Ohio explicitly rejected Belton's bright-line rule stating that, "[w]e do not believe that the certainty generated by a bright-line test justifies a rule that automatically allows police officers to search every nook and cranny of an automobile just because the driver is arrested for a traffic violation."⁽¹⁷³⁾

The search in Brown occurred after the defendant was arrested "for driving under the influence of alcohol."⁽¹⁷⁴⁾ After the defendant was handcuffed and in custody in the patrol car, the arresting officer searched the interior of the defendant's vehicle and found a small box in the glove compartment.⁽¹⁷⁵⁾ The officer then opened this box.⁽¹⁷⁶⁾ The court held that "[a] police officer may not open a small, closed container found inside an automobile's glove compartment solely as a search incident to the driver's arrest for a traffic violation, after the officer has the suspect--the sole occupant of the vehicle--under control in the police cruiser."⁽¹⁷⁷⁾

The Supreme Court of Ohio, in affirming the trial court's order, stated that the only justification which could save a search of this nature was if it were necessary either to protect the police officer, or to prevent the destruction of evidence.⁽¹⁷⁸⁾ The Supreme Court of Ohio reasoned that because the search was conducted when Brown was handcuffed and in the patrol car, neither of these justifications were present and, thus, the search was invalid.⁽¹⁷⁹⁾ In arriving at its decision, the Supreme Court of Ohio reasoned that Belton was distinguishable because in Belton the police had probable cause to search the automobile.⁽¹⁸⁰⁾ However, the Supreme Court of Ohio went on to say that "[i]f Belton does stand for the proposition that a police officer may conduct a detailed search of an automobile solely because he has arrested one of its occupants, on any charge, we decline to adopt its rule."⁽¹⁸¹⁾

In State v. Gilberts,⁽¹⁸²⁾ the Supreme Court of North Dakota limited the application of Belton by holding that the Belton rule would not be applied to searches of vehicle passengers when the driver is arrested.⁽¹⁸³⁾ In Gilberts, the defendant was a passenger in a car stopped by police for speeding.⁽¹⁸⁴⁾ During the stop, Officer Smith, the arresting officer, discovering that the driver's license had been suspended, arrested the driver and secured him in the patrol car.⁽¹⁸⁵⁾ Smith then went back to the car and directed the defendant to step out.⁽¹⁸⁶⁾ When Gilberts exited the vehicle, "Smith picked up a jacket `sitting on the seat right where [Gilberts] was sitting,'" and was about to hand it to Gilberts when Smith noticed a large amount of money in the pocket.<sup>(187)</sup> Observing the money, "Smith reached into the pocket and pulled out the cash and a small box" marked "gram scale."<sup>(188)</sup> "Smith opened the box, pulled out the scale, and saw that there was `white powder residue' on the inside of the scale."⁽¹⁸⁹⁾ Gilberts admitted to knowing that the scale "had been used to weigh cocaine."⁽¹⁹⁰⁾

The Supreme Court of North Dakota stated that it recognized Belton, but held it inapplicable in this case because of Gilberts's status.⁽¹⁹¹⁾ The court stated that Belton was distinguishable, as the search in Belton had involved an arrestee as opposed to a passenger.⁽¹⁹²⁾ Thus, the court held that "this factual distinction limits a Belton search of the vehicle."⁽¹⁹³⁾ Accordingly, the court held the search invalid and reversed Gilberts's conviction.⁽¹⁹⁴⁾

The responses of state courts to Belton have varied.⁽¹⁹⁵⁾ As has been illustrated, courts are very creative when it comes to search and seizure jurisprudence.⁽¹⁹⁶⁾ One of the major themes that becomes apparent from this survey is that courts which reject Belton, reaffirm the rationale invoked for the search incident to lawful arrest exception under Chimel.⁽¹⁹⁷⁾ Other courts retain the general principles of Belton, but modify it to conform to the requirements under their individual state constitutions.⁽¹⁹⁸⁾

  State v. Pierce

A. Facts

The search at issue in State v. Pierce⁽¹⁹⁹⁾ occurred during the stop of a vehicle for speeding.⁽²⁰⁰⁾ Defendant Eileen Pierce was a passenger in this vehicle.⁽²⁰¹⁾ A Manalapan Township police officer, Officer Rette, stopped the van and asked the owner-operator, Nicholas Grass, for identification.⁽²⁰²⁾ Grass produced a Pennsylvania driver's license which Rette determined had been suspended.⁽²⁰³⁾ Rette ordered Grass to step out from the van, informed him that he was being arrested for driving with a suspended license, performed a pat-down search of his person, handcuffed him, and secured Grass in the back of his patrol car.⁽²⁰⁴⁾

Officer Rette, upon returning to the van, ordered Pierce and the other passenger, Eugene Bernardo, from the van.⁽²⁰⁵⁾ Rette then conducted pat-down searches of both Pierce and Bernardo and found them to be unarmed.⁽²⁰⁶⁾ At this point, back-up officers arrived on the scene and secured Pierce and Bernardo behind the van.⁽²⁰⁷⁾

Rette then proceeded to search the van's interior.⁽²⁰⁸⁾ First, Rette found a "large hunting-type knife" on the front console.⁽²⁰⁹⁾ Rette also found a camera case containing a revolver with "four loaded rounds of .357 magnum ammunition and also two spent rounds."⁽²¹⁰⁾ In addition, Rette found motorcycle jackets in the van, and in the jacket belonging to Pierce, Rette discovered "a cellophane packet containing a trace amount" of cocaine.⁽²¹¹⁾ Officer Rette testified at trial that the search of the van occurred within two to three minutes after he had arrested Grass and placed him in the patrol car.⁽²¹²⁾ Grass, Pierce, and Bernardo were arrested and "indicted for unlawful possession of a weapon without a permit, . . . receiving stolen property (the revolver), . . . and possession of cocaine . . . ."⁽²¹³⁾

B.  Procedure

Prior to trial, Pierce and Grass moved to suppress the evidence found by Officer Rette in his search of the van.⁽²¹⁴⁾ After denial of his motion to suppress, Grass pled guilty to the weapons possession charge and was sentenced to four years imprisonment.⁽²¹⁵⁾ Pierce pled guilty to the cocaine possession charge and was sentenced to three years probation.⁽²¹⁶⁾ Both Pierce and Grass appealed the denial of their suppression motions to the Superior Court Appellate Division.⁽²¹⁷⁾

The appellate division affirmed the trial court's denial of Grass's motion to suppress.⁽²¹⁸⁾ The appellate division held that the search of Grass's van "was a contemporaneous incident of a lawful custodial arrest of an occupant of an automobile, which is authorized by Belton."⁽²¹⁹⁾ The appellate division focused on the contemporaneous element of the search, contrasting its facts with those in State v. Barksdale⁽²²⁰⁾--a case in which the court invalidated a Belton-type search because it occurred long after the arrest.⁽²²¹⁾ The appellate division wrote that the search occurred immediately following Grass's arrest, as opposed to the delay in Barksdale.⁽²²²⁾

The appellate division also rejected Grass's argument that the New Jersey Constitution should be construed to restrict the application of the Belton rule.⁽²²³⁾ The appellate division wrote that the Supreme Court of New Jersey had not indicated that Belton violates the New Jersey Constitution.⁽²²⁴⁾ Therefore, the appellate division maintained, Belton is controlling law.⁽²²⁵⁾

Pierce was similarly unsuccessful in her appeal to the appellate division.⁽²²⁶⁾ A two-judge majority⁽²²⁷⁾ of the court upheld the search for the same reasons that were articulated in Grass.⁽²²⁸⁾ In reaching its decision, the majority observed that application of the Belton rule and the statutory authority given to police officers to effectuate warrantless arrests of individuals for motor vehicle violations⁽²²⁹⁾ creates a potential for abuse.⁽²³⁰⁾ The majority expressed its concern for the possibility that police officers would abuse this arrest power in order to conduct warrantless searches.⁽²³¹⁾ The majority was persuaded, however, that in this case, the offense for which Grass was arrested was a serious motor vehicle violation, and that Officer Rette did not abuse his statutory arrest power.⁽²³²⁾

Judge Pressler dissented from the majority opinion by attacking the validity of Grass's arrest rather than the search itself.⁽²³³⁾ Pressler questioned the majority's reading of Belton, stating that its holding did not authorize police officers to arrest motorists stopped for a traffic violation and subsequent search.⁽²³⁴⁾ Pressler also argued that while the Supreme Court of New Jersey had not accepted Belton, it had recognized that New Jersey may provide greater search and seizure protection than the United States Supreme Court.⁽²³⁵⁾ Therefore, the appellate division was not bound by the Belton search incident to a lawful arrest rule.⁽²³⁶⁾

C.  The Majority Opinion

On appeal, the Supreme Court of New Jersey reversed Pierce's conviction, ruling that the trial court should have granted Pierce's motion to suppress.⁽²³⁷⁾ The court held that because of the protections afforded under article one, paragraph seven, of the New Jersey Constitution,⁽²³⁸⁾ the Belton rule would not be applied "to warrantless arrests for motor-vehicle offenses."⁽²³⁹⁾

In reaching this determination, the Supreme Court of New Jersey relied on its interpretation of the New Jersey Constitution as providing greater protection to its citizens than that provided by the Federal Constitution.⁽²⁴⁰⁾ The Supreme Court of New Jersey wrote that this conclusion was compelled because of its holdings in a number of cases rejecting Supreme Court decisions limiting search and seizure protection.⁽²⁴¹⁾ This body of law, the court stated, "reflects a steadily-evolving commitment by our State courts to provide enhanced protection for our citizens against encroachment of their right to be free from unreasonable searches and seizures."⁽²⁴²⁾ The court went on to state that this commitment "fortifies our conviction that we should not apply the rule of New York v. Belton in this State insofar as it purports to authorize vehicular searches indiscriminately based only on contemporaneous arrests for motor-vehicle violations."⁽²⁴³⁾

The decision of the Supreme Court of New Jersey to reject Belton was made for several additional reasons.⁽²⁴⁴⁾ The court stated that the Chimel rationale, "the analytical source for the Court's holding in Belton, is less persuasive when offered to justify the need for a vehicular search following an arrest for a traffic offense."⁽²⁴⁵⁾ The court reasoned further that when the underlying offense is a traffic violation, the danger to police is minimized.⁽²⁴⁶⁾ This conclusion was based upon the fact that most individuals who commit traffic offenses are unarmed.⁽²⁴⁷⁾ Furthermore, the court noted, "when the predicate offense is a motor-vehicle violation, the vehicle stopped by police would not ordinarily contain evidence at risk of destruction that pertains to the underlying offense."⁽²⁴⁸⁾ The court also stated that motorists arrested for motor vehicle violations are usually taken from the vehicle and into custody, and when this occurs, police justification to search is reduced.⁽²⁴⁹⁾ Regarding Belton, the Supreme Court of New Jersey concluded that "in the context of arrests for motor-vehicle violations, the bright-line Belton holding extends the Chimel rule beyond the logical limits of its principle."⁽²⁵⁰⁾

Another reason advanced by the court in its refusal to follow Belton, was that the adoption of the rule would create a pretext problem.⁽²⁵¹⁾ The court stated that Belton "creates an unwarranted incentive for police officers to `make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits.'"⁽²⁵²⁾

With regard to the concerns of law enforcement, the court stated that its holding would not frustrate police efforts in obtaining evidence or place police in danger.⁽²⁵³⁾ Police officers would still be allowed to search the arrestee's person incident to "a valid custodial arrest" and, under the automobile exception, if police have "probable cause to believe that a vehicle contains contraband or evidence of a crime" they would be permitted to search the vehicle.⁽²⁵⁴⁾ Additionally, if "police officers possess a reasonable belief that a vehicle's driver or occupants pose a threat to their safety, a weapons search of the vehicle is permissible" under the Michigan v. Long⁽²⁵⁵⁾ holding.⁽²⁵⁶⁾ Finally, the court maintained, if during an arrest, the vehicle were to remain "within the area of the arrestee's immediate control," police would be allowed, under Chimel, to search the vehicle.⁽²⁵⁷⁾

The court concluded its opinion with reference to the rule established by Belton, writing:

We acknowledge the virtue of simple, straightforward rules to guide police officers in applying Fourth Amendment doctrine. Nevertheless, we are convinced that automatic application of the Belton bright-line rule to authorize vehicular searches incident to all traffic arrests poses too great a threat to rights guaranteed to New Jersey's citizens by their State Constitution, and that that threat to fundamental rights outweighs any incidental benefit that might accrue to law enforcement because of the simplicity and predictability of the Belton rule.⁽²⁵⁸⁾

D.  The Concurring Opinion

Justice Handler wrote a concurring opinion which was joined by Justice Garibaldi.⁽²⁵⁹⁾ Justice Handler agreed with the result reached by the majority,⁽²⁶⁰⁾ but disagreed with the majority's "perceived need to reject Belton."⁽²⁶¹⁾ According to Justice Handler, it was not necessary to reject Belton as

[t]he search here was invalid, under both Belton and Chimel, for the straightforward and narrow reason that it was not a "contemporaneous" incident of the arrest and the passenger compartment was no longer within the "immediate control" of Grass once he had been physically restrained and removed and placed in the patrol car.⁽²⁶²⁾

Justice Handler also disagreed with the majority's suggestion that the search in Pierce would be upheld under Belton.⁽²⁶³⁾ This conclusion is not compelled, wrote Justice Handler, "[b]ecause Belton applies Chimel, and does not purport to alter Chimel, it in no way obviates the requirement that the searched area actually be within the immediate control of the arrestee."⁽²⁶⁴⁾ In the instant case, Justice Handler wrote, because Grass was removed from the vehicle and handcuffed, this established that the van was no longer in Grass's control.⁽²⁶⁵⁾

Justice Handler recognized that federal courts have upheld Belton searches even where the arrestees were handcuffed and placed in patrol cars.⁽²⁶⁶⁾ However, he argued that these decisions were based on the Belton Court's formulation of a bright-line rule.⁽²⁶⁷⁾ Justice Handler, while agreeing that Belton did create a bright-line rule, wrote that because the United States Supreme Court still retained the Chimel principles in Belton, the concept of control is determinative when reaching a decision as to the validity of a search.⁽²⁶⁸⁾

Justice Handler stated that the concept of control had been the guiding factor used by the Supreme Court of New Jersey in its previous decisions.⁽²⁶⁹⁾ For example, in State v. Welsh,⁽²⁷⁰⁾ decided before Belton, the court invalidated a search incident to a lawful arrest where the arrestee was handcuffed and in a patrol car.⁽²⁷¹⁾ The Welsh court determined that the arrestee had no longer been in control of the vehicle.⁽²⁷²⁾ Justice Handler also criticized the court for discounting "the potential risks [to police officers] associated with any custodial arrest."⁽²⁷³⁾

  Analysis

A.  Rejection of Belton Under the New Jersey Constitution

It is a fundamental tenet of federalism that state courts may "interpret their own constitutions as granting more protections to individuals than does the federal constitution, as read by the United States Supreme Court."⁽²⁷⁴⁾ While this is a basic concept of federalism, state divergence from United States Supreme Court decisions is a fairly recent phenomenon.⁽²⁷⁵⁾ The Supreme Court of New Jersey has been at the forefront of this development,⁽²⁷⁶⁾ and has labored toward a principled approach when considering whether to accept or reject United States Supreme Court interpretations of constitutional rights.⁽²⁷⁷⁾ The question presented here is whether the Supreme Court of New Jersey's decision in Pierce represents such an approach.

In Pierce, the Supreme Court of New Jersey rejected the Belton rule, and interpreted article one, paragraph seven of its state constitution, as providing greater protection than the Federal Fourth Amendment.⁽²⁷⁸⁾ One problem posed by this interpretation is that, because these provisions are identical, it is questionable whether the court may interpret its state provision as providing enhanced search and seizure protection.⁽²⁷⁹⁾ This issue was encountered in State v. Johnson,⁽²⁸⁰⁾ a case in which the Supreme Court of New Jersey reserved itself the "right to construe our State constitution in accordance with what we conceive to be its plain meaning."⁽²⁸¹⁾ Thus, the Johnson court articulated its position that it was willing to grant greater search and seizure protection than had been provided by the United State Supreme Court in its decisions, even where the provisions at issue are identical.⁽²⁸²⁾ Notably, in Johnson, the court neither provided a methodology by which to evaluate United States Supreme Court decisions, nor stated when it would grant enhanced protection.⁽²⁸³⁾

A state court which refuses to follow a United States Supreme Court ruling under its constitution runs the risk of being criticized if it neglects to use an approach which is principled.⁽²⁸⁴⁾ In State v. Hunt,⁽²⁸⁵⁾ Justice Handler, recognizing the need to provide a principled approach, advocated considering seven criteria when deciding whether to reject United States Supreme Court rulings.⁽²⁸⁶⁾ Under Justice Handler's approach, the Supreme Court of New Jersey would consider: the "textual language" of the state constitution's provision in comparison with the federal provision,⁽²⁸⁷⁾ the "legislative history" of the state provision,⁽²⁸⁸⁾ "preexisting state law,"⁽²⁸⁹⁾ the "structural differences" between the federal and state constitutions,⁽²⁹⁰⁾ "matters of particular state interest or local concern,"⁽²⁹¹⁾ "state traditions,"⁽²⁹²⁾ and "public attitudes."⁽²⁹³⁾

In a case involving the freedom of the press to provide media coverage of pre-trial hearings,⁽²⁹⁴⁾ Justice Handler added to his list of factors: the United States Supreme Court's determination of a legal issue, the case's importance, and the public interest.⁽²⁹⁵⁾

The Supreme Court of New Jersey uses what is termed the "interstitial" or "supplemental" approach in determining whether to part with Supreme Court rulings.⁽²⁹⁶⁾ Under this approach, "[t]he court considers first the federal constitutional issue. The court will [then] turn to the state constitution to determine whether the state constitution affords greater protection than the United States Constitution only if the federal constitution does not protect the defendant."⁽²⁹⁷⁾

When deciding "whether or not to diverge" from United States Supreme Court decisions, the Supreme Court of New Jersey should therefore,

review the federal law, and then weigh the language of the state constitutional provision, its legislative history, the existing state law, federalism concerns, particular state interests or concerns, state traditions, public attitudes, the status of the federal law, and the importance of the case as well as the public interest involved.⁽²⁹⁸⁾

The Pierce court appears to have followed this overall approach in deciding the applicability of the Belton rule under the New Jersey Constitution.⁽²⁹⁹⁾ The court first reviewed the federal precedent on the search incident to lawful arrest exception,⁽³⁰⁰⁾ and found the validity of the search of Grass's van to rest exclusively on whether Belton would be applied.⁽³⁰¹⁾ The court then proceeded in its analysis specifically using two of Justice Handler's criteria:⁽³⁰²⁾ state traditions and existing state law.⁽³⁰³⁾

In Pierce, the court cited to Justice Handler's discussion of state traditions as a basis for deciding whether to depart from federal precedent.⁽³⁰⁴⁾ The court noted its tradition of providing greater search and seizure protection to New Jersey citizens than is provided under federal law.⁽³⁰⁵⁾ To the court, this tradition of divergence mandated the result reached in Pierce.⁽³⁰⁶⁾

This tradition is evidenced by several cases in which the Supreme Court of New Jersey had rejected United States Supreme Court decisions when it found that these decisions failed to provide New Jersey citizens with adequate protection against unreasonable searches and seizures.⁽³⁰⁷⁾ In these cases, the Supreme Court of New Jersey rejected United States Supreme Court precedent regarding the elements needed to establish a valid consent search,⁽³⁰⁸⁾ the limitation on standing to challenge evidence seized in a motor vehicle search,⁽³⁰⁹⁾ the good faith exception to the exclusionary rule,⁽³¹⁰⁾ the privacy of information contained within telephone billing records,⁽³¹¹⁾ and searches of curbside garbage.⁽³¹²⁾

The Pierce court also stated explicitly that state case law prior to Belton did not recognize a right to search a motor vehicle on the sole basis of an arrest for a traffic violation.⁽³¹³⁾ In addition, the court stated in State v. Alston,⁽³¹⁴⁾ that it had identified the inconsistency between its decision in State v. Welsh⁽³¹⁵⁾ and the Belton rule, shortly after Belton was decided.⁽³¹⁶⁾ The Pierce court noted that because the search in Alston was sustained under the automobile exception, it had deferred consideration of Belton's effect on the court's search and seizure jurisprudence.⁽³¹⁷⁾ Thus, it appears that the court has long awaited its chance to put the Belton issue to rest, and its decision in Pierce represents its final determination of this issue.⁽³¹⁸⁾

Overall, the Supreme Court of New Jersey's approach to the interpretation of article one, paragraph seven of the New Jersey Constitution in Pierce, represents the commitment by the court to use a sound approach when considering United States Supreme Court decisions.⁽³¹⁹⁾ It is important to stress, as noted in State v. Hempele,⁽³²⁰⁾ that the Supreme Court of New Jersey does look to the United States Supreme Court for guidance in interpreting the New Jersey Constitution.⁽³²¹⁾ While acknowledging the value of Supreme Court decisions as a source of wisdom, the Supreme Court of New Jersey has a proper understanding of its place in the federal system as the court in Hempele wrote:

But although that Court may be a polestar that guides us as we navigate the New Jersey Constitution, we bear ultimate responsibility for the safe passage of our ship. Our eyes must not be so fixed on that star that we risk the welfare of our passengers on the shoals of constitutional doctrine. In interpreting the New Jersey Constitution, we must look in front of us as well as above us.⁽³²²⁾

B.  The Majority, Justice Handler and the Need to Reject Belton

In Pierce, the Supreme Court of New Jersey ruled unanimously to reverse Pierce's conviction because of the invalidity of the search.⁽³²³⁾ The court was divided, however, on the need to reject Belton as part of the court's search and seizure jurisprudence.⁽³²⁴⁾ While the majority held that it was necessary to reject the Belton rule, Justice Handler argued that this need had been overstated by the majority, as the search here was invalid under Belton.⁽³²⁵⁾ An analysis of these issues reveals that Justice Handler is incorrect in his conclusion, and that under Belton, the search in Pierce would have been valid.⁽³²⁶⁾

In his concurring opinion, Justice Handler reasoned that the search at issue in Pierce was invalid because it was not "contemporaneous" with the arrest, and that once Grass was handcuffed and in custody, the vehicle was no longer within his "immediate control."⁽³²⁷⁾ In reference to the requirement under Belton--that the search must occur contemporaneously with the arrest--the facts of Pierce suggest that this element was satisfied.⁽³²⁸⁾ In Pierce, the search occurred within two to three minutes after the arrest.⁽³²⁹⁾ Under the Belton analysis, as long as the search is conducted at the scene of the arrest, it will be deemed to have been contemporaneous.⁽³³⁰⁾ On this point, Justice Handler appears to have expanded the meaning of "contemporaneous" beyond that which is provided by the Belton Court.⁽³³¹⁾

In addition, the fact that Grass was handcuffed and in custody would not be relevant under Belton.⁽³³²⁾ As a general rule, Belton searches are valid even where the arrestee is handcuffed and placed into the patrol car.⁽³³³⁾ Thus, contrary to Justice Handler's conclusion, under Belton this search would be valid.⁽³³⁴⁾

Justice Handler focused on the elements of Chimel as opposed to those in Belton.⁽³³⁵⁾ His only argument against the rejection of Belton was that because the United States Supreme Court purported to retain Chimel, it should not be rejected.⁽³³⁶⁾ The problem with this argument is that Belton does not retain the principles of Chimel.⁽³³⁷⁾ The immediate control test that Chimel established has been eliminated by the adoption of the bright-line rule in Belton.⁽³³⁸⁾

The majority decision in Pierce stated that Chimel is to be the guide in determining the validity of a vehicular search incident to the lawful arrest of an occupant.⁽³³⁹⁾ A rejection of Belton only eliminates the intrusion on Fourth Amendment rights inherent in the application of the bright-line rule.⁽³⁴⁰⁾ Therefore, because Justice Handler's only concerns were the principles of Chimel, rather than the need for a bright-line rule to guide police officers, it is difficult to understand his reluctance to join the majority.⁽³⁴¹⁾

C.  Belton is Dangerous Fourth Amendment Precedent

In addition to the interpretation of article one, paragraph seven of the New Jersey Constitution, as providing enhanced protection, the Supreme Court of New Jersey rejected Belton on the basis that Belton is an incorrect rule of criminal procedure.⁽³⁴²⁾ An analysis of the issues involved in a Belton search of a vehicle reveals that the Pierce court is correct in its refusal to adopt Belton as part of its search and seizure jurisprudence.

The Supreme Court's decision in Belton has been widely criticized by commentators for abandoning the rationale espoused in Chimel to justify searches conducted incident to lawful arrests.⁽³⁴³⁾ This rationale provides that a search incident to a lawful arrest of the area within an arrestee's immediate control is necessary to protect police officers and prevent the destruction of evidence.⁽³⁴⁴⁾ In Belton, the Supreme Court held that in the context of a motor vehicle arrest the passenger compartment is always within the control of the arrestee.⁽³⁴⁵⁾ Whether the passenger compartment is within the actual control of the arrestee during the arrest is immaterial under Belton.⁽³⁴⁶⁾ It therefore follows that Belton has indeed abandoned Chimel, under which the validity of a search turns on whether the area searched is within the arrestee's immediate control.⁽³⁴⁷⁾

The adoption in Belton of the generalization that the passenger compartment is always within the arrestee's control has also been challenged.⁽³⁴⁸⁾ This challenge is based on the fact that the reverse is usually true; that is, during the arrest of a motorist, the passenger compartment is usually beyond his or her control.⁽³⁴⁹⁾ This occurs because occupants are, in the overwhelming majority of cases, removed from the vehicle, handcuffed, and placed in custody.⁽³⁵⁰⁾ Once the occupants are so removed, it follows that there is virtually no possibility that they will be able to obtain weapons or destroy evidence located in the vehicle.⁽³⁵¹⁾

These considerations further affirm that Belton does not retain Chimel.⁽³⁵²⁾ In addition, the "generalization" adopted by the Supreme Court in Belton is divorced from the way in which motor vehicle searches incident to lawful arrests actually occur.⁽³⁵³⁾ Because Belton has abandoned the justifications underlying Chimel and does not take into account the realities of police conduct, the Pierce court's rejection of its rule is correct.⁽³⁵⁴⁾

The Supreme Court of New Jersey was wise to reject Belton as it is easily subject to abuse by police officers.⁽³⁵⁵⁾ Under the Belton decision, if police officers effectuate a lawful arrest of a motor vehicle occupant, the right to search follows automatically.⁽³⁵⁶⁾ Therefore, there is always a risk that police will arrest a motorist solely as an excuse to search the vehicle.⁽³⁵⁷⁾

An example of this police tactic is provided by Traylor v. State.⁽³⁵⁸⁾ In Traylor, police officers were on patrol in a drug-infested area.⁽³⁵⁹⁾ These officers observed the defendant Traylor, known by them to be a drug dealer, sitting in a parked car.⁽³⁶⁰⁾ The officers radioed police headquarters and discovered that Traylor's driver's license had been suspended.⁽³⁶¹⁾ The officers waited until Traylor drove off, pulled him over and arrested him for driving while his license was suspended.⁽³⁶²⁾ The police officers then conducted a search of Traylor's vehicle and found plastic bags filled with heroin.⁽³⁶³⁾ The Supreme Court of Delaware upheld the search as valid under Belton.⁽³⁶⁴⁾

The risk of police making arrests for motor vehicle violations as a way of taking advantage of the Belton authorization to search is apparent from Traylor.⁽³⁶⁵⁾ While the police's real motive for Traylor's arrest is readily apparent, in most instances, it is difficult for courts to discern when a pretexual arrest has occurred.⁽³⁶⁶⁾ There is no guarantee that such ulterior motivation will be found by the courts and dealt with properly.⁽³⁶⁷⁾

The only way to solve this problem is to take away the incentive, created by Belton, for police officers to engage in misconduct.⁽³⁶⁸⁾ This reason alone justifies the Pierce court's rejection of Belton.

D.  The Impact of State v. Pierce

1.  Pierce Will Not Frustrate Police Efforts

The Supreme Court of New Jersey's opinion in Pierce exemplifies the ever-present tension, inherent in any adjudication of Fourth Amendment rights, "between the privacy rights of individuals and the ability of police officers to enforce the law."⁽³⁶⁹⁾ Fourth Amendment jurisprudence is, in essence, an outcome of balancing these two concerns.⁽³⁷⁰⁾

In Belton, the necessity of providing police guidance in the context of motor vehicle searches incident to lawful arrests weighed heavily and resulted in the balance being struck in favor of law enforcement.⁽³⁷¹⁾ In Pierce, the need to protect the right of citizens to be free from unreasonable searches and seizures outweighed the benefit of a bright line for police.⁽³⁷²⁾ The extent of the protection afforded to New Jersey citizens through the Pierce decision remains to be seen. While Pierce will operate to restrict the potential violations of Fourth Amendment rights inherent in following Belton, there is always a possibility that police could circumvent the decision in Pierce.⁽³⁷³⁾

One certainty of the Pierce decision is that it will not hinder law enforcement's ability to seize evidence in the overall motor vehicle context.⁽³⁷⁴⁾ This conclusion is reached through an understanding that most warrantless automobile searches can be sustained on other grounds.⁽³⁷⁵⁾

One ground is the automobile exception, under which police are authorized to search a vehicle where they have the requisite probable cause to believe the vehicle contains contraband or evidence of crime.⁽³⁷⁶⁾ This exception is an effective tool for police in establishing a right to search a vehicle as "the very same facts that constitute probable cause to arrest a vehicle's occupant often will afford police officers probable cause to believe that the vehicle contains evidence of crime or contraband."⁽³⁷⁷⁾

In addition, the Pierce court stated that police are authorized to search a vehicle for weapons where they have a reasonable suspicion that an occupant is armed and dangerous.⁽³⁷⁸⁾ Established by the United States Supreme Court in Michigan v. Long,⁽³⁷⁹⁾ this exception was previously accepted by the Supreme Court of New Jersey.⁽³⁸⁰⁾ Also, with regard to weapons searches, the court stated that "[e]ven if a police officer errs in the `split-second' decision whether a reasonable basis exists for a weapons search . . . the only adverse consequence to the officer is that evidence of crime uncovered by the search may be suppressed."⁽³⁸¹⁾ Therefore, the Pierce decision should have no effect on police efforts to ensure their own safety during a motor vehicle stop.⁽³⁸²⁾

Moreover, the Pierce court held that its decision would not affect the right of police to conduct searches incident to lawful arrests for motor vehicle violations of the arrestee's person, as established by United States Supreme Court decisions.⁽³⁸³⁾ Therefore, it appears that Pierce will not act to interfere with police in the majority of their activities relating to the search for evidence in the motor vehicle context. Pierce also will not hinder police efforts to provide for their own safety.

2.  Pierce Provides Search and Seizure Protection

The Supreme Court of New Jersey's holding that the Belton rule will not be applied to authorize searches incident to the lawful arrests of motorists should operate to eliminate the problem of pretextual searches.⁽³⁸⁴⁾ The rejection of the Belton rule will ensure that police will no longer have the incentive to effectuate an arrest for a motor vehicle violation solely as an excuse to search.⁽³⁸⁵⁾

As a result of Pierce, police will not be authorized to search pursuant to a lawful arrest for a motor vehicle violation; if police execute such a search, any evidence seized will be suppressed.⁽³⁸⁶⁾ While this is an undesirable effect for police, its occurrence will be minimal as police are usually able to find other justifications to search a vehicle and seize evidence.⁽³⁸⁷⁾ In addition, the beneficial effects of Pierce should prove to outweigh any undesirable results.⁽³⁸⁸⁾ One such effect is that the privacy rights of the average citizen will be protected.⁽³⁸⁹⁾ Thus, because of Pierce, an operator of a motor vehicle will not be required to submit to a search of his vehicle "merely because he parks too close to a fire hydrant, fails to stop at a stop sign, passes a red light, exceeds the speed limit, or commits like traffic violations."⁽³⁹⁰⁾

While the Supreme Court of New Jersey's rejection of Belton's bright-line rule will result in enhanced protection to arrestees, police may be able to circumvent the holding in Pierce.⁽³⁹¹⁾ This possibility appears from the court's holding that when an occupant of a vehicle is arrested in the vehicle or remains adjacent to it, a Chimel search could be sustainable.⁽³⁹²⁾ Police could adopt the practice of arresting occupants so that the vehicle's interior always remains within their immediate control.⁽³⁹³⁾ It is unlikely, however, that police will adopt such a procedure because in an arrest situation, police are more concerned with securing the arrestee than in finding a way to circumvent court rulings.⁽³⁹⁴⁾

This issue illustrates the fundamental difference between Belton and Chimel. Belton, in establishing a bright-line rule, foreclosed the fact style of adjudication that persisted under Chimel.⁽³⁹⁵⁾ Chimel established the "immediate control" test, where cases turned on whether the area searched was in fact within the arrestee's control.⁽³⁹⁶⁾ Therefore, by rejecting Belton and reaffirming the principles of Chimel, the Supreme Court of New Jersey expressed its preference for the case-by-case adjudication of disputes over the validity of searches incident to lawful arrests.⁽³⁹⁷⁾

  Conclusion

The Supreme Court of New Jersey's decision in Pierce represents an important chapter in the development of state constitutional law. In Pierce, the court looked not only to its own search and seizure jurisprudence in deciding whether to reject the United States Supreme Court's Belton rule, but also, to its sister states.⁽³⁹⁸⁾ Other states would be wise to consider the Pierce court's reasoning when deciding whether to adopt or retain the United States Supreme Court's rule.⁽³⁹⁹⁾

Pierce also adds another voice to the chorus of Belton criticism, indicating to the United States Supreme Court that its decision in Belton was incorrect and should be reconsidered.

Jon F. Sheehan^*

1. New York v. Belton, 453 U.S. 454 (1981).

2. Justice Stewart wrote the majority opinion and Justices Blackmun, Powell and Chief Justice Burger joined. Id. at 455-63. Justice Rehnquist filed a concurring opinion and joined the majority. Id. at 463 (Rehnquist, J., concurring). Justice Stevens concurred in the judgment but not in the majority opinion. Id. (Stevens, J., concurring in the judgment). Justice Brennan filed a dissenting opinion and was joined by Justice Marshall. Id. at 463-72 (Brennan, J., dissenting). Justice White filed a separate dissenting opinion which Justice Marshall joined. Id. at 472 (White, J., dissenting).

3. Id. at 460 (footnote omitted).

4. See infra notes 37-38 and accompanying text.

5. Catherine Hancock, State Court Activism and Searches Incident to Arrest, 68 Va. L. Rev. 1085, 1131 (1982) (observing that by eliminating the Chimel immediate control test, Belton has lowered Fourth Amendment protections); see also Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 274-75 (1984) (noting the inconsistency between the Court's holding in Belton and the rationale underlying Chimel); Yale Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, in 3 The Supreme Court Trends and Developments 1980-1981, at 69, 96 (Jesse Chaper et al. eds., 1982) (arguing that the automobile exception, which is based on probable cause, should have been used to validate the search at issue in Belton); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U. Pitt. L. Rev. 307, 331-32 (1982) (observing that because Belton searches are not based on probable cause, there is a risk of police conducting pretextual searches); David S. Rudstein, The Search of an Automobile Incident to an Arrest: An Analysis of New York v. Belton, 136 Marq. L. Rev. 205, 214 (1984) (observing that Belton allows searches incident to lawful arrests even where the arrestee is handcuffed and in custody); John Parker, Note, Robbins and Belton--Inconsistency and Confusion Continue to Reign Supreme in the Area of Warrantless Vehicle Searches, 19 Hous. L. Rev. 527, 541 (1982) (stating that Belton represents a departure from Chimel); David M. Silk, Comment, When Bright Lines Break Down: Limiting New York v. Belton, 136 U. Pa. L. Rev. 281, 282 (1987) (arguing that Belton should be applied narrowly so as to ensure Fourth Amendment protections); Robert Stern, Comment, Robbins v. California and New York v. Belton: The Supreme Court Opens Car Doors to Container Searches, 31 Am. U. L. Rev. 291, 312-13 (1982) (observing that Belton violates Fourth Amendment rights by allowing containers to be searched incident to the arrest of a motor vehicle occupant).

6. See infra note 68 and accompanying text.

7. See infra note 68 and accompanying text.

8. See infra notes 70, 73-198, 237-58, 399 and accompanying text.

9. State v. Pierce, 642 A.2d 947 (N.J. 1994).

10. Id. at 959.

11. Id. at 960. Article I, para. 7 of the New Jersey Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.N.J. Const. art. I, para. 7.

12. See infra notes 70, 73-198, 237-58, 399 and accompanying text.

13. Chimel v. California, 395 U.S. 752 (1969).

14. See infra part II.A.

15. See infra part II.B.

16. See infra part III.

17. See infra part IV.

18. Hancock, supra note 5, at 1086; see also infra part V.

19. The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV.

20. Some of the police activity which the United States Supreme Court has exempted from the Fourth Amendment's warrant requirement includes: searches conducted under exigent circumstances, see Warden v. Hayden, 387 U.S. 294, 298-300; searches incident to lawful arrests, see New York v. Belton, 453 U.S. 454, 460 (1981); United States v. Robinson, 414 U.S. 218, 235-36 (1973); Chimel v. California, 395 U.S. 752, 762-63 (1969); Gustafson v. Florida, 414 U.S. 260, 265-66 (1967); searches of vehicles that police have probable cause to believe contain contraband or evidence of crime, see Carroll v. United States, 267 U.S. 132, 149 (1925); stop and frisk conduct, see Terry v. Ohio, 392 U.S. 1, 20-27 (1968); inventory searches, see Illinois v. Lafayette, 462 U.S. 640, 643-48 (1983); Colorado v. Bertine, 479 U.S. 367, 371-76 (1987); consent searches, see Schneckloth v. Bustamonte, 412 U.S. 218, 223-49 (1973); seizure of items observed in plain view, see Coolidge v. New Hampshire, 403 U.S. 443, 464-73 (1971); seizure of items perceived by officer's sense of touch, see Minnesota v. Dickerson, 113 S. Ct. 2130, 2137 (1993). For a discussion of Chimel, see infra notes 30-44 and accompanying text. For a discussion of Belton, see infra notes 45-67 and accompanying text; see also 3 Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment §§ 5.2(a)-(d), 6.3(b)-(c), 6.5(a)-(b), 7.1-7.2, 7.4(a), 7.5, 8.1-8.6; 4 id. §§ 9.1-9.6 (3d ed. 1996).

21. Kamisar, supra note 5, at 71.

22. Weeks v. United States, 232 U.S. 383 (1914) (establishing, in a landmark decision, the federal exclusionary rule which requires that evidence obtained in violation of the Fourth Amendment be suppressed).

23. Id. at 392.

24. Id.

25. Carroll v. United States, 267 U.S. 132, 158 (1925) (dictum) (approving search for "whatever is found upon his person or in his control").

26. Agnello v. United States, 269 U.S. 20, 30 (1925) (dictum) (approving search incident to arrest of the person and "where the arrest is made").

27. See, e.g., United States v. Rabinowitz, 339 U.S. 56, 63-66 (1950); Trupiano v. United States, 334 U.S. 699, 709 (1948); Harris v. United States, 331 U.S. 145, 154-55 (1947); Go-Bart Importing Co. v. United States, 282 U.S. 344, 358 (1931); Marron v. United States, 275 U.S. 192, 199 (1927).

28. Chimel v. California, 395 U.S. 752 (1969).

29. See id. at 762-63.

30. Id. at 753.

31. Id. at 754.

32. Id.

33. Chimel, 395 U.S. at 754.

34. Id.

35. Id. at 768.

36. Id. at 762 (alterations in original) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).

37. Id. at 762-63.

38. Chimel, 395 U.S. at 762-63.

39. Id. at 763.

40. See supra text accompanying note 38.

41. See Charles L. Levy, Comment, The Supreme Court's Police Manual: Texas Courts Beware, 34 Baylor L. Rev. 635, 638-39 (1982).

42. New York v. Belton, 453 U.S. 454, 460 (1981); see also infra note 66 and accompanying text.

43. Chimel, 395 U.S. at 763.

44. Id.

45. New York v. Belton, 453 U.S. 454 (1981).

46. Id. at 455.

47. Id.

48. Id. at 455-56.

49. Id. at 456.

50. Belton, 453 U.S. at 456.

51. Id.

52. Id.

53. Id.

54. Id.

55. Belton, 453 U.S. at 456.

56. Id.

57. People v. Belton, 407 N.E.2d 420, 421 (N.Y. 1980), cert. granted, 449 U.S. 1109, rev'd, 453 U.S. 454, and reh'g denied, 453 U.S. 950 (1981).

58. New York v. Belton, 453 U.S. 454, 463 (1981).

59. Id. at 460.

60. Id. at 460 n.4.

61. Id.

62. Id.

63. See Belton, 453 U.S. at 458-60.

64. Id. at 458 (quoting Wayne R. LaFave, "Case-by-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974)). Professor LaFave stated that the use of his quotation by the Court in its formulation of the bright-line rule placed him in an "awkward position." See LaFave, supra note 5, at 325. That is, while he supported "the Court's initial premise in Belton," he later concluded that "the Belton result does a disservice to the development of sound fourth amendment [sic] doctrine." Id. at 325.

65. Belton, 454 U.S. at 458 (citing LaFave, supra note 64, at 141).

66. Id. at 460.

67. Id. (alteration in the original) (quoting Chimel, 395 U.S. at 763). In his dissent, Justice Brennan criticized the majority's creation of a bright-line rule which "fails to reflect Chimel's underlying policy justifications." Belton, 454 U.S. at 463 (Brennan, J., dissenting). Justice Brennan argued that the justifications underlying Chimel--officer safety and preservation of evidence--are non-existent once an arrest has been effectuated and the arrestee is in custody because "at that point there is no possibility that the arrestee could reach weapons or contraband." Id. at 465-66 (Brennan, J., dissenting) (citing Chimel v. California, 395 U.S. 752, 764 (1969)). Justice Brennan not only stated that the bright-line rule would fail to provide police officers guidance, but he questioned whether a bright-line rule was even needed. Id. at 470-71 ("The standard announced in Chimel is not nearly as difficult to apply as the Court suggests. To the contrary, I continue to believe that Chimel provides a sound, workable rule for determining the constitutionality of a warrantless search incident to arrest.").

68. See Silk, Comment, supra note 5, at 292 n.81 (citing Johnson v. State, 406 So. 2d 446, 448 (Ala. Crim. App. 1981); State v. Hersch, 662 P.2d 1035, 1038 (Ariz. Ct. App. 1982); Baxter v. State, 626 S.W.2d 935, 937 (Ark.), cert. denied, 457 U.S. 1118 (1982); People v. Henry, 631 P.2d 1122, 1128 (Colo. 1981); Traylor v. State, 458 A.2d 1170, 1173 (Del. 1983); State v. Anders, 407 So. 2d 290, 292 (Fla. Dist. Ct. App. 1981); Boyd v. State, 308 S.E.2d 626, 630 (Ga. Ct. App. 1983); State v. Calegar, 661 P.2d 311, 315 (Idaho 1983); People v. Hoskins, 461 N.E.2d 941, 945 (Ill.), cert. denied, 469 U.S. 840 (1984); Doe v. State, 451 N.E.2d 1096, 1098 (Ind. Ct. App. 1983); State v. Sanders, 312 N.W.2d 534, 539 (Iowa 1981); State v. White, 640 P.2d 1231, 1232 (Kan. 1982); State v. Lamare, 463 A.2d 279, 280 (Me. 1983); Farrow v. State, 514 A.2d 35, 39 (Md. Ct. Spec. App. 1986), cert. denied, 519 A.2d 1283 (Md. 1987); People v. Miller, 340 N.W.2d 858, 861 (Mich. Ct. App. 1983), cert. denied, 466 U.S. 943 (1984); State v. Liljedahl, 327 N.W.2d 27, 30 (Minn. 1982); Horton v. State, 408 So. 2d 1197, 1198-99 (Miss. 1982); State v. Harvey, 648 S.W.2d 87, 88 (Mo. 1983) (en banc); State v. Roth, 331 N.W.2d 819, 821 (Neb.), aff'd, 348 N.W.2d 125, 125 (Neb. 1984); State v. Cooper, 286 S.E.2d 102, 104 (N.C. 1982); Nealy v. State, 636 P.2d 378, 381 (Okla. Crim. App. 1981); State v. Rice, 327 N.W.2d 128, 131 (S.D. 1982); State v. Cabage, 649 S.W.2d 589, 591-92 (Tenn. 1983); Alexander v. State, 629 S.W.2d 776, 778 (Tex. Ct. App. 1981); State ex rel. K.K.C., 636 P.2d 1044, 1046 (Utah 1981); State v. Phillips, 436 A.2d 746, 749 (Vt. 1981); State v. Boswell, 294 S.E.2d 287, 295 (W. Va. 1981); State v. Fry, 388 N.W.2d 565, 571-72 (Wis. 1986); Lopez v. State, 643 P.2d 682, 685 (Wyo. 1982)); see also State v. Waller, 612 A.2d 1189, 1192 (Conn. 1992); Commonwealth v. Brown, 890 S.W.2d 286, 290 (Ky. 1994).

69. See Hancock, supra note 5, at 1128. This reluctance to reject United States Supreme Court decisions may be due, in part, to the fact that state courts are unaccustomed to what some commentators view as the state courts' "new leadership role." Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex. L. Rev. 1141, 1153 (1985). As one commentator writing about the exclusionary rule explains:

"One can understand the reluctance of state courts to embark upon the fashioning of state remedies for illegally obtained evidence. For almost twenty years the Supreme Court of the United States proceeded further in the development of exclusionary jurisprudence than many state courts were willing to go. The Supreme Court had to prod and drag those courts into following its lead. Today, however, the roles have been reversed for many state courts. They find that the leader is now behind them and apparently heading in the opposite (or at least different) direction. One can expect, then, a new focus of attention on state law provisions."Id. at 1154 (quoting Robert O. Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experiment, 59 Tex. L. Rev. 191, 193 (1981)).

70. Justice Stevens, dissenting in Robbins v. California, 453 U.S. 420 (1981) (the companion case to New York v. Belton, 453 U.S. 454 (1981)), wrote in response to the Belton decision:

After today, the driver of a vehicle stopped for a traffic violation must look to state law for protection from reasonable searches. Such protection may come from two sources. Statutory law may provide some protection. . . . [However,] [g]iven the incomplete protection afforded by statutory law, drivers in many States will have to persuade state supreme courts to interpret the unreasonable searches permitted by the Court here.

Robbins, 453 U.S. at 451 n.12 (Stevens, J., dissenting) (citations omitted). In State v. Pierce, 642 A.2d 947 (N.J. 1994), the Supreme Court of New Jersey cited to the decisions of seven states (Louisiana, Massachusetts, New York, North Dakota, Ohio, Oregon, and Washington) which have provided protection against the Belton rule. Pierce, 642 A.2d at 956-67. A discussion of these decisions follows. See infra notes 73-198 and accompanying text. Following the Supreme Court of New Jersey's decision in Pierce, the Supreme Court of Pennsylvania in Commonwealth v. White, 1995 Pa. LEXIS 1481 (Dec. 29, 1995) also rejected the Belton rule under its state constitution.

71. Hancock, supra note 5, at 1128.

72. Id.

73. People v. Belton, 432 N.E.2d 745 (N.Y. 1982), on remand from New York v. Belton, 453 U.S. 950 (1981).

74. See id. at 748.

75. The automobile exception was established in Carroll v. United States, 267 U.S. 132 (1925) (approving the warrantless search of an automobile where police had probable cause to believe that the automobile contained contraband or evidence of crime).

76. See Belton, 432 N.E.2d at 747-48.

77. Id. at 748.

78. Id.

79. See id. at 747.

80. People v. Blasich, 541 N.E.2d 40 (N.Y. 1989).

81. Id. at 43.

82. Id. at 42.

83. Id.

84. Id.

85. Blasich, 541 N.E.2d at 42.

86. Id. at 42.

87. Id.

88. Id.

89. Id.

90. Blasich, 541 N.E.2d at 43.

91. Id. at 45.

92. State v. Hernandez, 410 So. 2d 1381 (La. 1982).

93. Id. at 1383.

94. Id.

95. Id.

96. Id.

97. Hernandez, 410 So. 2d at 1383.

98. Id.

99. Id. at 1385.

100. Id.

101. Id. (citing La. Const. of 1974, pmbl.; id. art. I, § 1).

102. Hernandez, 410 So. 2d at 1385. Article I, § 5 of the Louisiana Constitution provides:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.La. Const. of 1974, art. I, § 5.

103. Hernandez, 410 So. 2d at 1385.

104. Id. at 1386.

105. Commonwealth v. Toole, 389 Mass. 159, 448 N.E.2d 1264 (1983).

106. Id. at 164, 448 N.E.2d at 1268.

107. Id. at 159, 448 N.E.2d at 1265-66.

108. Id., 448 N.E.2d at 1266.

109. Id. at 159-60, 448 N.E.2d at 1266.

110. Toole, 389 Mass. at 160, 448 N.E.2d at 1266.

111. Id. at 160, 448 N.E.2d at 1266.

112. Id.

113. Id. at 161, 448 N.E.2d at 1266-67 (citing New York v. Belton, 453 U.S. 454, 460 (1981)).

114. See id. at 161, 448 N.E.2d at 1266-67.

115. The following section was added to Massachusetts General Laws chapter 276, § 1 by the Massachusetts Legislature in 1974:

A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings. Mass. Gen. L. ch. 276, § 1 (1974), quoted in Toole, 389 Mass. at 161, 448 N.E.2d at 1266.

116. Mass. Gen. L. ch. 276, § 1 (1974), cited in Toole, 389 Mass. at 161, 448 N.E.2d at 1266.

117. United States v. Robinson, 414 U.S. 218 (1973) (holding that police are authorized to search an arrestee's person and any containers he may possess, even though there is no possibility of finding evidence relating to the underlying arrest).

118. Toole, 389 Mass. at 161, 448 N.E.2d at 1266.

119. Id. at 162, 164, 448 N.E.2d at 1267-68. As this decision illustrates, the restrictions placed on the admission of evidence under Robinson may impact the Belton rule. See Toole, 389 Mass. at 162, 448 N.E.2d at 1267. Therefore, some states, through their rejection of Robinson, may have indirectly diminished the likelihood of Belton searches being upheld. See Hancock, supra note 5, at 1117-21 (focusing on the rejection of Robinson by the states).

120. State v. Kirsch, 686 P.2d 446 (Or. Ct. App. 1984).

121. Id.

122. Id. at 447.

123. Id.

124. Id.

125. Kirsch, 686 P.2d at 447.

126. Id.

127. Id.

128. Id.

129. Id.

130. Kirsch, 686 P.2d at 447.

131. Id.

132. Id.

133. Id.

134. Id. at 448.

135. Kirsch, 686 P.2d at 448. The bundles of white powder were later determined to be methamphetamine. Id. at 447.

136. Id. at 448.

137. Id.

138. Id. at 447.

139. Id. at 448.

There is no "`automobile exception'" under the Oregon Constitution. That term . . . is merely a shorthand recognition that an automobile's mobility may produce exigent circumstances in particular situations. When there is no likelihood that the vehicle will be driven away . . . there is no exigency, and probable cause alone will not support a warrantless search.Id. (citing State v. Fondren, 591 P.2d 1374 (Or.), cert. denied, 444 U.S. 834 (1979); State v. Greene, 591 P.2d 1362 (Or. 1979)).

140. Kirsch, 686 P.2d at 448 (quoting State v. Caraher, 653 P.2d 942, 952 (Or. 1982) (citing State v. O'Neal, 444 P.2d 951 (Or. 1968); State v. Krogness, 388 P.2d 120 (Or. 1963); State v. Chinn, 373 P.2d 392 (Or. 1962))).

141. Id. (citing State v. Fesler, 685 P.2d 1014 (Or. Ct. App. 1984)).

142. Id.

143. Id.

144. Id. at 449.

145. Kirsch, 686 P.2d at 449.

146. Id.

147. Id.

148. State v. Stroud, 720 P.2d 436 (Wash. 1986).

149. Id. at 441.

150. Id. at 437.

151. Id.

152. Id.

153. Stroud, 720 P.2d at 437.

154. Id.

155. Id.

156. Id.

157. Id.

158. Stroud, 720 P.2d at 437.

159. Id.

160. Id. at 438.

161. Id.

162. Id.

163. Stroud, 720 P.2d at 441.

164. See id. at 439.

165. Id.

166. Id.

167. Id. at 441.

168. Stroud, 720 P.2d at 441.

169. Id.

170. Id. at 440.

171. Id. at 441.

172. State v. Brown, 588 N.E.2d 113 (Ohio), cert. denied, 506 U.S. 862 (1992).

173. Id. at 115.

174. Id. at 114.

175. Id. at 115-16.

176. Id.

177. Brown, 588 N.E.2d at 116.

178. Id. at 116.

179. Id. at 115-16.

180. Id. at 115.

181. Id. (footnote omitted).

182. State v. Gilberts, 497 N.W.2d 93 (N.D. 1993).

183. Id. at 97.

184. Id. at 94.

185. Id.

186. Id. at 95.

187. Gilberts, 497 N.W.2d at 95.

188. Id.

189. Id.

190. Id. at 94-95.

191. Id. at 96-97.

192. Gilberts, 497 N.W.2d at 96.

193. Id. at 97.

194. Id. at 99.

195. See supra notes 73-194 and accompanying text.

196. See supra notes 73-194 and accompanying text.

197. Chimel v. California, 395 U.S. 725 (1969); see also supra notes 73-194 and accompanying text.

198. See supra notes 73-194 and accompanying text.

199. State v. Pierce, 642 A.2d 947 (N.J. 1994).

200. Id. at 948. The vehicle, a 1986 Ford van, was clocked by the arresting officer at fifty-one miles per hour in a forty-mile-per-hour zone. Id.

201. Id.

202. Id.

203. Id. Communication with police headquarters by radio revealed to Rette that Grass's license had been suspended. Id.

204. Pierce, 642 A.2d at 948.

205. Id.

206. Id.

207. Id. 

208. Id.

209. Pierce, 642 A.2d at 948.

210. Id.

211. Id.

212. Id.

213. Id. at 949.

214. Pierce, 642 A.2d at 949. The charges against Bernardo were dismissed by the trial court. Id.

215. Id.

216. Id.

217. Id. (citing State v. Grass, 593 A.2d 379 (N.J. Super. Ct. App. Div. 1991)).

218. State v. Grass, 593 A.2d 379 (N.J. Super. Ct. App. Div. 1991).

219. Id. at 381 (citing United States v. Schecter, 717 F.2d 864, 867-68 (3d Cir. 1983)).

220. State v. Barksdale, 540 A.2d 901 (N.J. Super. Ct. App. Div. 1988).

221. The automobile in Barksdale was searched after it had been pushed seventy-five feet, and more than ten minutes after its occupants had been arrested. Id.

222. Grass, 593 A.2d at 381.

223. Id.

224. Id.

225. Id.

226. State v. Pierce, 608 A.2d 952 (N.J. Super. Ct. App. Div. 1992), rev'd, 642 A.2d 947 (N.J. 1994).

227. Pierce, 608 A.2d at 953. The three judges who heard Pierce's appeal were Judges Pressler, Skillman, and D'Annuzio. Id.

228. Id.

229. N.J. Stat. Ann. § 39:5-25 (West 1992).

230. Pierce, 608 A.2d at 953.

231. Id. at 954.

232. Id.

233. Id. at 954-55 (Pressler, J., dissenting). The constitutionality of arrests for motor vehicle violations is beyond the scope of this Comment.

234. Id. at 954 (Pressler, J., dissenting).

235. Pierce, 608 A.2d at 955 (Pressler, J., dissenting) (citing State v. Alston, 440 A.2d 1311 (N.J. 1981)).

236. Id. (Pressler, J., dissenting).

237. State v. Pierce, 642 A.2d 947, 963 (N.J. 1994).

238. Id. at 959.

239. Id.

240. Id. at 960.

241. Id. (citing State v. Hempele, 576 A.2d 793 (N.J. 1990); State v. Novembrino, 519 A.2d 820 (N.J. 1987); State v. Hunt, 450 A.2d 952 (N.J. 1982); State v. Alston, 440 A.2d 1311 (N.J. 1981); State v. Johnson, 346 A.2d 66 (N.J. 1975)); see also infra notes 308-12 and accompanying text.

242. Pierce, 642 A.2d at 960 (citing State v. Hunt, 450 A.2d 952 (N.J. 1982) (Handler, J., concurring)).

243. Id.

244. Id. at 960-63.

245. Id. at 960.

246. Id.

247. Pierce, 642 A.2d at 960.

248. Id. There are some exceptions to this. See id. at 960.

249. Id.

250. Id.

251. Id. at 961.

252. Pierce, 642 A.2d at 961 (citing 3 LaFave, supra note 20, § 7.1(c), at 21 (2d ed. 1987)).

253. Id. at 962.

254. Id.

255. Michigan v. Long, 463 U.S. 1032 (1983).

256. Pierce, 642 A.2d at 962 (citing Michigan v. Long, 463 U.S. 1032 (1983)).

257. Id. at 963 (quoting Chimel, 395 U.S. at 762-63).

258. Id.

259. Id. at 963-67 (Handler, J., concurring).

260. Id. at 964 (Handler, J., concurring).

261. Pierce, 642 A.2d at 967 (Handler, J., concurring).

262. Id. (Handler, J., concurring).

263. Id. at 964 (Handler, J., concurring).

264. Id. (Handler, J., concurring). Justice Handler bases this proposition on the Supreme Court's stated intention in Belton to remain faithful to Chimel: "`Our holding today does no more than determine the meaning of Chimel's principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.'" Id. (Handler, J., concurring) (quoting New York v. Belton, 453 U.S. 454, 460 n.3 (1981)).

265. Id. at 965 (Handler, J., concurring).

266. Pierce, 642 A.2d at 965 (Handler, J., concurring).

267. Id. (Handler, J., concurring).

268. Id. (Handler, J., concurring).

269. Id. (Handler, J., concurring).

270. State v. Welsh, 419 A.2d 1123 (N.J. 1980).

271. Id. at 1125.

272. Id. at 1130.

273. Pierce, 642 A.2d at 967 (Handler, J., concurring).

274. Abrahamson, supra note 69, at 1142 n.3 (footnote omitted) (citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980); Michigan v. Mosely, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting); Oregon v. Haas, 420 U.S. 714, 728 (1975) (Marshall, J., dissenting); Lego v. Twomey, 404 U.S. 477, 489 (1972) (White, J., joined by Burger, C.J., Stewart & Blackmun, J.J.); William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977); Sandra Day O'Connor, Our Judicial Federalism, 35 Case W. Res. L. Rev. 1, 5-6 (1984-1985); Sandra Day O'Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L. Rev. 801, 804 (1981)).

275. See generally Brennan, supra note 274.

276. See id. at 499.

277. See generally Stewart G. Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L. Rev. 707 (1983).

278. See supra notes 238-43 and accompanying text; see also text accompanying note 258.

279. See supra notes 11, 19.

280. State v. Johnson, 346 A.2d 66 (N.J. 1975).

281. Id. at 68 n.2.

282. Johnson, 346 A.2d at 67.

283. Jose L. Fernandez, Note, The New Jersey Supreme Court's Interpretation and Application of the State Constitution, 15 Rutgers L.J. 491, 493 (1984).

284. See generally Scott H. Bice, Anderson and the Adequate State Ground, 45 S. Cal. L. Rev. 750 (1972); Robin B. Johansen, Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297 (1977).

285. State v. Hunt, 450 A.2d 952 (N.J. 1982).

286. Id. at 965-67 (Handler, J., concurring). These criteria were adopted by the Supreme Court of New Jersey in State v. Williams, 459 A.2d 641, 650-51 (N.J. 1983).

287. Hunt, 450 A.2d at 965 (Handler, J., concurring). "A state constitution's language may itself provide a basis for reaching a result different from that which could be obtained under federal law." Id. (Handler, J., concurring).

288. Id. (Handler, J., concurring). "Whether or not the textual language of a given provision is different from that found in the federal Constitution, legislative history may reveal an intention that will support reading the provision independently of federal law." Id. (Handler, J., concurring).

289. Id. (Handler, J., concurring). "Previously established bodies of state law may also suggest distinctive state constitutional rights." Id. (Handler, J., concurring) (citing State v. Schmid, 423 A.2d 615, 626 (N.J. 1980)).

290. Id. (Handler, J., concurring). "Differences in structure between the federal and state constitutions might also provide a basis for rejecting the constraints of federal doctrine at the state level." Id. at 965-66 (Handler, J., concurring).

291. Id. at 966. (Handler, J., concurring). "A state constitution may also be employed to address matters of peculiar state interest or local concern. When particular questions are local in character and do not appear to require a uniform national policy, they are ripe for decision under state law." Id. (Handler, J., concurring) (citing National League of Cities v. Usery, 426 U.S. 833 (1976); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851)).

292. Hunt, 450 A.2d at 966 (Handler, J., concurring). "A state's history and traditions may also provide a basis for the independent application of its constitution." Id. (Handler, J., concurring).

293. Id. (Handler, J., concurring). "Distinctive attitudes of a state's citizenry may also furnish grounds to expand constitutional rights under state charters." Id. (Handler, J., concurring).

294. State v. Williams, 459 A.2d 641 (N.J. 1983).

295. Id. at 650-51. It has been suggested that while the first two factors may limit the Supreme Court of New Jersey's divergence from federal decisions, the public interest factor may increase the likelihood of divergence. Fernandez, Note, supra note 283, at 498 (citing Williams, 459 A.2d at 651). This is because "public interest encompasses judicial traditions, important institutional values, educating the public to the administration of justice, significant governmental values, important social values, and consistent practice." Id.

296. Pollock, supra note 277, at 708-09; see also Abrahamson, supra note 69, at 1172. There are three methods used by state courts to determine whether to diverge from Supreme Court precedent. Id. at 1169-72; Pollock, supra note 277, at 708-09. The "primacy" approach involves examining the issue under the state constitution first and only considering the Federal Constitution if the state action is upheld. Abrahamson, supra note 69, at 1170; Pollock, supra note 277, at 708; see also Abrahamson, supra note 69, at 1170. Under the "`federal first, then state'" method, states look first to the Federal Constitution and then to the state constitution. Abrahamson, supra note 69, at 1170-71 (footnote omitted). The "interstitial" or "supplemental" approach involves considering the Federal Constitution first, and if the state action is upheld, the issue is then analyzed under the state constitution. See Abrahamson, supra note 69, at 1171; Pollock, supra note 277, at 708-09.

297. Abrahamson, supra note 69, at 1171.

298. Fernandez, Note, supra note 283, at 498-99 (footnote omitted).

299. See State v. Pierce, 642 A.2d 947, 960-62 (N.J. 1994). Notably, the advocate of this approach--Justice Handler--did not join the majority in its rejection of Belton. See supra part III.D.

300. Pierce, 642 A.2d at 953-55.

301. Id. at 958.

302. See supra notes 287-93 and accompanying text. In reference to his factors proposed in State v. Hunt, 450 A.2d 952 (N.J. 1982), Justice Handler stated that this list is "illustrative, rather than exhaustive." Id. at 967. It follows that the additional factors enumerated in Williams are also illustrative. See supra text accompanying note 295.

303. Pierce, 642 A.2d at 960-61.

304. Id. at 960.

305. Id.

306. Id.

307. See infra notes 308-12 and accompanying text.

308. State v. Johnson, 346 A.2d 66 (N.J. 1975). Johnson involved the validity of the consent given by a defendant's fiancée to allow police to search personal belongings the defendant had left in her apartment. Id. at 66-67. Confusion arose in the lower courts over the legal standard to be applied in determining whether consent had been voluntarily given. Id. at 67. The Supreme Court of New Jersey held that in order to establish that consent was voluntary, the state must prove that the individual had knowledge of the right to refuse consent. Id. at 68. In its decision, the Supreme Court of New Jersey rejected Schneckloth v. Bustamonte, 412 U.S. 218 (1973), in which the United States Supreme Court held that the knowledge of the right to refuse consent was not required to establish that consent was voluntary. Johnson, 346 A.2d at 67-68.

309. State v. Alston, 440 A.2d 1311 (N.J. 1981). In Alston, police searched a vehicle and found a shotgun and two revolvers, and arrested the driver and its occupants on weapons charges. Id. at 1313-14. The defendants' motion to suppress the three weapons was granted by the trial court and the State appealed to the appellate division which reversed the trial court's order suppressing the shotgun, but affirmed the order suppressing the revolvers. Id. at 1314. On appeal to the Supreme Court of New Jersey, the State argued that under the United States Supreme Court's decisions in United States v. Salvucci, 448 U.S. 83 (1980) and Rakas v. Illinois, 439 U.S. 128 (1978), the defendants lacked standing to challenge the search of the vehicle, because none of the defendants owned the vehicle. Alston, 440 A.2d at 1313-15. The court was not persuaded by this argument, holding that a possessory interest in the property seized is sufficient to confer standing. Id. at 1319.

310. State v. Novembrino, 519 A.2d 820 (N.J. 1987). In Novembrino, police, pursuant to a warrant, searched the defendant's service station for contraband. Id. at 824. The defendant argued in his motion to suppress that the search was invalid because the affidavit used in support of the warrant did not establish probable cause. Id. The trial court and the appellate division agreed with the defendant. Id. at 824-25. The State argued, in its appeal to the Supreme Court of New Jersey, that under the good faith exception to the exclusionary rule established by United States v. Leon, 468 U.S. 897 (1984) (holding that evidence seized pursuant to a warrant issued without probable cause should not be suppressed if the police officer relied in good faith on the defective warrant), the evidence should be admitted. Novembrino, 519 A.2d at 850. The court dismissed this argument, stating that to adopt Leon would invite "erosion" of the probable cause requirement and expressed its reluctance to "experiment" with the rights guaranteed by article one, paragraph seven. Id. at 857.

311. State v. Hunt, 450 A.2d 952 (1982). In Hunt, the court held, contrary to the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1975), that individuals have a protected interest in the privacy of information contained within toll billing records. Id. at 956-57.

312. State v. Hempele, 576 A.2d 793 (N.J. 1990). In Hempele, police conducted warrantless searches and seizures of garbage bags which had been left for collection. Id. at 796-97. The court refused to follow the Supreme Court's decision in California v. Greenwood, 486 U.S. 35 (1988), under which similar warrantless searches of garbage were upheld, holding instead that police may seize curbside garbage but are required to obtain a warrant to search the garbage. Hempele, 576 A.2d at 814.

313. Pierce, 642 A.2d at 962 (citing State v. Boykins, 232 A.2d 141 (N.J. 1967)). "Surely not every traffic violation will justify a search of every part of the vehicle." Boykins, 232 A.2d at 143 (citing P.A. Agabin, Annotation, Lawfulness of Search of Motor Vehicle Following Arrest for Traffic Violation, 10 A.L.R.3d 314 (1966)). See State v. Scanlon, 202 A.2d 448, 451 (N.J. Super. Ct. App. Div. 1964) ("An arrest for . . . a violation of the motor vehicle laws, without more, is not sufficient cause for a search of the motor vehicle." (citations omitted)).

314. State v. Alston, 88 A.2d 1311 (N.J. 1981).

315. State v. Welsh, 419 A.2d 1123 (N.J. 1980). In Welsh, the court reaffirmed its adherence to the principles of Chimel by invalidating a search of a vehicle conducted after a defendant had been taken into custody, placed in a patrol car and was unable to gain access to a weapon or destructible evidence in the vehicle. Id.

316. Alston, 88 A.2d at 1323 n.15, cited in Pierce, 642 A.2d at 953.

317. Pierce, 642 A.2d at 953.

318. Id.

319. See supra notes 299-318 and accompanying text.

320. State v. Hempele, 576 A.2d 793 (N.J. 1990).

321. Id. at 800.

322. Id.

323. Pierce, 642 A.2d at 967.

324. See supra parts III.C-D.

325. Pierce, 642 A.2d at 963 (Handler, J., concurring).

326. See infra notes 327-34 and accompanying text.

327. Pierce, 642 A.2d at 967 (Handler, J., concurring).

328. Id. at 948.

329. Id.

330. See generally 3 LaFave, supra note 20, § 7.1(c). It appears that more than a two- or three-minute delay between the arrest and subsequent search would be required in order for the contemporaneity requirement to be violated. See United States v. Vasey, 834 F.2d 782, 787-88 (9th Cir. 1987) (holding that a Belton search conducted 30 to 45 minutes after an arrest was invalid).

331. See generally 3 LaFave, supra note 20, § 7.1(c) (noting that the Belton decision is unfortunately moot on this point).

332. See United States v. White, 871 F.2d 41, 41-45 (6th Cir. 1989); United States v. Karlin, 852 F.2d 968, 970-72 (7th Cir. 1988), cert. denied, 489 U.S. 1021 (1989); United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir. 1985); United States v. Collins, 668 F.2d 819, 821 (5th Cir. 1982).

333. See cases cited supra note 332.

334. See cases cited supra note 332.

335. Pierce, 642 A.2d at 964-65 (Handler, J., concurring).

336. Id.

337. See infra part IV.C.

338. See infra notes 343-47.

339. Pierce, 642 A.2d at 963.

340. See infra notes 355-68 and accompanying text.

341. Pierce, 642 A.2d at 964-65 (Handler, J., concurring).

342. Id. at 960-63.

343. See sources cited supra note 5 and accompanying text.

344. Chimel, 395 U.S. at 762-63.

345. Belton, 453 U.S. at 460.

346. Id.

347. See id.

348. Id. at 460; see also 3 LaFave, supra note 20, § 7.1(c); Alschuler, supra note 5, at 274.

349. See generally 3 LaFave, supra note 20, § 7.1(c).

350. See id.; Alschuler, supra note 5, at 274.

351. See Alschuler, supra note 5, at 274.

352. See supra