United States v. Weaver ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-50608
v.
 D.C. No.
CR-03-00077-RJT
HOLLIE LYNN WEAVER, a/k/a Hollie
Lynn Brawner (Maiden Name), OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, District Judge, Presiding
Argued and Submitted
December 9, 2005—Pasadena, California
Filed January 10, 2006
Before: Harry Pregerson, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Pregerson
205
206 UNITED STATES v. WEAVER
COUNSEL
Fred A. Rowley, Jr., Assistant United States Attorney,
(argued) and Jaime Guerrero, Assistant United States Attor-
UNITED STATES v. WEAVER 207
ney (briefed), Los Angeles, California, for the plain-
tiff/appellee.
Elizabeth A. Newman, Deputy Federal Public Defender, Los
Angeles, California, for the defendant/appellant.
OPINION
PREGERSON, Circuit Judge:
Hollie Lynn Weaver appeals the district court’s denial of
her motion to suppress evidence related to her conviction for
embezzlement of mail matter by a postal employee in viola-
tion of 18 U.S.C. § 1709. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291. Because we conclude
that the warrantless search of Weaver’s vehicle was a contem-
poraneous incident of the custodial arrest of one of Weaver’s
two passengers, we affirm.
I. Factual and Procedural Background
On May 23, 2001, Sergeant Hignight (“Hignight”) of the
Riverside County Sheriff’s Department was driving an
unmarked sheriff’s vehicle when he recognized Adam Herron
(“Herron”) in the passenger seat of a vehicle that had pulled
up next to Hignight. The car was driven by an unknown
female later identified as Hollie Lynn Weaver (“Weaver”).
Herron’s son Tyler was in the back seat. Hignight recognized
Herron and knew that there were outstanding warrants for
Herron’s arrest. Hignight also knew that Herron was under
investigation concerning a box of stolen checks. Hignight
summoned another officer in a marked patrol car and asked
him to make a traffic stop of the subject vehicle.
After making the traffic stop, Hignight and the other officer
ordered Herron from Weaver’s car, arrested him, handcuffed
208 UNITED STATES v. WEAVER
him, and placed him in the back seat of the marked patrol car.
Weaver and Tyler exited the vehicle at Hignight’s direction
and sat on the curb. Weaver refused to consent to a search of
her car. Hignight informed Weaver that he would search the
car over her protest, but said that he had to await the arrival
of a third officer that he had called to the scene.
Hignight testified that it was his “typical procedure” to con-
duct a vehicle search with three officers on the scene: one to
monitor the suspects, one to conduct the search, and one to
observe the officer conducting the search. Ten to fifteen min-
utes elapsed before the third officer arrived, at which time
Hignight searched the car. The parties agree that virtually
nothing happened while waiting for the third officer.
On searching the vehicle, Hignight found forty-six blank
personal checks in a black organizer on the floor behind the
driver’s seat. The checks had been reported stolen three days
before by a postal customer in Rancho Mirage, California.
Weaver, a part-time letter carrier, had been assigned to the
postal delivery route in question around the time that the
checks were stolen. Subsequent investigation revealed that
Herron had been filmed at a bank cashing a forged check.
Forensic analysis revealed that Weaver had forged thirty-five
checks, including the check cashed by Herron, totaling
$2,582.97.
After the district court denied Weaver’s motion to suppress
evidence, she entered a conditional guilty plea on June 10,
2004 to embezzlement of mail matter by a postal service
employee in violation of 18 U.S.C. § 1709. The district court
sentenced Weaver to three years of probation and ordered her
to pay restitution in the amount of $2,582.97. Weaver
reserved her right to appeal the denial of her suppression
motion. Weaver’s appeal of that motion is before us today.
II. Discussion
[1] “[W]hen a policeman has made a lawful custodial arrest
of the occupant of an automobile, he may, as a contemporane-
UNITED STATES v. WEAVER 209
ous incident of that arrest, search the passenger compartment
of that automobile.” New York v. Belton, 453 U.S. 454, 460
(1981). Applying the Belton rule, we have held that a warrant-
less automobile search will be valid if it is “roughly contem-
poraneous with the arrest.” See United States v. Smith, 389
F.3d 944, 951 (9th Cir. 2004) (quoting United States v.
McLaughlin, 170 F.3d 889, 892 (9th Cir. 1999)).
[2] Although contemporaneity is important, we have made
clear that it is not the sole inquiry. “The relevant distinction
turns not upon the moment of arrest versus the moment of the
search but upon whether the arrest and search are so separated
in time or by intervening acts that the latter cannot be said to
have been incident to the former.” McLaughlin, 170 F.3d at
893 (quoting United States v. Abdul-Saboor, 85 F.3d 664, 668
(D.C. Cir. 1996)). Indeed, “[t]here is no fixed outer limit for
the number of minutes that may pass between an arrest and
a valid, warrantless search that is a contemporaneous incident
of the arrest.” McLaughlin, 170 F.3d at 892. See, e.g., id. at
891-92 (holding that search conducted five minutes after
arrest was contemporaneous to the arrest and that officer’s
completion of vehicle impound paperwork during interval
was not intervening act); United States v. Ramos-Oseguera,
120 F.3d 1028, 1036 (9th Cir. 1997), overruled on other
grounds by Appredi v. New Jersey, 530 U.S. 466, 489-90
(2000) (holding that where time elapsed between arrest and
search was unclear, act of towing vehicle to police station
before conducting search was intervening act). But see United
States v. Vasey, 834 F.2d 782, 787-88 (9th Cir. 1987) (holding
that search conducted thirty to forty-five minutes after arrest
was not contemporaneous to arrest and that officer’s instiga-
tion of various conversations with handcuffed arrestee were
intervening acts).
It is undisputed in the instant matter that Hignight made a
lawful custodial arrest of Weaver’s passenger. The inquiry
thus turns to whether the ensuing search of Weaver’s automo-
bile was roughly contemporaneous with the arrest, and not so
210 UNITED STATES v. WEAVER
separated in time or by intervening acts that the search was
not incident to the arrest. See McLaughlin, 170 F.3d at 893.
Hignight testified that he delayed the search of the automo-
bile for ten to fifteen minutes to summon a third officer to the
scene to conduct a safe search. During that interval, Hignight
testified that he “was standing on the curb just waiting for the
additional unit.” As Weaver indicated in her opening brief,
“[t]ime froze” during the interval. Weaver does not suggest
that any particular intervening act occurred between the arrest
and the search.
[3] We must conclude that Hignight’s search of Weaver’s
automobile was conducted as a contemporaneous incident to
the arrest of Weaver’s passenger. Unlike Ramos-Oseguera
where police towed the arrestee’s car before searching it, or
Vasey where police repeatedly questioned the arrestee before
conducting the search, no intervening act occurred in this
case. Moreover, the ten to fifteen-minute delay here is more
like the five minute delay in McLaughlin than the thirty to
forty-five minute delay in Vasey.1 Faithfully applying our Bel-
ton jurisprudence, we must hold that the search of Weaver’s
car was a contemporaneous incident of Herron’s arrest.
Weaver also argues that the Belton rule is flawed and
should be re-examined. We must leave that challenge to the
Supreme Court. See Agostini v. Felton, 521 U.S. 203, 237
(1997) (“If a precedent of this Court has direct application in
a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative
of overruling its own decisions.” (internal citation omitted)).
We agree, however, that the Belton rule is broader than its
stated rationale. Here, where the arrestee was handcuffed and
secured in a patrol car before police conducted the search, the
1
We reiterate, however, that time alone is never dispositive of the con-
temporaneity inquiry under Belton. See McLaughlin, 170 F.3d at 892.
UNITED STATES v. WEAVER 211
rational underpinnings of Belton—officer safety and preserva-
tion of evidence—are not implicated. We are hardly the first
to make this observation.2 We respectfully suggest that the
Supreme Court may wish to re-examine this issue.
[4] Yet, we are bound by Belton. See Thornton v. United
States, 541 U.S. 615, 618 (2004) (finding Belton controlling
where arrestee was handcuffed and placed in patrol car before
officer searched arrestee’s vehicle). Accordingly, the district
court’s denial of Weaver’s motion to suppress evidence is
AFFIRMED.
2
See Thornton v. United States, 541 U.S. 615, 624 (2004) (O’Connor,
J., concurring) (noting that “lower court decisions seem now to treat the
ability to search a vehicle incident to the arrest of a recent occupant as a
police entitlement rather than as an exception justified by the twin ratio-
nales of Chimel . . . [This is] a direct consequence of Belton’s shaky foun-
dation.”); Thornton, 541 U.S. at 625-26 (Scalia, J., concurring) (arguing
that the majority’s “effort to apply [the Belton] doctrine to this search
stretches it beyond its breaking point” because the handcuffed arrestee
could only pose a threat if he “possessed the skill of Houdini and the
strength of Hercules” (citation omitted)); Belton, 453 U.S. at 463-64
(Brennan, J., dissenting) (fearing that the Belton majority “may signal a
wholesale retreat from our carefully developed search-incident-to-arrest
analysis” by “formulating an arbitrary ‘bright-line’ rule . . . that fails to
reflect Chimel’s underlying policy justifications”); McLaughlin, 170 F.3d
at 894 (Trott, J., concurring) (noting that “in our search for clarity, we
have now abandoned our constitutional moorings and floated to a place
where the law approves of purely exploratory searches of vehicles”).