State v. Hanna , 173 Ariz. 30 ( 1992 )

OPINION

VOSS, Presiding Judge.

Just a few minutes before 3:00 a.m. on May 8, 1990, Officer Donald Peelman (“Peelman”) was patrolling in his marked police car near 35th Avenue and Indian School Road in Phoenix, Arizona. This was the area he normally patrolled. He was headed southbound on 35th Avenue when he saw a vehicle driven by David Hanna. Peelman discovered the registration sticker on the license plate of Hanna’s vehicle was for April and had therefore expired eight days before. Peelman proceeded to pull appellant over into a well-lighted parking lot. Peelman stopped his patrol car about twenty-five feet behind appellant’s parked vehicle. Appellant stepped out of his car and, upon request, presented Peelman with his driver’s license, registration and proof of insurance. Peelman returned with appellant’s driver’s license to his patrol car to run a routine check on appellant. This check revealed that appellant’s license had been suspended. Peelman arrested appellant for driving on a suspended license, handcuffed him and put him in the back of the patrol car.

Brian Murray (“Murray”), an officer called by Peelman to assist him, then stood next to the patrol car door while Peelman prepared to search appellant’s vehicle. Before this search began, another officer, David Lucero (“Lucero”), arrived. Lucero and Peelman searched appellant’s automobile, Peelman from the passenger’s side and Lucero from the driver’s side. Lucero found nothing. When Peelman got to the glove compartment, he found it locked. Peelman went back to the patrol car, where appellant sat handcuffed, and retrieved the key to the glove compartment from a bag he had put it in when appellant was arrested. Peelman proceeded to unlock the glove compartment. In the glove compartment Peelman found a small red canvas bag. Peelman opened this bag, which was closed by a velcro fastener, and in it found various drug paraphernalia and a black magnetic box. Peelman opened the black box and found three plastic bags which turned out to contain methamphetamine, a dangerous drug. Peelman then returned to where appellant sat handcuffed in the patrol car, and informed him that he was under arrest for possession of a dangerous drug. None of the officers ever attempted to obtain a search warrant.

Before trial appellant made a motion to suppress the evidence seized from his glove compartment, arguing that the search which produced the evidence violated appellant’s right under the United States and Arizona Constitutions.¹ After an evidentiary hearing on this motion, the court found that the search was “a valid one incidental to a lawful arrest____” A motion for reconsideration of the denial of appellant’s motion to suppress was made during trial. Again the court denied appellant’s attempt to suppress the evidence. Appellant was convicted by a jury. He filed this timely appeal arguing that the trial court erred in not suppressing the evidence seized from his locked glove compartment. We affirm the trial court.

The fourth amendment to the United States Constitution requires that all searches be reasonable. Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). The Arizona Constitution requires the same. Ariz. Const. art. 2, § 8. The general rule is that a search must be made pursuant to a search warrant to be considered reasonable. However, several well-defined exceptions to the general warrant requirement exist. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); State v. Sardo, 112 Ariz. 509, 513, 543 P.2d 1138, 1142 (1975). One of these exceptions allows the warrantless search of the passenger compartment of an automobile incident to the arrest of one of the occupants of the automobile. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The trial court, citing Belton, found that the warrantless search fell within the “incident to a lawful arrest” exception. For this reason, appellant’s motion to exclude evidence of the drugs found in his locked glove compartment was denied.

Search Incident to Arrest

A police officer without a search warrant may conduct a search of an automobile incident to arresting an occupant of that automobile. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768; State v. Curiel, 130 Ariz. 176, 634 P.2d 988 (App.1981). The disputed issue in this case is whether the scope of that search may extend to a locked glove compartment in that car.

The purpose of allowing a warrantless search under this exception is to ensure the safety of the officer and protect evidence from being intentionally destroyed. This purpose has been broadly read. In Belton, the court pointed out that searches under this exception are “valid because of the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” (Citations omitted.) 453 U.S. at 457, 101 S.Ct. at 2862. The Belton court then proceeded to observe that “the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will the containers in it be within his reach.” Id. at 460, 101 S.Ct. at 2864. In a footnote to the above sentence, the court defined container to include a “closed or open glove compartment.” Id. at 460 n. 4, 101 S.Ct. at 2864 n. 4.

This language has been interpreted by several federal courts to uphold warrant-less searches incident to arrest where the possibility of an arrestee’s grabbing a weapon or evidence were equally as remote as appellant’s chances here. United States v. Hatfield, 815 F.2d 1068, 1071 (6th Cir. 1987) (arrestee ordered to stand against wall and guarded by officer while other officer searched vehicle); Davis v. Robbs, 794 F.2d 1129, 1130-31 (6th Cir.1986) (arrestee handcuffed and placed in squad car prior to seizure of rifle in house), cert. denied, 479 U.S. 992, 107 S.Ct. 592, 93 L.Ed.2d 593 (1986); United States v. Cotton, 751 F.2d 1146, 1147-48 (10th Cir.1985) (arrestees handcuffed and apparently guarded by officer while other officer searched vehicle); United States v. Silva, 745 F.2d 840, 847 (4th Cir.1984) (arrestees handcuffed and guarded prior to search of room for weapons), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404, 84 L.Ed.2d 791 (1985); United States v. Palumbo, 735 F.2d 1095, 1096-97 (8th Cir.1984) (arrestee possibly handcuffed and definitely surrounded by several officers prior to search of room), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984); United States v. Roper, 681 F.2d 1354, 1357-59 (11th Cir.1982) (arrestee handcuffed and led into room by officer prior to search), cert. denied, 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983); United States v. Fleming, 677 F.2d 602, 606-07 (7th Cir. 1982) (arrestee handcuffed and removed from immediately area prior to search); Virginia Islands v. Rasool, 657 F.2d 582, 588-89 (3rd Cir.1981) (arrestee handcuffed and removed from vehicle prior to search).

Because we find that Belton and its progeny apply to this , case, we need not address the claim that it was also a valid inventory search. Also, as we believe any “extension of ... [the state] Constitution ... is a matter left for the Arizona Supreme Court”, we resist the temptation. State v. Calabrese, 157 Ariz. 189, 191, 755 P.2d 1177, 1179 (App.1988). We affirm.

EUBANK, J., concurs.

1 . "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.” United States Constitution amend. IV.

"No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Arizona Constitution, art. 2, § 8.