1st Circuit Rules Traffic Stop and Search Were Proper

Recently, the 1st Circuit Court of Appeals upheld the reasonableness of a motor vehicle search incident to an arrest in UNITED STATES v. McGREGOR No. 09–2650 (2011). The court goes into New York v. Belton, 453 U.S. 454 (1981) for quite some length while explaining why the search was valid.

In deciding, the court stated “In something of an about-face, McGregor no longer questions the legality of the traffic stop. Instead, he is complaining that the officers lacked reasonable suspicion needed to justify a limited protective search of the car—a search that he insists was too long and too intrusive to boot. We see things quite differently, however.

McGregor contends that the car search was too long—though he does not come straight out and say that the encounter had matured into a de facto arrest before there was probable cause. Relying on the police dispatch log, McGregor notes that the officers stopped the Honda at 1:47 a.m. and arrested the men at 2:46 a.m., or 2:45 a.m., according to the booking sheet. And during that time (the argument continues) the police searched the auto for weapons—a period that exceeded what Long and its heirs allow. McGregor’s big problem is that the judge made no findings concerning how long the search took—which means that we must read the record in the light most hospitable to the judge’s suppression ruling, drawing all reasonable inferences in the ruling’s favor. See, e.g., Owens, 167 F.3d at 743. With this in mind, we repeat that Smigielski testified that it only took five minutes for the officers to find the loaded gun after they had moved the men to the curb. And neither the dispatch log nor the booking sheet changed that reality, he said. Again, there are no fixed time limits in this context. See, e.g., United States v. McCarthy, 77 F.3d 522, 531 (1st Cir.1996). Rather, the police must conscientiously pursue an investigative course likely to confirm or refute their suspicions quickly, see, e.g., Sharpe, 470 U.S. at 686, and we think that the officers’ five-minute search—during which they acted diligently and swiftly—clearly falls within that category. See generally Owens, 167 F.3d at 749 (approving a 55–minute investigative stop); McCarthy, 77 F.3d at 529–31 (approving a 75–minute investigative stop).3


McGregor challenges the judge’s ruling that what the officers did before they opened the access panel—picking up the alarm magnet, tapping the car’s undercarriage, fiddling with the cup holder, removing the CDs from the center console—was permissible under Long. Their actions were too intrusive to squeeze within Long’s narrow confines, he says. He also attacks the judge’s conclusion that what the officers learned during the Long search gave them probable cause to open the panel. We, however, think that Long covers the whole gamut of police activities here, so we skip the probable-cause analysis. See, e.g., Soule, 908 F.2d at 1036 n. 7 (emphasizing that we may affirm a suppression ruling for any reason appearing in the record).4 We explain.

McGregor is right that the only lawful purpose of a Long search is to protect officers from the danger that the persons they have stopped will grab for weapons. See 463 U.S. at 1047–48. And he is also right that the search must be no more invasive than necessary to serve that safety function. Id. at 1052 n. 16. A Long search is a limited search. Id. But it is limited in this sense: officers with reasonable grounds for suspecting that the detainees are dangerous must confine their weapons search to accessible areas of the vehicle. Id. at 1049. The question here is whether the console hide was a searchable part of the passenger compartment under Long and its successors. Our answer is yes, for these reasons.

The Long Court set the parameters for a protective search in part by copying the search-incident-to-arrest standard in New York v. Belton, 453 U.S. 454 (1981). See Long, 463 U.S. at 1048–49. Belton held that police may search an auto’s passenger compartment incident to an occupant’s lawful arrest both to protect officer safety and to preserve evidence. See 453 U.S. at 460. Long’s rationale is limited to officer safety. But if officers restrict their searches to areas “that may contain a weapon and to which the motorist may have access,” the physical borders of the passenger compartment covered by Belton and Long are the same.5 United States v. Arnold, 388 F.3d 237, 240 (7th Cir.2004).

Applying these principles, another circuit court has held that a secret “trap” built into an auto’s backseat is a searchable part of the passenger compartment under Belton. See United States v. Veras, 51 F.3d 1365, 1372 (7th Cir.1995). And others have held that locked glove compartments, see, e.g., United States v. Palmer, 360 F.3d 1243, 1246–48 (10th Cir.2004), and center consoles, see, e.g., United States v. Holmes, 376 F.3d 270, 280–81 (4th Cir.2004), including one that had been tampered with and that officers had to pull on to open, see United States v. Boyett, 295 Fed. Appx. 781, 783, 785 (6th Cir.2008), are searchable parts of a passenger compartment under Long too.6 Easy accessibility is the concern that animates each case. See, e.g., Arnold, 388 F.3d at 240.

Getting back to McGregor, the officers had the requisite reasonable suspicion that the men were armed, as we have already explained at some length. They also took sensible steps to secure their safety. Each investigatory act—grabbing the magnet, knocking at the car’s undercarriage, poking at the cup holder, and taking the CDs from the center console—logically led to the next, was done quickly, and was tied tightly to the police’s reasonable suspicion that the Honda had a hide. See generally Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir.2004) (emphasizing that “officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures”).
A few more words about the magnet-grabbing and the undercarriage-tapping: McGregor faults the judge for finding that O’Brien knew that the Lego-size object on the dashboard was an alarm magnet before Smigielski snatched it up—which, McGregor quickly adds, Smigielski had no right to do. That argument depends on too myopic a view of O’Brien’s suppression-hearing testimony. Sure, O’Brien did testify on direct that he said, “Smig, what’s that?” before Smigielski reached for the magnet. But he clarified on cross that in his mind he knew all along that it was an alarm magnet that could possibly help open a gun-holding hide, and the judge could certainly credit that testimony. Also, if officers can take keys from a car ignition or seat to unlock a glove compartment, see, e.g., Palmer, 360 F.3d at 1246–48; United States v. Brown, 913 F.2d 570, 571–72 (8th Cir.1990), then we see no reason why Smigielski could not hand O’Brien the hide-opening magnet. And, despite what McGregor says, neither the viewing of nor the tapping on the undercarriage gives us reason to reverse. Compare New York v. Class, 475 U.S. 106, 114 (1986) (explaining that “[t]he exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search’ ”), and Kyllo v.. United States, 533 U.S. 27, 32 (2001) (noting that a naked-eye observation “is no ‘search’ at all”), with Cardwell v. Lewis, 417 U.S. 583, 588–89 (1974) (plurality opinion) (concluding that the police’s scraping paint off a car’s exterior was not a search).

That O’Brien reached into the console and popped open the access panel did not exceed the outer limits of what the law allows, either. Just like if the gun had been in a backseat trap or in a locked glove compartment, McGregor and his buddies could have grabbed the weapon from the console hide in a flash had they gotten back into the car-the uncontradicted testimony at the hearing discloses that one could open the hide electronically in a matter of seconds. See Arnold, 388 F.3d at 241 (providing a useful analytic model for resolving a similar case). Given the specific facts here, there is no reason to treat this easily-accessible passenger-compartment area differently from any other. See id. at 240–41.
For the reasons bared above, we uphold the district judge’s order denying McGregor’s motion to suppress.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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