MA: Search incident 30+ minutes after arrest was not contemporaneous under Chimel and Belton

Massachusetts holds that the comtemporaniety requirement of the search incident doctrine requires that the search occur reasonably close to the time of the arrest. Where the search of a bag on the defendant was more than 30 minutes after the arrest, it was not contemporaneous. “The case law interpreting the Fourth Amendment demonstrates, however, that the contemporaneity requirement continues to have meaning. Accordingly, this case, where the search did not occur at the time or at the place of arrest, has surely crossed that line.” Commonwealth v. Pierre, 72 Mass. App. Ct. 580 (2008):

The bounds of the temporal requirement of contemporaneity of the search with the arrest were tested in United States v. Chadwick, supra. There, at a Federal detention facility an hour and one half after the defendants’ arrests, Federal agents searched a footlocker that had been found in the trunk of an automobile near the defendants when they were arrested. Id. at 4-5. Although the government argued that the search was “reasonable because the footlocker was seized contemporaneously with respondents’ arrests and was searched as soon thereafter as was practicable,” the Supreme Court invalidated the search because of the time delay. Id. at 14, 15.

This principle in Chadwick has survived related rulings in New York v. Belton, supra, and California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). In Belton, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460. This standard notably still requires contemporaneity of the search; it simply loosens the spatial restrictions announced in Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (area within arrestee’s “immediate control”), to include as a per se rule the passenger compartment of an automobile in which a person is arrested. See Belton, supra. The Court in Belton explicitly distinguished Chadwick, noting that Chadwick involved a time delay between the arrest and the search, a factual circumstance not present in Belton. Id. at 461-462. Thus, although Belton relaxed the spatial requirement in circumstances where an arrest takes place in an automobile, it did not relax the temporal requirement of a lawful search incident to arrest.

Acevedo, although overruling Chadwick in part, affected only the automobile exception to the warrant requirement and the legality of searches of closed containers therein. See Acevedo, supra at 571. It did not, therefore, alter the central tenet of Chadwick regarding search incident to arrest. See United States v. $639,558 U.S. Currency, 293 U.S. App. D.C. 384, 955 F.2d 712, 717-718 (D.C. Cir. 1992).

Nor has the contemporaneity requirement been diminished by the Supreme Court’s recent decision in Thornton v. United States, 541 U.S. 615, 623-624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004), where the search of the passenger compartment of an automobile was upheld even though the arrestee was a “recent occupant” of the vehicle rather than actually occupying the vehicle when arrested. This extension of Belton once again dealt only with the spatial aspect of a search incident to a lawful arrest; that is, only the distance between the arrestee and the search was at issue. See Thornton, supra at 620-621. That the search took place contemporaneously with the arrest was not in dispute. See id. at 618.

Indeed, Massachusetts courts, interpreting Federal law, still afford considerable significance to the requirement of contemporaneity. In Commonwealth v. Alvarado, 420 Mass. at 546-547, the defendant was arrested in his car, taken to the station for booking, and the car was towed to the same station where it was searched. Relying on New York v. Belton, supra, and its preservation of the contemporaneity requirement, the Supreme Judicial Court found the two-hour delay to be fatal to the Commonwealth’s claim that the search was incident to arrest. Id. at 554.