VT: Rejects Belton and holds that a backpack of a defendant handcuffed in the police car cannot be subjected to a search incident

Vermont rejects Belton and holds that a defendant who had been arrested and was handcuffed in the backseat of a police car was no longer capable of reaching his backpack in his car, so it could not be subjected to a search incident. The automobile exception was also rejected. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38 (2007):

Neither requirement was satisfied here. Despite the officer’s suspicion that the car might have been stolen, he did not arrest defendant on that basis and identified no ground, much less probable cause, to believe that proof of ownership might be discovered behind or underneath the driver’s seat, where the parking meter and glass jar containing marijuana were found. Even if it were assumed, however-as the dissent urges-that the inadequate proof of ownership established probable cause to believe that the car was stolen, the circumstances did not establish that element of urgency essential to the execution of a warrantless search. The officer readily acknowledged that he had no concerns about the possibility of evidence inside the vehicle being removed or destroyed. Indeed, prior to the search, the officers had not observed any evidence of a crime in the vehicle, let alone evidence that might conceivably be lost or destroyed.

Furthermore, defendant was under arrest, the car was not on a public highway but safely parked in a commercial lot, and the police had determined that it would be grounded, i.e, locked and kept there until they determined its ownership. Hence, there was no exigency compelling an immediate search rather than a subsequent warrant application. In Trudeau, the principal case on which the dissent relies, the police had observed evidence in plain view within the vehicle that related directly to the offense for which defendant was arrested. Indeed, we analyzed Trudeau as a plain-view case, not an automobile-exception case, emphasizing that the officers violated no privacy rights of the defendant when they observed an open beer can in plain view on the floor of the defendant’s car before arresting him for DUI. 165 Vt. at 358, 683 A.2d at 727-28. Here, in contrast, the officers had no indication that defendant’s vehicle contained any contraband or evidence of a crime. Furthermore, the record in Trudeau revealed the presence of two additional passengers in the vehicle who also appeared to be intoxicated and who had remained near the vehicle during the police encounter, although they had not been arrested. This was sufficient to suggest that they might have had not only the opportunity, but the incentive, to seek access to the vehicle to remove the evidence the police had observed therein, and thus established the exigency necessary to forgo a warrant. Trudeau, 165 Vt. at 357, 361, 683 A.2d at 726, 729. Neither circumstance was present here. The police had not observed any evidence of a crime in the vehicle, and there was nothing to indicate that the passenger, who had been questioned by the police and had departed, would have any reason to return to the vehicle or ability to remove its contents. Accordingly, we are not persuaded that the automobile exception provides a viable basis to uphold the trial court decision.

Knife seen on car console during a traffic stop justified a frisk of the car. United States v. Robinson, 222 Fed. Appx. 534 (8th Cir. 2007)* (unpublished).

District court’s finding of voluntary consent was not clearly erroneous. United States v. Lyons, 220 Fed. Appx. 917 (11th Cir. 2007)* (unpublished).

Fact dispute on whether probable cause existed for arrest precluded summary judgment for defendants. Freeman v. Taghon, 2007 U.S. Dist. LEXIS 18537 (N.D. Ill. March 14, 2007).*