imported post
Fry was driving a typical sedan back in the days before one key does all and seat belt laws. During the time period of Fry (1986) cars often had two keys one for the ignition and one for the glove box and trunk. Even with the change of automobile styles and technology the Fry case is still case law. For a mor modern example read State v. Fisher. Fisher was found guilty of carrying a concealed weapon because his firearm was in a locked console between the bucket seats of his SUV. I'm not defending these cases nor do I agree with them. I'm just saying that's the way it is. Under the shadow of those two cases if one was to go into court and declare that a firearm was out of reach because it was locked in a glove compartment and was out of reach because I had to unbuckle my seat belt or shut the vehicle's ignition off before I could open the glove box, my opinion is that that argument and three bucks might buy you a cup of coffee at Starbuck's.
State v. Fry
The court affirmed Fry's conviction for carrying a concealed weapon, which the police discovered in a warrantless search of the locked glove compartment of his automobile, incident to his custodial arrest. Fry argued that the search did not qualify as a search incident to arrest because he was not in the car when the officers searched it. 131 Wis.2d at 159, 388 N.W.2d at 568. The court adopted what it considered the Belton rule:
A police officer may assume under Belton that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest but the defendant is not physically in the vehicle. We cannot say as a matter of fact in all cases that a defendant never could regain access to the interior of an automobile after initially leaving the vehicle.
Id . at 174, 388 N.W.2d at 574.
The Fry court rejected a case-by-case analysis of warrantless searches of automobiles which would depend on whether the police reasonably believed that an arrestee could escape from their control and regain access to an automobile. Id . at 175, 388 N.W.2d at 574. The court said that that alternative was unworkable because of the unpredictability of such escapes. Id . The court preferred Belton's "bright-line" rule because it relieves the officer of making ad hoc at-the-scene decisions to search or not to search.
However, Fry leaves uncertain how much of Belton's bright-line rule the court intended to adopt. The court said:
The search is based on a need to protect evidence or the police and includes the area in the defendant's reach or presence. The exigency is the defendant's potential for regaining access to the area of the car.
131 Wis.2d at 181, 388 N.W.2d at 577.
This statement does not describe Belton's bright-line rule. The Belton court specifically rejected the case-by-case analysis required by Fry's reliance upon defendant's potential for regaining access to his or her vehicle. See 453 U.S. at 459. The Belton bright-line rule is simple and easily applied:
[W]e hold 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 (footnote omitted).
Whether Belton's bright-line rule will survive is another matter which need not concern us.
Is This Case Different?
On their facts, neither Belton nor Fry involved a fact situation such as that presented here; neither Belton nor Fry would have had to possess Houdini-like powers to regain access to his automobile. See United States v. Vasey , 834 F.2d 782, 787 (9th Cir. 1971). Here, however, Sotelo was handcuffed, seatbelted and locked in the squad car's "cage." Two armed officers were present. Clearly, Chimel's "grabbable area" rule would not justify the warrantless search which the officer made in this case.
However, in accord with its disavowal of an intent to change Chimel's rule, the Belton Court said: "Our holding today does no more than determine the meaning of Chimel's principles in this particular and problematic context . It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests." 453 U.S. at 460 n.3 (emphasis added). Belton's "problematic context" is the warrantless search of an automobile. Warrantless searches of premises remain subject to the Chimel rule. LaFave concludes that the Belton Court erred in not considering the automobile exception. Plainly, the Court's bright-line rule may have to be considered in future automobile exception cases.
The only low-voltage areas of Belton's bright-line rule concern when a search is contemporaneous with the occupant's arrest and what constitutes the passenger compartment of an automobile. Neither of these concerns is present here. Other problematic areas--whether there was a lawful custodial arrest and the search of containers--must be explored by already established rules which are not so bright. However, Sotelo does not ask us to illumine these dark corners.
While certain language of Fry does not track Belton's rule, because the Wisconsin court follows the United States Supreme Court's Fourth Amendment decisional law, we conclude that precedential decisional law requires that we hold that the trial court erred in granting Sotelo's motion to suppress.
By the Court .–Order reversed.
I should point out that the snippet above is not from State v. Fry itself. It is from the case of State v. Kimberly Soleto No. 95-1681-CR.
