Appeal by the State from Griffin, Judge. Order entered 6 March 1981 in Superior Court, Watauga County. Heard in the Court of Appeals 5 January 1982.
Webb, Judge. Judges Vaughn and Hill concur.
Pursuant to New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), decided after this case was determined in superior court, we reverse. In Belton, the defendant and three companions were stopped by a trooper for speeding. The trooper removed all four persons from the vehicle when he smelled a distinct odor of marijuana emanating from the vehicle. After the defendant and the other occupants had been removed from the vehicle, the trooper arrested them for possession of marijuana.
The trooper then searched the passenger area of the vehicle. He unzipped a pocket of a jacket which had been in the passenger area and found cocaine and the defendant's identification in the pocket. The United States Supreme Court held this evidence should not have been excluded under the Fourth Amendment to the United States Constitution. After some discussion as to the need for a workable and understandable rule in regard to searches incident to arrest, the Court said:
"Accordingly, we 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.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment."
We believe the instant case is governed by Belton.
The defendant argues that Belton does not apply. He says there was one officer and four suspects in Belton while there were three officers and one suspect in this case. He contends this gave the officer in Belton more reason to search. He also argues that in this case, unlike Belton, the officers had completed the arrest before the search began. Finally, the defendant argues that Mr. Kaiser testified that the search was made to find contraband and this makes the rule of Belton inapplicable because the State has shown by its own evidence that the search was not incident to the arrest.
As we read Belton, none of the distinctions which the defendant makes are helpful to him. We believe that under Belton when an officer lawfully arrests a person who is in a motor vehicle, the officer has an absolute right to search the passenger area and any container found in the passenger area of the vehicle. The thrust of Belton is to establish a workable rule which does not require interpretation by a court at a later time as to the scope of the search. We believe this rule allows the search conducted by Mr. Kaiser in the instant case. See State v. Cooper, 304 N.C. 701, 286 S.E.2d 102 (1982). We hold it was error to exclude from evidence the items found as a result of the search.