United States v. Clifton Myers A/K/A Samuel Jenkins, Clifton Myers

McKEE, Before BARRY and officer, Azzarano entered the first floor ALARCON,* Judges. Circuit Mtchen anyone area but did not see there. However, he heard raised voices and a lot THE OPINION OF COURT upstairs. of movement Azzarano drew his McKEE, Judge. Circuit gun, again announced that he was a are asked to review the district We proceeded officer. He then to the suppress court’s denial of a motion to second floor where he Lydia encountered physical evidence the defendant filed top Bennett at of the stairs. The entering guilty plea before a conditional officer asked Bennett per- where the other 11(a)(2).1 under Fed.R.Crim.P. The dis was, son but Bennett him told that no one Myers trict court sentenced to 15 Clifton upstairs. else shaky Her voice was years imprisonment pled guilty after he to appeared and she upset. possession of a firearm a convicted Azzarano then noticed a man felon, standing §§ 922(g)(1) violation of 18 U.S.C. 924(e). door, behind a and the officer ordered him appeal, Myers On contends man, denying gun point. that the district court erred in Ms to come out at later suppress. agree.2 motion to We defendant, Myers, identified as the Clifton complied Myers with the order. As came Background

I. door, from carrying behind he was 19, 2000, July Philadelphia On Police bag. black school The officer ordered responded Officer Leonard Azzarano to a Myers Myers got onto the floor. As on reporting 911 radio call in an disturbance floor, bag he threw the black school apartment involving person gun. with a down, and it landed about three feet from It was later discovered that the 911 call Myers’ him. Officer Azzarano handcuffed placed by year old Diane lying hands behind Ms as he was face back McKnight, reported resided at the who proceeded pat down on the floor and Upon residence with her mother.3 arriv any- him down. The officer did not find location, ing reported at the Officer Azzar- thing during pat-down. young girl standing ano saw a adolescent name, Myers Azzarano then asked his approximately two feet outside of the apartment girl Myers responded door. The was later identi- that it was “Samuel * Alarcon, jurisdiction pursuant The Honorable Arthur L. Senior Cir- 2. The court had district jurisdiction § to 18 U.S.C. We have 3231. Judge Ap- cuit of the United States Court of § pursuant to 28 1291 and 18 U.S.C. U.S.C. Circuit, peals sitting by designa- for the Ninth 3742(a). § tion. girl Appellee’s as "Diane .brief refers to the 1.Myers right challenge reserved the Bennett,” Appellant's but as well as the brief suppression ruling part district court’s transcripts Appendix refer her as in the plea agreement. his McKnight.” "Diane though of a firearm possession officers then arrived even Two other Jenkins.” scene, they kept weapon watch over was not discovered until after his on Azzarano took Bennett down arrest. the court reasoned that Myers while During the question her.4 brief Azzarano had cause to stairs to pur Bennett told Azzarano questioning, simple either for assault boyfriend’s § name was “Clifton.” As her suant to 18 Pa.C.S.A. domestic vio from the name § this name varied pursuant to 18 Pa.C.S.A. lence given, Azzarano returned to the had first a violation of the Firearms Act Uniform again ask his name. second floor § pursuant 18 Pa.C.S.A. Myers, Azzarano noticed approached (“VUFA”). As he The court concluded even looking bag at the black Myers kept that ultimately only charged though Myers was he was arrested. he had set down when possession in federal court with of a fire increas Myers appeared getting also to be arm a convicted felon in violation of 18 that nervous and Azzarano noticed ingly 924(e), 922(g)(1) §§ and this did not U.S.C. halting. Myers’ shaking voice was negate probable cause to arrest him on the that charges. other The court found the opened bag the and discovered Azzarano gun was valid that the therefore thereafter gun inside. was properly pursuant was to a search seized in court with a violation of charged state incident to that arrest. The court conclud Act. Pennsylvania’s Uniform Firearms His ed: subsequently transferred prosecution was find, basically, backpack I that the indicted him for

to federal authorities who the control within defendant’s immediate 924(e), §§ violating 922(g)(1) 18 U.S.C. and, therefore, I conclude that this was it for a convicted felon illegal which makes a search incident to the arrest and Ias Prior to the sched- possess to a firearm. agreed believe the defendant at the time date, court conducted uled trial the district argument, although perhaps of oral suppression hearing the aforementioned on something contrary has said to the suppress Myers’ gun. motion to papers since that time. Azzarano testified at McKnight and Officer hearing government. on behalf disagree. App. at 171a.6 We hearing, Although At conclude that Az- the conclusion we ruling entry district court issued an oral from zarano’s initial into the residence Myers’ suppression justified, mo denying the bench we hold there was no expressed probable Myers. tion. court concern that to arrest More- over, charged assuming arguendo had been with unlawful even that Officer infra, explained "wanted 4. Officer Azzarano that he cussed domestic violence is not a sub- [Myers] girlfriend, separate him from separate stantive crime from distinct sim- his— girl's I wanted to take her mom.... Pennsylvania. ple assault under the laws of my experience, a wit- downstairs because complainant ness or a to domestic abuse is 6.The court's reference to the defendant's usually unlikely accurately to—to describe argument apparently at "concession" oral happened what front of who had someone upon response defense based counsel’s abusing is—who had been them for fear of argu- inquiry the court made as counsel was App. retribution." at 74a. However, ing suppression we do motion. reading not believe that a fair of this record purposes clarity, 5. For we will use the term that defense counsel conceded that establishes "domestic violence” to refer to the crime of gun during properly seized a search simple assault committed in the context of a However, relationship. domestic as dis- incident to an arrest. Glasser, cause to arrest United States 750 F.2d (3d Beck, Cir.1984), citing at U.S. motion still should Myers, suppression 96, 85 review of Our the district govern- granted because been legal court’s conclusion its burden of estab- has not satisfied ment Ornelas, cause existed is de novo. See inci- ensuing search was lishing that the 699, 116 S.Ct. 1657. U.S. to a lawful arrest. dent

We construe the record in the light government. most favorable to the II. Discussion Riddick,

See United States v. Azzarano did not A. Officer (3d Cir.1998). doing have Probable Cause supply testimony so we do Arrest government during failed to elicit suppression hearing. Similarly, must we Probable cause exists whenever drawing refrain from inferences are cir reasonably trustworthy information or record, supported by either not officer’s knowl cumstances within it, contrary uphold in an effort to an ar person edge are sufficient warrant Kithcart, rest. See United States v. that an of caution to conclude reasonable (3d (“Kithcart Cir.1997) 529, I”), F.3d 536 person by committed fense has been Kithcart, States v. 218 F.3d United Ohio, Beck v. 379 U.S. being arrested. See (3d Cir.2000) (“Kithcart II”). 213 (1964). 223, 89, 91, L.Ed.2d 142 85 S.Ct. 13 reviewing judg In by on-the-scene validity of an arrest is determined course, must, police ments of officers we of of the state where the arrest oc the law police may remember officers well California, Ker v. curred. See inferences (1963 and make ... 1623, 10 “draw deductions 23, 37, 83 L.Ed.2d 726 ) might per well elude an untrained opinion). (plurality Cortez, v. 449 son.” United States U.S. reviewing suppression a or 411, 690, 418, 101 S.Ct. 66 L.Ed.2d 621 der, findings district court’s we review the (1981). Nevertheless, an officer’s infer fact for clear error. See United States only justify can ences and deductions (3d Roberson, 75, Cir.1996), v. 77 government arrest if the satis warrantless States, v. 517 citing Ornelas United U.S. establishing its burden of fies 690, 699-700, 1657, L.Ed.2d necessary support cause the arrest. (1996). previously found We Notwithstanding the deference afforded that: on-the-scene conclusion of offi cers, ultimately be probable cause must cause [t]he determination courts, police. by decided arrest is funda- exists for warrantless Glasser, supra.

mentally analysis a factual that must be earlier, at the performed the officers scene. noted the district court found As It is of the court to deter- Myers the function for either probable cause to arrest objective assault, abuse, mine whether the facts avail- or a simple domestic VUFA, suppres able to the officers at the time of arrest and therefore denied the however, conclude, justify a reasonable motion. were sufficient sion We probable cause to being that an commit- did not have belief offense of those offenses.7 ted. when was ordered to floor 7. The court ruled that the arrest oc- curred district Simple presence Assault the offense is committed in the arresting specifically officer or when court concluded that The district authorized statute. See Pa. R.Crim. P. “ongoing” simple as committed Clark, 502; Commonwealth 558 Pa. of Officer Azzarano. sault in the (1999); 735 A.2d Common- agrees. 169a. The Dissent See App. See Butlers, wealth v. 536 Pa. 637 A.2d simply the facts Dissent at 284. 1326, 1329 Officer Azzarano ar- finding that Officer Az- support do not rested without a warrant. There- assault, simple zarano or that witnessed fore, Azzarano’s arrest for sjmple assault simple “ongoing” pres in his assault Pennsylvania is not authorized under law ence. simple unless the record establishes that a portions Pennsylvania’s The relevant presence. assault occurred in his simple are follows: assault statute (1) injury, Absent actual subsection (a) guilty ... A of assault if person is simple requires assault statute an at- he: tempt bodily injury. to cause See 18 Pa. (1) attempts intentionally, to cause or 2701(a)(1). Moreover, § Pennsylva- C.S.A. knowingly recklessly bodily causes requires “specific nia intent to bodi- another; injury to

ly injury,” in simple order to commit a J.L., assault. Pa.Super. Interest (3) attempts by physical menace to (1984) 475 A.2d put another fear of imminent serious bodily injury.... Although Myers Azzarano heard 2701(a) (2002). § 18 Pa.C.S.A. Under quarreling, Bennett the officer never testi law, Pennsylvania simple assault is a mis- Myers fied that he believed that intended above, Pennsylvania demeanor. As noted injure suggests Bennett.8 The Dissent governs validity Myers’ law arrest. radio, that the information from the Ker, See 374 U.S. at 83 S.Ct. 1623. McKnight’s combined with upon statement Pennsylvania legislature specifi- has arrival, Azzarano’s led cally authority the officer to rea limited the officers sonably that an to make arrests for misde- conclude armed man was warrantless may fighting meanor offenses. An officer conduct a with “the informant’s” mother. only arrest a misdemeanor warrantless for See Dissent at 280.9 back, "informant,” describing McKnight and handcuffed behind his and we In as an D., agree. See v. Hodari apparently attempting the Dissent is to draw California 621, 626, 111 S.Ct. 113 L.Ed.2d 690 support from cases that hold that information (1991). Moreover, party neither contests that (such McKnight) from reliable informant Myers was arrested rather than "detained” at support probable can search under point. However, the Fourth Amendment. as we dis- below, inquiry cuss more detail into the above, explain 8. As noted the officer did (and probable cause to search the related he took Bennett downstairs because of a con- "informant),” reliability focus on the of an is may Myers' cern that she not be candid in upon equivalent inquiry not the based a fear of retaliation. of an into States, that does not amount to a reason- Steagald cause to arrest. v. United Myers able belief that a simple had committed U.S. 68 L.Ed.2d 38 presence. govern- assault in the officer's that, every ment opportunity to establish attempted any but never even to elicit such testimony. facts, Dissent Azzarano’s own statement of what he recounting reasonably Myers’ concluded from of six actions McKnight “is the oldest Savage, Pa.Super. v. Commonwealth mean? (1980). However, 418 A.2d Well, I was ar- OFF. AZZARANO: Myers pointed that there is no evidence ar- resting him for—I could have been presence or gun at in Azzarano’s Bennett resting him for terroristic threats or otherwise, nothing supports the infer- as- domestic—violations of domestic thought had. The ence that Azzarano ... sault. “Myers’ concludes that conduct Dissent presence constituted an Officer Azzarano’s put Ms.

attempt by physical menace to Well, THE I’m not familiar COURT: bodily in fear of imminent serious Bennett That’s with a crime of domestic assault. However, Azzar- injury.” Dissent at 286. why asking. I’m only thing Myers did ano said that the ... the arrest a door. See OFF. AZZARANO: his was hide behind and, like I actually terroristic threats App. at 70a-71a. Moreover, presence, the government estab- assault occurred in the officer's if the had be reasonably in the house would believed that number of children lished that Azzarano Bennett, assaulting such irrelevant. and that said, attempting get assault. That would officer was for domestic control of the type some threat level situation for safety. be assault or his own As noted above, pre- he had towards someone who he testified that he was at alone relationship with. that time vious and “did not know what was However,

going App. on.” at 71a. prudent fact that it get control of the situation does not create the You mentioned THE COURT: terror- necessary Terry cause for an arrest. See threats, istic what was threat? Ohio, v. 392 U.S. 88 S.Ct. At OFF. AZZARANO: that —that’s (1968). L.Ed.2d 889 I trying I was—that’s what was what fact, at oral argument, the Assistant that time. I should—I determine Attorney attempted United States anal- I said domestic assault. What meant to ogize Azzarano’s a stop actions to and frisk fact, say, in was domestic abuse. Ohio, by Terry sanctioned gov- and the Well, THE you but said ter- COURT: ernment devotes an entire section of its threats. was the roristic What threat? arguing brief to search of the “[t]he OFF. AZZARANO: The threat reason, bag separate for a valid handgun. that —the threat would be a Terry incident to a valid search.” Govern- Id. at 72a-73 However, Br. Terry ment’s at 23—6. has argues that The Dissent Azzarano testi applied been never inside a home. Even fied that he arrested for domestic assuming arguendo Terry could be of his assault because terrorist threats stretched to cover Officer Azzarano’s ac- handgun suggests with a that our home, in a private Terry tions only would ... accept “refusal Officer Azzarano’s allow the officer to exercise control over undisputed testimony concerning the infer Myers to protect himself and secure the drew, totality ences he based on the Ubiles, situation. See at 217. A F.3d circumstances, contrary duty to our as Terry stop justify cannot an arrest unless ” appellate judges.... Dissent at 283. developments additional during arise However, only interpretation fair temporary the course of the detention es- testimony Azzarano’s is that he concluded necessary probable tablish the for an quarrel in a Bennett had been arrest. Royer, See Florida v. Myers, gun. and that had a That 491, 507, 75 L.Ed.2d 229 does not establish reasonable belief there are no such addi- Bennett, Myers had assaulted and it cer tional circumstances here.

tainly not establish assault in does Myers’ Dissent concludes that “me- presence.11 officer’s nacing” behavior ongoing constituted an explanations Azzarano’s

Officer own assault on both Bennett and Officer Azzar- ano, finding Myers his actions a that refute because the “threat of imminent harm assaulting anyone from behind door. to Ms. Bennett from an armed man did not Myers However, Azzarano ordered to the floor and cease.” Dissent at 284. as we Myers noted, him arrested not because assaulted have this record does not establish (or Bennett), but Myers’ attempt because the that to avoid detection below, 11. As we Myers discuss it is not a crime to Azzarano believed did not live with possess gun a inside of one's own home in right Bennett or that he did not have the 6106(a), Pennsylvania, § see 18 Pa.C.S.A. and possess gun. a nothing suggests on the record that Officer boyfriend gun. him that had a simple a See id. a door constituted hiding behind Azzar- or Officer at 64a. Azzarano encountered Ben- of either Bennett When assault testimony not to ano, home, is appearance and the officer’s her nett inside her contrary conclude, demeanor led Azzarano to not physical fight that had been in a or she Azzarano’s testi that some of We realize boyfriend, an armed as the threatened context, could, sup out of mony taken conclude, court but Dissent and district that and Bennett had port finding arguing. that Azzar- she had been altercation, physical in a or been involved ano testified: for Azzarano to that it was reasonable an altercation thought so. Such shaky, upset Her voice was she seemed that ac support an inference could and seemed that she had not—it didn’t Bennett, injure or that tually intended to just seem that she had been involved in in imminent serious put her fear of he had a normal discussion with someone. She especially given true bodily injury. This is that she had been involved seemed appears gun. about a It the information type dispute. some that Az- district court’s conclusion that the Myers for sim zarano could have arrested added). (emphasis at Azzarano did Id. 69a just upon such ple assault is based say anything not that he heard that would record, the Dis interpretation of the physical altercation. be consistent with interprets record in a similar sent not, example, pushing, hear or He did fairly when viewed fashion. being breaking. thrown or furniture about here, testimony with all of the context anyone Nor did he hear scream for assis- Azzarano rea finding court’s that district testify not that he tance. He did even Myers and Bennett sonably concluded that anyone cursing. merely He heard heard meaning of a “fighting” within the were two raised voices and “more than one set ” clearly erroneous.12 simple assault is Significantly, Id. de- footsteps.... Az- testimony only establishes objected fense counsel to the characteriza- zarano and Bennett Azzar- one-point during believed “fight” tion of of a ver- “fighting” had been the sense 65a. The court testimony. App. at ano’s support finding It quarrel. bal does objection and reminded de- overruled the they engaged in a that he believed were it in “explore that he could fense counsel struggle. It is also physical altercation on cross through questioning,” detail more argument than a verbal obvious that more prosecutor decided examination. Id. required simple to commit the crime of examination, at- not to wait for cross law, Pennsylvania and we assault under Az- by asking tempted to elicit that detail npt suspect Pennsylvania unique law is specific you be a little more zarano: “could regard. why you it heard about what was Id. The thought fight?” dt was a you that, entering before Azzarano testified invitation as fol- responded to that house, officer girl “the outside stated voices, “I raised I heard lot lows: heard boy- arguing was inside with her her mom that did not sound upstairs of movement Az- friend.” Id. at 68a just Id. McKnight like a normal discussion.” also recalled' that told zarano stressed, place out of assuming quarrel the took that first floor and we have even As Accordingly, the sight floor. on the second physical Azzarano believed that a altercation Bennett, authorized still not have been it was arrest would occurred between Pennsylvania law. clearly "presence” the under not in his as he was on signifi- contrary, nothing minimize the the our conclusion is Dissent would appropriate discharge that more than the of testimony by suggesting cance of such reviewing function as a court. It our is conquer in a “divide and engaging arewe testimony, credibility, the officer’s not his totality the of the analysis” ignores that government’s that leaves a void in the at Dissent 276. How- circumstances. See proof. Although interpret we must his ever, by placing the use of the only it is testimony in light the most favorable to proper in its context on this “fight” term it government and afford the benefit of fairly record that we can evaluate Officer inferences, all appellate reasonable our testimony, totality and the of Azzarano’s function neither allows us to turn a blind inside Bennett’s home the circumstances eye government’s proof, to the holes in the Clearly, was arrested. we when in engage speculation nor the level of that totality of the circum- ignore can not necessary spackle would be over them. in focus on an isolated word stances and apartment do not conclude that We determining the officer meant when what Rather, “disarray.” in was not we con- “fight.” he testified about that government clude has not satis- great court attached a deal district establishing fied its burden of that significance of to Azzarano’s observations (i.e. appearance apartment the “dis- demeanor, and the condition Bennett’s array”) support was such as to a reason- of her home. The officer testified that the physical able conclusion that a altercation disarray, especially up- house was “in had occurred that realizing there. been[,] ... they stairs also the where burden, government has failed to meet this woman I found her demeanor of the when “ignore[ we do not Officer Azzarano’s ] visibly upset she seemed shaken.” daily experience investigating domestic App. at also falls short of 104a. This disputes prior and his observations of the establishing that an assault occurred condition of residences where violations of presence. officer’s The record is devoid of 2701(a)(3) § have occurred.” Id. We are disarray that suggestion the level merely noting that Officer Azzarano never point being proba- excessive to the compared appearance of Bennett’s res- tive of a The most physical altercation. idence to other residences where he had that can from we conclude the officer’s investigated claims of domestic abuse. description apartment of the state of the comparison missing That is one of the messy. Despite having every that it was speculation. links that invites It should be so, opportunity government to do nev- testimony, furnished Azzarano’s appearance of er established that the “appellate finding” fact how Ben- justified any 'physi- home that conclusion compared nett’s residence to others that there, cal altercation had occurred and we investigated. Azzarano had supply testimony gov- can not for the argument As defense counsel noted in at by drawing ernment inferences suppres- the close of the at the evidence testimony beyond parame- stretch the “[tjhere’s hearing: sion no information I, supra. ters of this record. See Kithcart anything was broken. There’s no in- The Dissent believes our conclusion formation that the doors or windows or only the evidence establishes that the plates anything furniture or else was “messy,” residence was rather than evi- broken the house that would indicate dencing altercation, physical is an exam- type dispute there was some going ple of appellate finding reweigh- fact App. Clearly, nothing on.” at 130a. ing of evidence. presence. See Dissent 283. On broken the officer’s To the uncertainty apprehension equating concluded district court that extent testimony estab- probable Terry, supra. Azzarano’s cause. See “fight” a in belief of a reasonable lished upon Based our review of this record we physical a altercation between sense of that an finding conclude that a assault was pres- in the officer’s Myers Bennett and presence officer’s is clear- “ongoing” otherwise, finding court’s was ence or ly hold that the erroneous. We therefore Although we defer to clearly erroneous. satisfy government failed its burden not findings, court’s we do suppression establishing police probable that the had stamp. a See United function as rubber Myers simple cause to arrest assault. (3d Jones, v. States Cir.1993) magis- to review of (referring 2. Domestic Violence cause for trate’s determination warrant). a search issuance of concluded The district court also justified in ar that Officer Azzarano was apprehension his explained Azzarano resting Myers Pennsylvania’s under do the door- Myers hiding behind upon seeing law, § 18 Pa.C.S.A. mestic violence way as follows: police officers to make That statute allows or [Something happened there simple assault of a a warrantless arrest for happening and there something was upon family or household member based for him to hide from no reason would be not probable cause even the offense was fact, if, just simple argu- a it was me officer. presence committed of the parties. two ment between provides: The statute Thus, Azzarano 70a. testified App. at a hiding right because behind suspicious police he A officer shall have the same was a officer is approach at the as in a door of arrest without a warrant felo- argument.” “simple inconsistent with ny whenever he has cause gun explained pointed that he his ... the defendant has violated believe “be- hiding behind assault) at the door § ... (relating simple pos- gun I he had a his believed member against family or household that the little wpon based session place not take although the offense did fact at 71a had said so.” Id. girl police officer. in the added). his conclusion He base did § 18 Pa.C.S.A. 2711 anything armed on testimony establishes Officer Azzarano’s after he entered the resi- heard or saw proscribing § regarded that he candidly conceded dence. Azzarano called “domestic substantive offense he was still he arrested because violence,” abuse,” “domestic “domestic and, honest in the house “to be himself However, § not de 2711 does assault.”13 exactly know what you, did not [I] Rather, substantive, it fine a offense. the male and on. I handcuffed going to make merely authorizes Thus, we him under arrest.” Id. placed specified for certain warrantless arrest proba- that Azzarano had can not conclude assault, misdemeanors, including simple without for assault ble cause to Smith, testimony sault. See Commonwealth example, point in his 13. For one (1988) Pa.Super. 552 A.2d me testified: "it seemed to Officer Azzarano ("The to the list of 2711] statute added [§ been a domestic abuse—that crime had to make police officers offenses which allow App. at 105a (emphasis committed.” earlier, does not create [i]t arrests ... is not a warrantless we domestic violence As noted offenses.”) simple new class of criminal substantively from as- crime distinct 262 though the crime was committed out- had.” testimony

even The officer’s establishes presence of the officer. See Com- only side the that he believed there had been Smith, Pa.Super. 380 monwealth “dispute” not a “struggle.” It is worth (1988) (“Pa. A.2d R. Crim. repeating that when the Assistant United P. an 502] P.101 allows [now R. Pa. Crim. Attorney attempted States clarify probable on arrest without warrant testimony by officer’s him asking to be the offense is a misdemeanor cause when specific “fighting” more about the officer presence not committed of the offi- merely confirmed he believed that it only specifically such arrest cer when was not a “normal discussion....” Id. at statute.”). However, by authorized 65a. We therefore can not conclude that committed in crime must be the context of the officer believed Bennett and relationship, a domestic and there must physical had been involved in a altercation still cause to arrest for be supplying testimony without for him. offense; underlying substantive this Moreover, § only applies when an case, simple assault. assault “against has been committed Moreover, authority the arrest con- family or household 18 Pa. member[.]” ferred the statute is limited § C.S.A. 2711. Officer Azzarano admitted may “a following proviso: officer that he could not determine whether person pursuant arrest a to this section Myers shared the bedroom with Bennett observing physical without first recent in- or not. any personal He did not see ef- jury or other to the victim corroborative belonging fects to a male in the bedroom § 2711. evidence.” 18 Pa.C.S.A. area. App. See at 103a. Accordingly, The district court concluded that there there was even less ar- was sufficient corroboration to sustain an § rest for a violation of 2711 than for a § 2711. arrest under The court noted: assault). § violation of (simple up- [Officer When he arrived Azzarano] stairs, Cydia he encountered Bennett in Violation the Uniform hallway. shaky. Her voice was She (“VUFA”) Firearms Act just upset as if she had in- been The district court reasoned that if in an volved altercation. She denied Myers did not live in the house with Ben anyone else was in the house. nett lawfully he could not a gun there He also observed the house was in license, without a and therefore he could disarray if struggle there had been a have been arrested on a charge. VUFA reasonably concluded from Ben- that, The court further reasoned on the nett’s demeanor this was consistent hand, Myers Bennett, other did live with with that of domestic abuse victim he could § have been arrested under away reluctant to walk with the for domestic violence even though he could of the offender. not then have been arrested for a VUFA. App. at 167a-168a However, the district court’s reasoning ig already explained why We have the tes- nores the requirements respective timony support finding does not that the statutes. officer had a reasonable belief that law, had been in a physical Pennsylvania involved altercation Under it is a third Likewise, degree Bennett. testimony felony person carry for a does not “struggle corroborate that a weapon person, oc- unlicensed “on or about his curred or that the officer thought except place one in his place of abode or fixed cause to probable not Azzarano did have Pa.C.S.A. 18 business[.]”14 Myers. arrest a it is not 6106(a)(1). Inasmuch § own one’s inside gun possess to crime cause “probable argues that The Dissent possessing residence, mere fact the Az- Myers before to existed arrest supply can not a residence gun inside threshold,” at Dissent the zarano crossed viola a VUFA arrest for to cause probable to failed 277, that we have argues possible justified court district The tion. that Officer can conclude explain we how if the reasoning that by arrest VUFA justified and still entry was Azzarano’s residence, then Myers’ not was apartment to cause probable have he did not hold that to ar probable cause was sufficient there inside officer was after the arrest noted As charge. gun him the for rest on This is at 278. based Id. the home. where not know earlier, Azzarano did Az- holding that belief that the Dissent’s him, nor did arresting before Myers lived necessarily justified entry was zarano’s re belief any reasonable testify about he by entry supported that the means at App. See residence. Myers’ garding circum exigent cause probable both Therefore, fact that 103a. Loui Kirk v. colleague cites Our stances. being arrested not know did 2458, U.S. -, 153 siana, 122 S.Ct. 536 to the reasonable fatal home is in his own curiam), (2002) 599, (per L.Ed.2d a VUFA arrest for warrantless ness of the (3d 333, Cir. 339 496 F.2d v. Volz. Fisher 217 Ubiles, at See charge.15 As we Id. 1974), position. that support to public gun on (mere of a possession 9, mis Dissent is supra at note note suspicion necessary supply not can street that the circumstances takenly equating rea stop absent Terry even a support to investigate to entry justified Azzarano’s itself possession suspicion that sonable arrest required probable cause with the unlawful). is during the home found inside someone thus colleague investigation. Our that not itself Moreover, could gun similar, inquiries. distinct but conflates two arrest cause to probable provided two dis- serves Amendment The Fourth until not discovered it was Myers because often intertwined separate, though tinctly It is axiomatic he was arrested. after necessary cause probable interests. by what justified not arrest is “[a]n “that showing requires an arrest Hen See discloses!.]” search subsequent to believe exists 103, cause probable 80 States, 361 U.S. ry v. United warrant] of an the case (1959). subject [in Myers’ 134 4 L.Ed.2d S.Ct. ... and thus an offense committed has he had until searched bag was not after an individual protect serves primarily hold that therefore We been arrested.16 Although fact. ney's Charging Unit after oth- and certain officials 14. Law enforcement deter- wrong carry nothing unit there is statute authorized er individuals which are appropriate offense with mining home or business weapons outside 18 Pa. Az- See provision. from this it is the reasonableness excepted charge Myers, 6106(b). statute reduces § C.S.A. our belief controls zarano's if the degree misdemeanor Beck, a first offense to analysis. See cause any other not committed has individual S.Ct. 223. 6106(a)(2). § id. at crimes. See 16.Thus, issue to reach the not need dowe testimony estab- totality of Azzarano's 15. The proba- arresting must have officer whether an the arrest think not Azzarano did lishes that li- a defendant Rather, to believe ble cause at all. weapons offense was for a at 172a. App. carry See a firearm. censed Attor- the District charge determined from unreasonable seizure.” Steagald ests of the citizen—the interest in re- States, 204, 213, United U.S. taining possession of property and the L.Ed.2d 38 Howev- interest in maintaining personal privacy. er, necessary to search A seizure former, threatens the a search “safeguards an individual’s interest the latter. privacy of his posses- [or her] home and 460 U.S. at ” sions .... Id. The facts in Steagald were here, the converse of the facts but the The information Azzarano received from Court’s Fourth Amendment clarification year the 12 old girl standing two feet applicable and distinction is no less to Az- outside her residence certainly created entry, Myers’ zarano’s arrest. exigency sufficient to allow Azzarano to Steagald, In the had an arrest enter her home to investigate. not, It did for a suspect “Lyons”

warrant named and however, authorize him to arrest anyone Steagald’s entered home without a warrant Moreover, found inside.17 as the dis Lyons. in search of While inside search- noted, trict court McKnight consented ing Lyons, they discovered cocaine and the officer’s “intrusion.” In discussing the Steagald subsequently convicted of suppression ruling, the district court noted illegal possession of that controlled that McKnight did not “direct[ ]” Azzar- substance. In reversing conviction, ano home, to enter her she at the very that, the Court although held the arrest least consented to it.18 Accordingly, we warrant authorized seizure of Lyons, it did can agree not with the Dissent’s attempt not allow Steagald’s to enter resi- inquiry redefine our by arguing that entry dence unless that supported “probable cause existed to Myers arrest cause, probable exigent circumstances or before Officer Azzarano crossed the 206, consent. 451 U.S. 101 1642. S.Ct. threshold.” Dissent at 277. Our colleague The Court had noted this distinction in characterizes the district analysis court’s Brown, Texas v. 460 U.S. 103 as being a “well-reasoned discussion of the S.Ct. There, L.Ed.2d pertinent facts and applicable legal discussing in the limitations on “plain principles...”. Id. at 281. no doctrine, view” Court stated: where does the district court so much as Although our Fourth Amendment suggest cases entry Azzarano’s furnished sometimes refer indiscriminately to the necessary probable cause to arrest seizures, searches and there impor- are Myers inside fact, Bennett’s home. In tant between the two that are court’s entire analysis is to the contrary. differences relevant to the plain view Moreover, doctrine. The prosecution does not even protects Amendment two different inter- attempt uphold this by suggest- arrest 17. contrary view advocated App. Dis- at 167a. The defendant does not focus sent would hold that Azzarano have would on finding appeal, on and we therefore justified arresting been in even if he need not decide if a minor can "consent" to a and Bennett in peaceful were the middle of a police entry of parent's her adult residence dinner, sharing jokes laughing, when Az- under Fourth Amendment. We note this zarano "crossed simply the threshold because aspect of the only case to ensure that the entry justified.” Azzarano's initial nature Azzarano’s Fourth Amendment "in- context, stated, kept trusion” be The district and to court "I find that further officer, fact, invitation, explain why implied have an did support intrusion does not if not a by McKnight direction may enter the arrest he have made thereafter. home stop potentially deadly situation.” noted warrant. We in an arrest cause named that Azzarano ing a case decided previously had not that we circum- simply because arrest dwelling party into third “involving entry Bennett’s entry into his justified stances warrant,” only on valid in reliance home. surveyed the decisions then and we his argu much colleague rests Our that issue. We that had addressed courts entry initial allowed Azzarano’s ment that constitutionally “police may held opinion on our to arrest him citizen of an innocent the home enter (3d Volz, Cir. F.2d Fisher for whom suspected offender of a search ruling in Court’s 1974), Supreme warrant, under even have a they valid -, Louisiana, Kirk v. circumstances, they also unless exigent (2002) (per 2458, 153 L.Ed.2d to believe that Kirk, the state court had curiam). premises.” the found on suspect will be the de arrest inside a warrantless upheld could if Fisher Even at 342-3. 496 F.2d the officers’ upon home based fendant’s suggest po- that to be stretched somehow had the that defendant belief reasonable they find inside may arrest someone lice jeopard delay would and that drugs, sold solely upon legality the based residence arrest an obtained Police ize the evidence. have to note still entry, we would only after the defendant warrant, but years before seven Fisher we decided had char state court been arrested. Steagald and clari- decided Supreme Court that no assertion the defendant’s acterized in- Amendment Fourth fied the different the war- justified exigent circumstances be- distinction from the arising terests as his home “irrele as of rantless intrusion hand, and a one on the a search tween at -, at 2459. S.Ct. 536 U.S. vant.” arrest) (i.e. on other. seizure than is less per curiam opinion In a remanded long, the Court pages inquiry two interests the distinct Given if to determine court the state Fourth considering instructed implicated when entry. justified the exigent illegal sei circumstances from protection Amendment’s searches, we illegal zures, to opposed as by our col- persuaded also not areWe circum that, exigent despite the conclude in Fisher. opinion to our citation league’s this to enter that allowed stances the Newark There, plaintiffs sued several cause residence, not he did police offi- and various Department Police Ac inside.19 got Myers once to arrest conducting practice of upon a based cers seized that was the evidence cordingly, plaintiffs’ searches warrantless been should have to that pursuant who was in of someone search apartments require- warrant McClellan, Amendment’s search Fourth v. See also Sheik-Abdi ment, probable cause requirement and the 1994). (7th court in Sheik-Abdi Cir. court stated: arrest. The to exigent circumstances distinguished between entry into warrantless justify legal- would has been of the home the veil Once home, for arrest. cause needed offi- for no need ly we see pierced, argu crime, long are Though the facts as eye to so id. at 1246. See turn a blind cers compliance circumstances distinguishable from the ably arrest is otherwise effected proba- requirement were sum entry (paramedics the constitutional of Azzarano's law). (and state when his wife home other relevant arrestee’s to the ble moned out, added) origi- (parenthetical passed after he Id. called an ambulance F.3d Trapp, 77 nal). Parkhurst Sheik-Abdi See also they when in turn called safety Cir.1996) (concern (3d analy aggressive), the belligerent and became entry into justify warrantless distinguishes can clearly of others it because is relevant sis residence). private by the presented privacy interests between Furthermore, Thus, suppressed.20 as although might appear even we it “reason- lawful, arguendo sume that the arrest was able” for an arresting officer to conduct possible we find that should search that is as as gun would still broad follow- arrest, ing an subsequent the Constitution suppressed have been does Supreme allow it. As the explained Court incident to the search was not arrest. (cid:127) in Chimel: argued It is ... it is B. The Was Not Incident reasonable Search search man’s house when he is ar- An To Arrest rested it. But that argument is made, an arrest is it “[W]hen subjective founded on little more than a the arresting is reasonable for officer to regarding view acceptability of cer- person search the arrested in order police conduct, tain sorts of on and not might weapons remove the latter considerations relevant to Fourth seek to use order resist arrest or Amendment interests. Under such California, effect his Chimel v. escape.” analysis, unconfined Fourth Amend- 762-63, protection ap- ment in this area would L.Ed.2d 685 This exception proach evaporation point. It is not general requirement warrant arises from a easy instance, to explain-why, for it acknowledgment common dy sense subjectively less reasonable to search a arrest, right privacy, namics of an the of man’s house when ishe arrested on his and the allow need to officers to just front lawn—or down the street— protect carefully It themselves. is tai it happens than is when he to be in the narrowly lored and crafted license that at house the time arrest. of addresses the tension between the need (internal 764-65, Id. at 89 2034 quo- S.Ct. for effective law enforcement on the one omitted). tation marks hand, constitutionally guaranteed and lib erty Accordingly, scope on the other. the Although this principle constitutional is of such a search must be tied “strictly to established, now application well its has justified and by the which circumstances uneven, been and determining the con- permissible.” rendered its initiation Id. at of tours “reason” within the confines of 762, (internal quotations 89 S.Ct. 2034 Fourth privacy Amendment interests has omitted). A search incident to arrest is anything led to but consistent results. only therefore “reasonable” within the

meaning of the Fourth Amendment when outset, At the we note that a to, it is by, confined and controlled the search incident to arrest has geo both warrant circumstances that the intrusion. graphic temporal and limitations: 20. insisting 307, 312, suggests The Dissent ed States 358 U.S. 3 L.Ed.2d 327 prosecutor we the do not elicit sufficient to evidence government prove insist that the the elements support finding of the various crimes could theo- arrest, confusing we are warrantless retically do, have been arrested for. We how- “quantum required of evidence to demon- ever, government insist that satisfy its strate cause for an arrest with the of establishing burden a reasonable belief that heavy placed burden on the Government to Myers assaulted in the pres- Bennett officer's present sufficient evidence of each element of residence, private ence inside this or a rea- persuades crime that trier of fact sonable belief that had committed one guilt beyond of the defendant a reasonable of the other crimes that the district court 282, citing doubt.” Draper Dissent at v. Unit- he concluded could have been arrested for.

267 v. States holding United its earlier incident search legitimate A (D.C.Cir.1983), F.2d 321 Lyons, 706 and person to the arrestee's limited control, the district had court reversed wherein the his immediate area within might suppression. denying he from which order area court’s meaning the Lyons, destruc- noted that weapon court Abdul-Saboor possession gain handcuffed, the closet evidence. the arrestee tible away, yards was several that was searched Hudson, 100 F.3d v. States United in the room were police officers six Cir.1996) (internal quotation (9th 1419 un- yet had been weapons and no Lyons, Chimel, at U.S. omitted), 395 citing marks Abdul-Saboor, F.3d at 85 covered. See v. States In United F.2d at 330-31. (D.C.Cir.1996), citing Lyons, Abdul-Saboor, attempt any Moreover, Lyons never made noted Appeals Court D.C. Circuit col- Lyons had “con- closet and object is reach the determining if an that, in arrestee,” are before search we revived lapsed been ceivably accessible Abdul-Saboor, acrobat 85 F.3d at neither an See began. that “he was to assume Abdul-Saboor, 85 F.3d F.2d at 324. Lyons, 706 citing a Houdini.” [nor] States (D.C.Cir.1996), citing United contrast, in Abdul-Sab the arrestee (D.C.Cir.1983). We F.2d 321 Lyons, for a reach that he would indicated oor neither. Myers was safely assume can opportunity, given if weapon be- handcuffed Yet, as he inasmuch “infirmity from suffering was not on face lying down while his back hind Ab ability.” physical impede his would by two armed floor, “covered” Therefore, dul-Saboor, at 670. F.3d returned when officers persuaded in Abdul-Saboor court would bag, Myers searched Ab concern over arresting officers’ by the are to of both we qualities possess concealed ability grab dul-Saboor’s bag at access to the that he had conclude he notwithstanding the fact that weapons, point. restrained. physically actually up- in Abdul-Saboor The court court Abdul-Saboor the Significantly, analysis our citing there the search held noted: (3d Rasool, 657 F.2d v. Virgin Islands upon which objective basis some Absent Cir.1981). However, the circumstances arresting officer the to conclude search uphold the court to the that caused arrestee either the to fear no reason the circumstances from quite different are the arrest which or environment here. cir our sister unfolded, agree we attempt- Abdul-Saboor, the arrestee In area where of the a search cuits that shotgun after a loaded to retrieve ed such in circumstances arrest occurred re- room, “specifically his entered incident search presents this case to be the area searched.” entry to quested arrest.21 Moreover, Abdul-Saboor, at 670. 85 F.3d added). cit- court then The Id. dis- had been magazine gun and a second proposi- support cases numerous ed before apartment in his covered by Abdul- cited the cases tion. search, the court upholding search. dis- cited our Saboor, as those as well distinguish pains took in Abdul-Saboor see, basis.” tive surround- circumstances shall 21. As we "objec- an just present ing Myers' search such senting colleague, rely upon either the Su zipped pockets one of the and discovered preme analysis proper Court’s of the scope cocaine inside. Id. of a search in vehicular New York v. Bel Belton moved suppress that evidence

ton, 454, 2860, 69 arguing that it was the fruit of an illegal (1981), L.Ed.2d 768 see United States v. search. Supreme The granted Court cer- Palumbo, 1095, (8th 735 F.2d 1096-97 Cir. defining tiorari the issue as follows: 1984) Queen, and United States v. 847 When the occupant of an automobile is (7th Cir.1988),22 F.2d 352-54 or direct subjected to a arrest, lawful custodial ly searches, involve vehicle see United does the permissible constitutionally Cotton, v. States 751 F.2d 1147-48 scope of a search incident to his arrest (10th Cir.1985); Virgin Islands v. Ra include passenger compartment of sool, (3rd 582, 585, 588-89 Cir. the automobile in which he riding? 1981). discuss, As we shall vehicle question That is the issue in the analogous searches are not to the search present case. here, and we will take this opportunity to Id. at 86 S.Ct. 1602 (emphasis clarify the difference between the two situ The began Court its analysis by restat- ations. ing parameters of Terry v. Ohio and Supreme The California, Court Chimel v. scope addressed the and reiterating that of a scope vehicular search in “the York New search [a] Bel must be strictly ton, There, supra. justified tied to and trooper a state stopped the circumstances which speeding car for rendered a traffic its initiation Upon permissible.” citation. (internal car, Id. quotation omitted). approaching the officer marks noticed four Belton occupants male noted and also Court per- smelled that Chimel mitted a limited odor marijuana. prevent of burnt search to officer also ar- restee from gaining weapons saw an envelope or destroying marked “Supergold”— evidence, but justifica- which concluded that that marijuana he associated with — on tion did not allow Belton, floor to routinely of the car. 453 U.S. at search an arrestee’s room “all or S.Ct. 2860. He therefore ordered desk drawers or other all closed concealed men out of car patted areas of that room itself.” Id. at each one down after separating them into (Internal S.Ct. 2860. quotation four separate marks areas on highway. the He omitted). The that, Court observed then al- car, returned to their retrieved the though principle the derived from Chimel envelope marked “Supergold,” and discov and Terry was quite therefore straightfor- ered that it marijuana. contained gave He ward, application its posed difficulties. each of the arrestees warnings the re See id. quired Arizona, under Miranda v. 436,

U.S. 86 S.Ct. 16 L.Ed.2d 694 noted, The Court despite efforts, its (1966), and then searched the passenger “no straightforward rule has emerged compartment of the car. The search re from the litigated cases respecting the vealed jacket a black leather belonging to question involved here—the question aof Belton on the back seat. The officer un- proper scope a search the interior of of of Queen Queen 22. The court in cites numerous cases cited in concern vehicular searches the issue of address whether a search Belton), (including as well as several non- properly was limited to the area of the arres- Queen searches, vehicular and the court does control, tee’s including Lyons. immediate See distinguish not between those two situations. Queen, 847 F.2d at 354. other The cases Belton, S.Ct. at custo- ato incident an automobile lawful (note (brackets original) emphasis at Id. occupants.” its arrest dial of omitted). In Bel- marks The quotation and internal 101 S.Ct. it clarify to ad- was attempt intended it a further declared Court ton establishing the the rule of Chimel only applying difficulties these dress such govern war- principles post-arrest set of of unique clear circumstances of a warrantless automobile, context in the the Court an searches of search rantless police officers provide in order no more stated, today does holding “our allow them would of rules which a set of Chimel’s meaning the than determine before- determination a correct reach “to problemat particular and in this principles privacy invasion of as to whether hand way the funda It in no alters context. ic enforce- interest of law in the justified in the Chimel established principles mental (quoting 101 S.Ct. 2860 Id. at ment.” scope of searches basic regarding the case Adjudication” Fave, “Case-By-Case La Id. custodial arrest.” to lawful incident Procedures”: versus “Standardized 3, 101 2860. 460 n. Dilemma, Rev. Robison the facts be- analysis 'to In its applying 142). the that since it, concluded the Court fore The Court declared: immedi- jacket “followed of Belton’s search that a established case the Chimel While jacket arrest, the and since ately” after may not to an arrest incident search passenger com- located inside “was imme- the area within stray beyond jacket ... car partment arrestee, courts control diate of we of the area which the reach thus within the area of definition no workable found the arrestee’s ‘within have concluded the ar- of control the immediate within meaning of within the control’ immediate includes ” arguably area when that restee 462, 101 S.Ct. Id. at the Chimel case.’ automobile of an the interior held that Court Accordingly, the Our occupant. recent is its arrestee seizure was lawful. gener- suggests cases reading of the Rasool, supra. Belton applied We . the relative- inside that articles alization automo stopped an There, also passenger compass ly narrow defendant They removed then bile. are an automobile compartment him. After handcuffed car and from the inevitably, even generally, fact handcuffed, the defendant an arrestee into which the area within found a of the car the inside searched weapon grab order might reach they removed which seat bag on the back to estab- evidentiary order ite[m]. Inside, gun. they found searched. category this rule a workable lish that evi suppressed district court defini- read Chimel’s requires, we cases de We dence, later reversed.23 but we may be the area tion of the limits as seizure to the pertaining the issue fined generalization. of that light searched had the “whether follows: police- that hold when Accordingly, we from as distinct the vehicle to search cause arrest custodial man has made lawful Rasool, within [it].” found any container automobile, he an occupant the that ultimately held F.2d We at 585. incident contemporaneous may, . as a the police arrest, com- passenger search that search. that automobile. partment of Belton. preme Court decided the Su- ruled court before The district found in Rasool

We the Belton We therefore believe that a legal analy- court careful to had been note that its sis of a object seizure of an found within holding merely applied teachings pursuant automobile to a search inci- special pre Chimel to the circumstances arrest, dent ato lawful necessity must of by an automobile search. sented See id. at special involve considerations set it Belton, citing 453 U.S. at apart general from the law regarding emphasized S.Ct. 2860. We the Court searches incident to lawful arrest. holding characterized its in Belton as “do Cotton, 751 F.2d at 1148. The court made ing determin(ing) no more than the mean that statement citing after Chimel and ing principles in particular of Chimel’s this Belton noting that Belton was a case problematic content. It way in no “in which a search incident to in- arrest principles alters the estab fundamental volving directly automobiles was at issue.” ” Rasool, ... lished in Chimel.... 657 Id. at 1148. added), F.2d at quoting Bel points Dissent to United States v. ton, 453 U.S. at 460 n. 101 S.Ct. 2860. Silva, (4th Cir.1984), 745 F.2d 840 a non- Thus, Judge points Wellford out in vehicular case. See Dissent at 285. Robbs, his dissent Davis v. 794 F.2d There, the Court of Appeals for (6th Cir.1986), “Belton was a case Fourth uphold Circuit did the seizure of a concerning application of the search zippered bag although the arrestee —who exception incident to the search was handcuffed behind his back—was sit- Davis, of an automobile.” 794 F.2d at ting on a bed in a motel room surrounded (Wellford, J., 1132 n. 2 dissenting). It by agents. armed FBI The court ex- apply does not the context of a search plained its reasoning as follows: “we are of private of a inside home where “Fourth opinion any objections may Silva rights preeminent....” Amendment are have to the validity of this search and Id. majority at 1132. The in Davis did disposed seizure are byof this court’s re- affirm a search incident to arrest although cent en opinions banc in United States v. the arrestee was placed handcuffed and in Litman, (4th Cir.1984) 739 F.2d 137 squad prior car to the seizure of a rifle in Porter, (4th United States v. 738 F.2d 622 However, his house. it is clear that the Cir.1984).” Silva, 745 F.2d at 847. The majority strayed Davis beyond param court noted that those cases relied upon Supreme eters that Court tried to in holding Belton that a lawful custodial erect in Belton. We are persuad neither arrest was sufficient to justify a contempo- by majority’s ed analysis in Davis nor raneous warrantless search person holding. bound its arrested as well as the “immediately sur- Cotton, In United States v. 751 F.2d rounding Id. area[.]” Since there was “no (10th Cir.1985), a car was dispute searched zippered bag [that was though even the arrestees had been hand- seized from was in Silva] the immediately cuffed and removed from prior the car to surrounding area and that it was searched the search. since Cotton in- contemporaneously arrest,” with the automobile, volved an it was gov- therefore court concluded that the trial court did not special erned rules which the Su- err in denying the motion suppress. Id. preme set Court forth in Belton. The The Silva court never discussed whether court in Cotton was careful to note that the arresting actually officers believed that important consideration. The court stat- the bag was accessible or under the arres- ed: tee’s control. It merely upon relied a me- Palumbo, 735 F.2d Belton, v. United States in rule of the application chanical (8th Cir.1984), persuasive. See is no more to the apply not rule did though even There, Eighth Circuit the Dissent at 285. Moreover, the authori- it. before situation of the court’s denial the district affirmed Porter —do upon ty relied —Litman suppress evidence to defendant’s motion any more in Silva analysis the make not followed during a search seized persuasive. room. That in a hotel arrest warrantless the seizure Litman, upheld court In the a dresser “hidden behind was evidence in a the arrestee bag from of a shoulder Palumbo, at 735 F.2d 1097. drawer....” of the However, the time at room. hotel there- that it was argued The defendant not handcuffed. seizure, was the arrestee him was “inaccessible to because fore their pointed arresting officers several offi- in the of handcuffed being he was at him while weapons cers.” Id. hol- then frisked, agents the of but one the However, at clear that not all it was the arres- and searched pistol his stered he ar- incapacitated as was as Litman, defendant F.2d at 137. bags. See tee’s noted that Appeals of gued. The dif- Court in was Therefore, Litman the situation testimony at arresting officer’s physi- there was the arrestee ferent [the hearing “indicates suppression re- physically was cally restrained. when the not handcuffed Further, arrestee] incapacitated. strained behind the the cocaine retrieved con- officers that Belton court concluded Litman from where arm’s reach within an drawer even acknowl- analysis without its trolled The court Id. at 1097. Palumbo sat.” an automobile that Belton edging “accessibili- stating: further ventured read then court therefore The Litman search. matter, not the bench- is ty, practical as a Supreme than the more into Belton far Rather, concluded mark.” Id. court so, ignored it doing In intended. Court item seized issue was whether the it that the very precedent language of immediate the area within the “was sought apply. to meaning arrestee within of the control Porter, affirmed the the court supra, Id. The court of Chimel California.” carry-on suppress a to of a motion denial rule explained “[t]his Belton cited to an “incident seized that had been bag may be generally which the area defines relied The court airport. an at arrest” searched, because not constrained the Su- declared that Belton and upon time of the unlikely at the arrestee is there “established preme Court had that area.” into actually reach arrest custodial that a lawful ‘bright-line’ rule Belton, 459-60, at Id., 453 U.S. citing search contemporaneous justifies a citation the court’s person arrested of the a warrant without portion of Belton to the to Belton refers area.” surrounding immediately attempting apply wherein Court (citations omitted), Porter, at 627 specific to the Chimel general rule Belton, citing search. automobile circumstance (Brennan, J., Again, dissenting). to Palumbo’s application has no Belt on narrowing mentioned the never even court in which the residence hotel room nor Belton, at- the Court’s nor language Myers was searched. to the holding limit its there tempt Queen, 847 States v. Finally, United car applying Chimel problematic area (7th Cir.1988), numerous cites F.2d 346 an occu- to the arrest incident searches to an incident a search upholding cases car. pant 272

arrest where the arrestee was also hand handcuffed him in an area that ap- cuffed behind his back inside of a resi proximately three feet open from the clos- again, dence. See Dissent at 285. There et where he hiding. had been See id. at however, authority is cited the court handcuffed, 349. After he was one of the with no discussion of the distinction be agents inspected the area around the blan- tween those cases involving seizures from ket and found an magnum uncovered .357 hand,24 vehicles on the one and non-vehieu- revolver which was loaded with six bullets. Queen, lar searches on the other.25 See See id. at 350. 847 F.2d at 354. Queen suppress moved to the fruits of Queen is, The court’s discussion in how- contending search it exceeded ever, helpful to resolving some of in- permissible scope of Chimel. He ar- consistencies that have in applying evolved gued that, that “it was inconceivable with beyond the rule of Chimel the vehicular back, his hands cuffed behind his he could Queen, context described in Belton. away have twisted from two agents armed agents had a warrant for the defendant’s past and dived a third grab the handgun arrest. They knew that was a convict- lying on the closet floor.” Id. at 353. The ed felon who had not pursu- surrendered government responded by arguing that the ant to a court order. police The also agents “reasonably believed suspected Queen was armed and dan- weapon on the floor of the closet was

gerous. police The executed the warrant within the grabbing range Queen of Mr. at his residence surrounding after it. .... policemen [and that] do not need to They searched the house an agent where presume, that, in a stressful situation like pile observed a of clothes and a blanket in here, the arrest the defendant will act in an open Queen Suspecting closet. to be wholly rational manner.” hiding underneath, Id. The agent court immediately accepted government’s gun Queen argument drew his and ordered not- come that, ing although Queen out with up. his hands initially After re- was “neither an fusing order, comply Queen Houdini[,]” acrobat [nor] the nature of finally emerged from pile. beneath the circumstances that the officers were agents patted him while keeping facing down against counseled requiring “punc- guns their They trained on him. then tilious judgments regarding what is within Belton, 454, 24. New York v. 453 U.S. 101 watched the arrestee lug- as she claimed her (1981); S.Ct. L.Ed.2d 69 768 United gage baggage from the area. dropped She Hatfield, (6th States v. 815 F.2d luggage her when the approached and Cir.1987); Robbs, (6th Davis v. 794 F.2d 1129 identified hys- themselves. She then became Cir.1986); Cotton, " United States v. 751 F.2d terical, exclaimed, 1 knew I shouldn't (10th Cir.1985); Virgin Islands v. Ra this,’ proceeded done to urinate on sool, (3d Cir.1981). 657 F.2d 582 clothing.” her 605 F.2d at 352. Officers then Palumbo, luggage retrieved the airport from the 25. United States v. 735 F.2d 1095 (8th Cir.1984); it, doorway where she Roper, dropped United States v. and actu- (11th Cir.1982); F.2d ally brought United States v. it to "within one foot [the (7th Fleming, Cir.1982); 677 F.2d 602 United position” arrestee’s] new opening before Garcia, (7th States v. Cir. bags. She "was not handcuffed or otherwise 1979). Fleming anomaly. is an That case during restrained this Fleming time.” Id. dis- luggage involved a search of incident to a tinguished that situation from the situation in airport. warrantless arrest Chadwick, United States v. (much had reliable information of which was (1977), 53 L.Ed.2d 538 and ruled confirmed) independently the arrestee that the search was reasonable under Chimel. arriving would be with heroin. Police had no reason to arresting officer that the arrestee’s beyond just what or the environ Thus, have sometimes fear either arrestee searches grasp. might hindsight unfolded.” Ab when in which the arrest upheld even ment been of the defen- dul-Saboor, likelihood that at 670 adde suggest slight.” question reaching area d).26 dant omit- (internal quotations citations and

Id. here, Azzarano's ac Of course ted). “objective just an basis” provide such tions to “hindsight” using concern over This that he not concerned with to conclude split-sec- officer’s overrule an punctiliously bag. into the Officer Az- Myers reaching justifiable courts’ explains judgment ond Myers’ hands behind zarano handcuffed weapon where the suppress to reluctance on the Myers was face-down while his back that suggest circumstances objective immediately con The officer then floor. of the arrest at the time actions officer’s that included “frisk a brief search ducted an arrestee that the officer’s belief reflect App. at 72a. waistband.27 See ing” Myers’ weapon. As to access may gain Myers Azzarano then left in United States noted Supreme Court Bennett. speak went downstairs Chadwick, 97 S.Ct. 433 U.S. interval, Myers remained that During (1977): L.Ed.2d 538 ar backup officers who by two “covered” in all cus- lurking dangers potential ar Azzarano had immediately after rived warrantless arrests make todial bag was Myers. The and handcuffed rested immediate items within searches away three feet from approximately requir- without area reasonable control the officer Obviously, if zipped closed. arresting to calculate officer ing the the arrest at the time worried been weapons or destructible probability bag black could reach the may involved. be evidence by two handcuffed and covered though 14-15, Chadwick, at officers, have searched the he would omitted). (internal quotation Myers’ waist bag when he searched black arrest, where, an an Thus, in the heat of Instead, enough to felt secure band. item is particular concludes officer speak go downstairs Myers and leave ex- grasp, courts are arrestee’s within Indeed, Azzarano did not with Bennett. subsequently deter- tremely reluctant bag because he opened the that he state un- conclusion was that the officer’s mine access to it. Myers had was concerned suppress whatever thereby reasonable concerned about that he was testified He This ex- found. may have been evidence weapon behind leaving possibly and farther Queen the result plains her minor child. Bennett and home with in Abdub-Sáboor why the court explains license to cry a far from Chimel’s This is uphold such seizures it would stated be used to weapon that could Chimel, for a search under being incident to arrest as arresting injure the escape, an effectuate objective [to conclude] basis some “absent earlier, arrest was effectuated 27. As noted application explaining the inconsistent ground Chimel, suggest that a to the was ordered we do not when mean offi- be bound the arrest had reviewing court must If gunpoint and handcuffed. neces- valid, about the Myers' conclusion waist- on-the-scene cer's frisk of the initial been environment sity regardless of the of a search clearly be characterized could band extent to which the arrest occurs or where under Chimel. incident an search actually incapacitated and un- arrestee is police control. der offieer(s) destroy or evidence. Had he der certain they circumstances when fear along bag searched the with the waistband accomplice may lurking nearby. be See downstairs, going we (3d before would have a Felsing, Sharrar v. 128 F.3d 810 Cir. 1997). different set of circumstances to consider Nothing on this suggests record against teachings of the Chimel and its any Azzarano was concerned that con However, progeny. go he did downstairs federate lurking was about. explanation for seizing bag his the Moreover, testimony Azzarano’s estab leaves us confident that the seizure was lishes that he was not initially concerned meaning “reasonable” within the bag about the even when he went back Fourth Amendment it because was not upstairs Myers. and returned to He did Myers’ incident to arrest. not return to bag. search the Azzarano agree We with the district con- court’s “I upstairs testified: went back to out find bag [Myers’] clusion that the was “within what this —what the name ac defendant’s possession immediate control and when was, tually had, fact, because he given App. Azzarano observed him.” at first App. name.” (emphasis at 76a add fake added). (emphasis 171a The district court ed). only open decided to the also stated that “at this moment [referring bag Myers because appeared to look at it Myers], when Azzarano saw Azzar- first in a manner that suggested he did not ano still felt someone else could be in want police the to see what was inside. the primary purpose home and his , He stated: “[t]he defendant’s demeanor concern weapon was obtain the and to led me to believe that there something get it out of the house where Bennett and bag that he didn’t want me to see. children lived.” Id. At point, I opened bag, and dis arrested, That is when covered this handgun.” Id. at 77a. More Myers’ is when waistband was over, since he returned to ques searched. that is not when the name, tion him about his not to search the bag was searched. bag The search of the bag, the record establishes that Azzarano’s later, came sometime after Azzarano left concern for danger gun posed downstairs, and went leaving Myers only arose opened after he bag. restrained, physically incapacitated, and Therefore, this search can not be sustained under the control of two armed offi- as a search incident to an arrest. See cers. Chimel, 762-63, 395 U.S. at 89 S.Ct. 2034.28

Moreover, analysis the district court’s separate conflates two and independent III. justifications for searching incident to an arrest. conducting addition to a search concluding pause Before amplify we protection of the officer or pre- point we made at beginning of our vent the destruction of evidence the briefly discussion. We mentioned the con- may protective also conduct a “sweep” un- imperative stitutional that we not overlook Olson, The Dissent notes that "Ms. Bennett's resi- Minnesota v. 495 U.S. 110 S.Ct. dence property was not searched. No of hers (1990). 109 L.Ed.2d Accordingly was seized. She charged was not arrested the fact property that his rather than his is, crime.” Dissent at 279. That of host’s was seized is as irrelevant fact course, Myers clearly irrelevant. had a rea- that he was in someone else’s home when his expectation privacy sonable of while in Ben- expectation own privacy reasonable Government, nett’s home and neither the nor violated and he was seized. suggests the district court otherwise. See effects, sons, houses, only in the ... and reviewing police role when our institutional Beck, police.” 379 U.S. exclusionary discretion applying conduct (internal Ohio, quotation marks Mapp rule. See omitted). nothing new the Given “[T]here 6 L.Ed.2d concern, merits that the Constitution sometimes point realization colleague’s our course, are, criminality mindful in order few insulates amplification. We of us all.” Arizona exceedingly protect privacy difficult nature the the of 1149, Hicks, 321, 329, must 107 S.Ct. police officers 480 U.S. decisions v. split-second for, Thus, respect scold- our The L.Ed.2d 347. daily a basis. Dissent 94 make on of, judges “[a]ppellate the difficulties against appreciation ingly cautions justify in secure do not days dangers cloistered of law enforcement spend their [who] Mar- constitutional duties by surrendering United States our buildings guarded strangers and the shals, police from protected officers. doors electronically controlled by

public century ago, the Su- half a More than elevators[,]” decisions reviewing arrest preme Court warned: at 284. police officers. Dissent of trained Amendment, of the Fourth point us, colleague dissenting reminds As our by grasped is not zealous which often investigation in expertise the no “[w]e have officers, that it denies law enforce- is not altercations. We domestic of volatile inferences support ment the of the usual the regarding experience no first-hand from evi- men draw which reasonable by persons presented violence threat of in protection requir- consists dence. Its po- dispute in a domestic when involved by drawn inferences be ing those peacemak- act as a attempts to lice officer magistrate instead detached neutral and fury.” Id. calming their er in by engaged officer being judged enterprise of great competitive in often sentiments have Although such ferreting never out crime. appeal, we must popular deal of training to seduce lack of allow our States, 10, 13- v. United Johnson judicial abdicating our function us (1948). into 92 L.Ed. 436 68 S.Ct. criminal evidence of preserving the sake understandable concerns Despite the officers activity. It is obvious by our esteemed voiced dissent contemplative enjoy the secure and do not do not believe colleague, we distinguished judges do judges, and atmosphere afforded this arrest or search uphold can that we just obvi- It is patrol city streets. not to the Fourth doing violence without policing. not trained in judges are ous that are that we sworn guarantees Amendment Nevertheless, mandates Constitution Fisher, “effec- we stated uphold. As of the le- ultimate determination that the only be main- ... can law enforcement tive by judges, be made of an arrest gality 496 F.2d respect for the law.” by tained by police officers. at 342. al- may not public a concerned Though Conclusion IV. it, has Supreme Court ways appreciate above, forth we reasons set For all hardly otherwise it can be explained that court erred the district subjective conclude that “If the Constitution: under sup motion to denying the defendant’s alone arresting officer] good [of faith Therefore, we physical evidence. test, press protections were the court of the district the order and will reverse evaporate, would Fourth Amendment and re suppress motion to denying the per- in their be secure people would proceedings mand for further consistent I opinion.29 with this In reviewing a district findings court’s facts, historical “give we must weight due ALARCON, Judge, Senior Circuit to inferences drawn from those facts Dissenting. judges resident and local law enforcement respectfully join I dissent. I cannot States, officers.” v. Ornelas United Majority’s opinion for several reasons: 690, 699, U.S. 134 L.Ed.2d Majority First. has failed to We must also discuss construe the dispositive light record in issue raised most favorable to the Lawes, appeal: this “the Government. United Whether warrantless en- States v. (2d try Henry Cir.2002); F.3d to 3203-B Avenue was conduct- United States (5th Runyan, ed without cause to believe Cir. 2002); Cook, crime 82, had been committed and without United States v. (1st Cir.2002). exigent circumstances.” Instead, Majority summarily: states “totality of the circumstances” in- “Although we conclude that Officer Azzar- probable forms a cause determination. Il- entry ano’s initial into the residence was Gates, 213, 230-31, linois v. 462 U.S. justified, probable we hold there was no (1983). 76 L.Ed.2d 527 Myers.” Maj. Op. cause to arrest at 255. evaluating totality of the circumstances later, I explain As will ig- this conclusion case, given a may court not consider Supreme nores recent authority Court and each fact in isolation. United States v. is inconsistent the law of this circuit Arvizu, 534 U.S. 122 S.Ct. 750- which holds that entry a warrantless vio- (2002). 151 L.Ed.2d 740 In United lates Fourth Amendment unless the Arvizu, rejected States v. the Court probable have cause even in the Ninth Circuit’s “divide conquer analy- exigent circumstances. sis” that considered each circumstance I Second. would affirm the district separately to determine whether it was opinion court’s because the record shows susceptible of an explanation. innocent Id. that, prior entering, Officer Azzarano at 751. per- cause to believe that a Majority concluded, has in alterna son within the residence was armed with a analyses, tive that Officer Azzarano did not weapon fighting with a resident. Myers, cause to arrest Exigent Third. justified circumstances “even if we arguendo assume entry protect warrantless Ms. Ben- lawful, arrest was we would still find that nett from death injury or serious from a gun should suppressed have been man armed with a gun. subsequent search was not incident to Fourth. The record demonstrates that Maj. Op. the arrest.” Clearly, at 266. Myers’s backpack search of was inci- conclusions, least one of conflicting these dent to a lawful arrest. not the entire Majority opinion, is dictum.1 argues also 18 U.S.C. Singletary, United States v. 29. 268 F.3d (3d § 922(g)(1) Cir.2001), is improper- unconstitutional as it reject and we therefore it with- ly proscribes purely out possession intrastate discussion. of a requisite firearm and therefore lacks the nex- us to "Indeed, interstate commerce. time the Court relies on alter- argument clearly holding foreclosed reasoning, analyses our native both are not neces- female daughter is the persuaded has call. She the record My review clearly is the oldest of apartment. court did not inside the She district that the me Azzarano McKnight appeared that Officer Ms. concluding six children. err in- “reasonably trustworthy frightened. aware of be a pru- to warrant ... sufficient formation Azzara- McKnight informed Officer Ms. [Myers] had believing that man in dent boy that “her mom and her mom’s no committing offense.” or was committed arguing and hav friend were the house 89, 91, Ohio, Beck boyfriend ing fight and that her mom’s the rea- Because L.Ed.2d gun.” McKnight’s Ms. was armed with information obtained trustworthy sonably distraught and her demeanor statement McKnight from Diane by Officer with reliable in provided Officer Azzarano him to believe sufficient to warrant boyfriend was formation that her mother’s presently threat- man was that an armed safety armed with a threatening her while victim, the officer’s safety of his ening the paid, gun. an informant is not “[WJhere supported entry into the residence tipster but instead an identified unknown exigent circumstances. probable cause voluntarily eyewitness to a crime who re residence cor- within the His observations police, to the ports his observations that he received the information roborated person may be such trustworthiness also McKnight. The record from Ms. v. presumed.” Commonwealth Weiden court did the district demonstrates (Pa.1988). See also moyer, 539 A.2d 1291 the search concluding not err Valentine, F.3d States v. United a lawful incident to Myers’s backpack was (3d Cir.2000) (discussing informant 354-55 arrest. information reliability). Based on this alone, reasonably believe an officer would II facing a McKnight’s mother was that Ms. most favorable to the light in the Viewed Thus, injury. bodily threat of serious Government, record demonstrates existed to arrest probable cause dispatch Azzarano received radio Officer Azzarano crossed before Officer gun” with a was involved person that “a threshold. companion” a female “a disturbance that “the warrantless Myers contends Avenue, Apartment B. Henry at 3202 con- Henry Avenue was entry of 3202-B go to assignment to he received When probable cause to believe ducted without location, Azzarano a block Officer and without committed crime had been so away. He was and a half or two blocks Therefore, every- circumstances. exigent to that he did not have close to the scene arrest and subse- thing that followed—the emergency lights and siren. activate his unlawful, gun of the quent seizure Avenue, Henry At 3202 —were suppressed have been gun and the should female, Diane an adolescent observed reason, The Ma- without more.” for this two standing approximately McKnight, dispositive to this jority has failed address B. doorway Apartment feet outside consider It has failed to 911 contention. the source of the McKnight Ms. case, Rough Precedent Treatment and are Sometimes sary decision of the to the Thus, by adding Decision-Making, & additional 80 J. Pat. dicta. Circuit therefore Federal decision, (em- (1998) is effective- Soc'y its the Court reasons for Trademark Off. ly undermining precedential value the added) (internal what quotation marks and phasis & Wil- may Matthew F. Weil opinion have.” omitted). citation Rooklidge, Stare Un-Decisis: liam C. McKnight’s whether Ms. information was Without Myers, cause to arrest sufficient to cause Officer Azzarano rea- Officer entry Arrazano’s warrantless in the sonably believe that her justified mother was residence would not be under the with an assault an pursuant threatened armed Fourth Amendment to Kirk v. Louisiana, Majority U.S. -, has also man. The failed to re- (2002) spond Myers’s that an curiam), contention insuf- (per 153 L.Ed.2d 599 showing exigent Volz, ficient circumstances Fisher 496 F.2d at 339.2 I compelled entry was made that to save know of no case that proba holds that the lives. ble cause to make an arrest that is neces sary justify entry warrantless disap “[Pjrobable indispensable cause is an el- pears steps as soon as an officer into the ement for a of a warrantless search dwell- Majority residence. The has cited none. ing exigent even circum- If, as Majority appears to have con Volz, stances.” Fisher v. cluded, Officer Azzarano did not have (3d Cir.1974) (internal quotation marks probable cause to believe a crime was be omitted). McKnight’s report Ms. that a ing prior entry committed to his into the man gun armed with a was involved in a apartment, it would duty be our to reverse fight with her was sufficient mother suppress denial of the motion to person warrant a of reasonable caution to reason, gun seizure of the “for that without conclude that an offense threatened more,” requested by Myers. McKnight’s the life of Ms. mother and endangered “[tjhe safety of her five brothers The Fourth protects Amendment was on-going. right sisters Her information people to be secure in their provided houses, with probable persons, Officer Azzarano papers, effects, cause to enter and arrest against without a unreasonable searches and sei- Const, warrant. zures.” U.S. amend IV. Evidence seized as the result of an unreasonable Majority The has concluded that “Offi- search and seizure suppressed. must be cer entry Azzarano’s initial into the resi- Ohio, Mapp 643, v. 654-55, 367 U.S. justified.” Maj. Op. dence was at 256. The 1684, S.Ct. 6 L.Ed.2d 1081 determined, however, Majority has also probable matter, “there was no ar- In this question the narrow we rest Myers.” Majority Id. The has not must decide is whether the warrantless explained how Officer Azzarano’s warrant- arrest of in Ms. Bennett’s resi- entry “justified” dence, less can if be he did not and the search person of his con- probable Myers. cause to arrest thereto, ducted anas incident were unrea- 19, 2. Majority In footnote relies on Sheik- circumstances. The Seventh Circuit noted McClellan, (7th challenge that “Sheik-Abdi Abdi does not v. 37 F.3d 1240 law- Cir. fulness of the officers’ in his 1994) home.” support finding in of its that Azzarano fact, Id. at 1245. In Sheik-Abdi ”concede[d] probable did not have cause to arrest while home, that while in the presum- the officers conceding entry "justified.” that his The ably prevented any could have breach of the Majority that "[t]he states court in Sheik-Abdi peace likely that occurred or as to occur.” distinguished exigent between circumstances Id. The Seventh Circuit's decision in Sheik- justify entry would a warrantless into a support Majority’s finding Abdi does not home, probable cause needed for arrest.” entry that a "justified” warrantless can be 265, Maj. Op. p. Majority’s at n. 19. The probable exigent without cause and circum- misplaced. reliance on Sheik-Abdi is The stances, required Supreme Court in Sheik-Abdi decision does not involve the va Kirk v. Louisiana and this circuit’s decision in lidity entry exigent of a warrantless based on Fisher v. Volz. entry justified the Fourth Amendment. clusion that sonable under violates Payton Supreme was not searched. Ms. Bennett’s residence Court’s decisions in New York and Kirk v. Louisiana. property No of hers was seized. She was charged not arrested or crime. discussion of Steagald v. Majority’s York, Payton 573, States, v. New U.S. United 204, 101 S.Ct. 1371, (1980), (1981) 63 L.Ed.2d 639 68 L.Ed.2d in footnote 9 of Supreme Court held that a New York rebanee on Kirk v. opinion its my refute statute that authorized the warrantless Louisiana and this court’s decision in entry private and nonconsensual of a resi- Fisher v. Volz puzzling. in- Steagald dence to make an arrest on based a completely distinguishable volves factual felony commit- cause to believe been legal analysis. scenario and Supreme Id. at ted was unconstitutional. 100 Court summarized question presented S.Ct. 1371. The Court stated it would in Steagald v. United States in the to it question not reach the whether a warrant- following words: “[T]he narrow issue be- entry less to effect arrest based on fore us is whether an arrest warrant —as accompa- cause is reasonable opposed to a adequate search warrant —is by exigent nied circumstances because protect the Fourth Amendment inter- “none of the York courts relied on New persons warrant, ests of not named Id. at 582-83, justification.” such 100 when their homes are searched without “Ac- The Court commented: their consent and the absence exigent cordingly, we have no occasion to consider circumstances.” Id. at 101 S.Ct. 1642. emergency dangerous the sort of or situa- The Court held that “warrantless searches ‘exigent tion described our cases as impermissible of a home are absent con- justify circumstances’ that would a war- circumstances.” Id. at sent exigent or entry purpose rantless into a home for the (Emphasis S.Ct. 1642. or search.” Id.

of either In Steagald, police officers entered passage, S.Ct. 1371. In a later the Court Steagald’s residence without a search war- stated: rant, consent, exigent circumstances to apply equally “In terms that to seizures Ricky Lyons. serve an arrest warrant on property persons, and to seizures of Lyons Steagald’s was not residence. the Fourth Amendment has drawn a Nevertheless, proceeded the officers firm line at the entrance to the house. Steagald’s conduct a search of residence. circumstances, exigent Absent that They discovered controlled substances. may threshold not be crossed without Steagald was arrested and indicted on fed- Id. at

warrant.” 1371. S.Ct. charges. Steagald suppress eral moved to Louisiana, in Kirk v. recently, More in the evidence seized his home on the Payton paraphrased in holding ground Court its that the officer did not have a Payton New York as follows: “As they makes search warrant when entered his resi- dence. Id. 207-08, plain, police officers need either a warrant S.Ct. 1642. The plus exigent probable in Supreme Steagald cause circum- Court noted that “the in entry stances order to make a lawful Fourth Amendment claim here is not be- home.” Id. at 2459. Instead, into a (Emphasis ing by Lyons. raised the chal- Majority appears by person Because lenge to the search is asserted have concluded that not in convict- Officer Azzarano did named the warrant who was not have cause to cross the en- ed on the basis of evidence uncovered dur- residence, search of the residence for Ricky ing trance Ms. Bennett’s its con- (Em- appeared type fight some 1642. “what be Lyons.” Id. at added.) occurring on the second floor.” Officer The Court reversed phasis did not “police.” Azzarano called out He in Steagald hold- judgment Fifth Circuit’s top At of the response. receive a had a the officers that the fact ing stairs, Lydia Officer Azzarano encountered justify arrest did warrant for that she “seemed Bennett. He testified Id. at Steagald’s residence. search just that she had upset to me and seemed Supreme con- Court type involved in of altercation.” that, been some absent consent or Steagald in cluded “demeanor circumstances, He further testified that her police cannot exigent with someone who seemed to be consistent search of a resi- conduct warrantless dispute. type involved in some had been to seize the homeowner’s in order dence shaky, upset.” she seemed Her voice was 101 S.Ct. 1642. Id. at property. Here, not conduct a search police did Azzarano asked Ms. Bennett Officer they residence nor did of Ms. Bennett’s person up- who had been where the Thus, belonging to her. property seize replied was no stairs with her. She there no relevance to the issues Steagald has upstairs one with her. Based on Officer presented in this case. police experience responding Azzarano’s calls, Majority’s response conclusion agree domestic-dispute

I with the her had, fact, entry “justi- suggested Azzarano’s to him that “she that Officer totally grounds. type dispute Offi- on discrete been involved some fied” but undisputed testimony Az- nearby.” dem- there was cer Azzarano’s someone he received information zarano was aware that Ms. Bennett’s onstrates exigent cir- informant statement that had been alone was not from a credible she entry compelled a warrantless cumstances true because he had heard at least two voices, fighting footsteps. man was because an armed and more than one set of response mother. This information false the informant’s He inferred from her to demonstrate that also was sufficient she was afraid that would retaliate to arrest complained of his conduct. there was she commission of a serious crime. for the suppression As of the date of the hear- I district court that agree also with the ing, Officer Azzarano had been a member the residence and arrest failure to enter Department Philadelphia Police these circumstances would time, under years. During three of Officer grave dereliction been responded to at least one domestic distur- duty protect safety of his Azzarano’s day. bance call a He testified that such record, viewed fellow citizens. very dangerous anger calls are because the Government, light favorable to the most persons engaged in alterca- level of the that Officer Azzarano had demonstrates you tion is elevated and “lots of times don’t a serious crime probable cause believe exactly you’re walking know what into.” cir- exigent and that being Arvizu, was committed Supreme United States v. entry an immediate required cumstances totality instructed that of the Court report. McKnight’s based on Ms. officers circumstances standard “allows experience special- draw on their own Ill training ized to make inferences from and cumulative informa- Azzarano deductions about the When Officer entered might lot tion available to them that well apartment, heard raised voices and a he person.” elude an untrained S.Ct. at which he characterized movement (internal omitted). marks quotation 750-51 IV reasonable, Thus, expe- it on his based In a per- well-reasoned discussion of the violence, investigating domestic rience tinent facts and the applicable legal princi- for Officer Azzarano to infer from her ples, the district court held that Officer condition, her denial that distraught cause to believe her, anyone upstairs that she that a domestic in prog- disturbance was revealing Myers feared that where involving gun ress a man armed with a hiding might endanger safety. her exigent justified these circumstances Azzarano’s own cor Officer observations entry warrantless I am residence. McKnight’s information roborated Ms. persuaded that each of the district court’s that her mother was involved in an alterca findings factual supported by is evidence in receiving tion with an armed man. After the record and that it did not commit deceptive reply, Bennett’s Officer Az- Ms. legal errors. Myers hiding partial zarano saw behind ly open bedroom door. The fact that the

person attempting behind the door was A.

avoid detection caused Officer Azzarano to The district court determined that Offi-

conclude that there was no reason for cer Azzarano had cause to arrest if, fact, Myers “to hide from me it was Myers for the crime of simple pur- assault just simple argument par between two 2701(a)(3) (2000). § suant to 18 Pa.C.S. Thus, McKnight’s ties.” based on Ms. 2701(a)(3) provides person Section that “a request police protect for intervention to guilty is if ... attempts by of assault gun, her mother from a man with a and his physical put menace to another in fear of observations, independent Officer Azzara- bodily injury.” imminent serious At the gun Myers no aimed his and ordered arrest, Myers’s time of officer had step him to out from behind the door. right a person simple to arrest out, Myers stepped carrying When he was place pres- assault that did not take in the backpack. a black Officer Azzarano or ence of the proba- officer “he has dered to lie down on the floor. ble cause to believe that the defendant has so, Myers complied doing placed and while (relating violated section ... 2701 to sim- backpack approximately on the floor assault) ple against spouse ... his or other away body. three feet from his Officer person with whom he resides or has for- Myer’s Azzarano handcuffed hands behind 2711(a) merly § resided.” him Pa.C.S. placed his back under arrest for (2000). An may person domestic officer not arrest a assault. Officer Azzarano de Pennsylvania observing fined the under section 2711 “without first crime domestic type physical injury assault as “assault or some recent to the victim or threat [Myers] level towards someone who had a other corroborative evidence.” 18 Pa.C.S. 2711(a) (2000) previous relationship § with.” Az- It is Myers’s quite zarano checked waistband to see if true that Officer Azzarano did not Bennett, carrying weapon. he was a concealed see assault Ms. nor did he carrying weapon physical injury. was not on his observe recent The rec- ord, person. however, replete with corroborative ing.” Maj. Op. 3. Nor were and Bennett "in the middle See at 264 n.17. dinner, peaceful sharing jokes laugh- of a evidence, reweighed findings, that to Officer Azzarano known evidence light the record failed to that consider an inference support would Government, in to the con most favorable menace to by physical “attempted] clearly principles of established ser- travention in fear of imminent put[Ms. Bennett] review. See United States appellate of Pa.C.S. injury.” bodily ious (3d F.3d 440-41 Cir. Igbonwa, 120 2701(a)(3). § 1997). Majority appears have also The above, arresting before As summarized required quantum of evidence confused the was aware Azzarano Myers, Officer for an ar cause to demonstrate circumstances: following heavy placed burden on the rest with the Department Philadelphia Police 1. present sufficient evidence Government call that a telephone received had persuades a crime that each element of in a involved distur- gun person with of the defen guilt trier fact of the companion. bance with a female Draper doubt. beyond dant a reasonable told Ms. Azzarano was 2. Officer States, 307, 312, 79 v. United boy- mother her that her McKnight 329, 3 L.Ed.2d 327 fight in a and the involved friend were gun. armed with boyfriend was B. heard what sound- Azzarano 3. Officer concerning findings court’s The district second floor. fight on the ed like prob- that the circumstances demonstrated Azzarano observed Officer 4. When simple for an arrest for assault able cause Bennett, upset be as appeared to Ms. she read as Pennsylvania under law follows: in an altercation. had been involved she Now, with reference to the arrest the whereabouts 5. asked about When that had officer information dispute, in the Ms. participant of the other time, Pennsylva- to him at that available had been falsely represented she Bennett as— nia defines an assault Statute alone. attempt an among things, other in in- prior experience Based on his 6. intentionally, knowingly cause or Az- disputes, Officer vestigating domestic causing bodily injury to an- recHessly response from her false inferred zarano includes attempts other and also respond truthfully afraid to she was that put menace to another in physical fear afraid of retribu- she was violent because bodily injury. serious tion. regard, In I find that there this respond when Officer 7. did not simple presence assault ongoing po- his as a announced Azzarano and, therefore, con- officer, par- hid lice and instead behind to ar- clude that he tially door. open bedroom ongoing assault rest backpack just holding a Myers was time, occurring pres- it was his since under arrest. prior being placed totality of is based on the ence. This provid- totality of these circumstances I men- the circumstances Myers had ed corroborative evidence tioned, including report, the 9-1-1 in fear of attempted place Ms. Bennett McKnight, the state- conversation bodily injury. they McKnight said were ment boyfriend has a fighting and that findings, rejecting the district court’s raised voices credibility gun, that he heard the its Majority has made own sug- physical and the movement which altercation. The upstairs most that we fight, gested ongoing an his conversation can from the descrip- conclude officer’s pres- and her denial of his with Bennett tion of apartment the state of the is that demeanor, also her and that ence and added.) it messy.” (Emphasis was (sic) array in and that the the house was Maj. Op. at 260. hiding and defendant was she denied So, conclude, I that he was there. Majority’s The finding apart- that therefore, that he did have the “messy,” ment was disarray, and not in simple cause to make an arrest for as- violates the rule that appellate can- courts at that sault time. evidence, reweigh engage or in fact-finding. Igbonwa, 120 F.3d at 440-41. Majority appears The to have concluded Officer Azzarano’s description of the condi- “fighting” as the term used Ms. apartment tion of the undisputed. describing ongoing in McKnight crime Majority’s The finding ignores also Officer being against committed her mother refers daily Azzarano’s experience investigat- solely “physical strug- to a altercation or ing disputes prior domestic and his obser- Maj. gle.” Op. “fight,” at 259. The term vations of the condition of residences however, disagreement.” includes “a verbal 2701(a)(3) where violations of section had Third New International Dictio- Webster’s occurred. nary undisputed It is voices, quoted language The ignores Officer Azzarano heard raised also ob- condition, distraught served Bennett’s physical Ms. fact that evidence of a altercation upstairs and saw that area inwas not required prove is a violation of disarray, a struggle. as there been 2701(a)(3). section That crime is commit- He had a person also been informed person ted if a attempts put another in presumed whose information is to be trust- fear of bodily injury by imminent serious worthy gun. armed 2701(a)(3). physical § menace. 18 Pa.C.S. independent Officer Azzarano’s visual and physical injury Proof of a is not required. auditory perception of these circumstances Majority The states that “there is no involving armed man would lead a rea- Myers pointed gun evidence that at Ben- person sonable to conclude that the infor- otherwise, nett Azzarano’s mation he had received from Ms. nothing supports the inference that McKnight was accurate and that there was thought Maj. Op. Azzarano he had.” cause to believe was at- tempting place fact, Ms. Bennett fear of 257. In testified bodily injury. imminent serious he arrested for “domestic assault” because of his “terrorist threats” with a Majority finding a factual has made handgun. Majority The refusal of the upstairs that the area where Officer Azzar- accept undisputed Officer Azzarano’s testi- ano encountered Ms. Bennett was not in drew, mony concerning the inferences he disarray. contrary The district court’s circumstances, totality based on the finding that in disarray the area was contrary duty appellate judges to our undisputed based on Officer Azzarano’s testimony. Majority light to construe the record in the most states: reviewing favorable to the Government

“The record is suggestion devoid Cook, suppress. the denial of a motion to disarray the level of was excessive point to the being probative of a 277 F.3d at 84. in Supreme Court’s clear violation

C. Arvizu, in States v. we struction United in evidence the rec- reweighing to this court’s admonition should adhere also minimized what ord, has Majority decision is that “when the district court’s only thing saw, finding that “the testimony on that is coherent and based presence was in Myers [Azzarano’s] did internally inconsistent and plausible, not Maj. at 257. This Op. behind a door.” hide evidence, by contradicted external not with Officer inconsistent finding is also finding can almost never be there testimony. As Offi- undisputed Azzarano’s F.3d at 440-41 Igbonwa, error.” clear stairway, Azzarano ascended cer (internal citations marks and quotation behind to conceal himself Myers attempted omitted). not The district court did clear doorway. The threat of open partially concluding that Officer Azzarano ly err from an Ms. Bennett imminent harm to Myers probable cause to believe continued— cease. It armed man did not 2701(a)(3) of section committed violation Azzarano as an additional but with Officer presence. in the officer’s Of- Myers’s menacing behavior. victim of testified: ficer Azzarano V hiding I the defendant was When saw door, increased my fear level behind the district court denied the motion to had, in something I greatly. figured persuaded by it was suppress because happened something something totality of the circumstances fact— there would be no happening and Azzarano had cause to arrest if, in from me backpack for him to hide Myers reason and that the search of the fact, simple argument between it was a The Ma was incident to a lawful arrest. parties. jority two has that Officer Azzarano concluded not have cause to arrest did observation, if any crime.4 This days clois- Appellate judges spend their correct, the warrantless would invalidate buildings guarded Unit- tered in secure entry of the residence and eliminate the Marshals, protected from ed States need to determine whether the search of public by electronically strangers and the backpack incident to a lawful ar We have controlled doors elevators. In a discussion which lacks rest. expertise investigation in the volatile no because it is unneces precedential value no We have first- domestic altercations. decision, sary to and casts doubt on its its regarding the threat experience hand conclusion that Azzarano did not have by persons involved presented violence Major Myers, to arrest probable cause dispute when a officer domestic ity opined has that the search of the back in calm- attempts peacemaker act as a pack Myers’s was not incident to arrest. in a ing fury. engaging Instead of their that, Majority of an of- states because reductio ad absurdum dissection totality of the cir- was handcuffed behind his back and cov- ficer’s recitation of the officers, making an ar- ered two armed cumstances confronted conditions, backpack was not accessible to be- life-threatening rest under above, holding dwelling supported by probable must be Majority's As discussed starkly determination exigent inconsistent with its cir- cause "even in entry did that the of the residence Volz, warrantless cumstances.” Fisher v. violate because it the Fourth Amendment omitted). (internal quotation marks entry "justified.” of a A warrantless search [nor] cause “he was neither acrobat was not incident to his arrest be- Maj. Op. (quoting cocaine, Houdini” at 267. United cause “the hidden behind a dress- Abdul-Saboor, F.3d 669 drawer, States v. er was inaccessible to him because (D.C.Cir.1996)). quoted language he was handcuffed and in presence the In from Abdul-Saboor is dictum. Abdul- several officers.” Id. at 1097. Saboor, the Circuit affirmed the deni D.C. The Majority has failed to cite deci- In suppress. al of a motion to Id. at 666. supports theory sion that its that the fact matter, the record showed the person that a is handcuffed and covered the search was conducted defendant after police more than weap- one officer makes a in sitting

was handcuffed and on a chair away on three feet inaccessible. Its dic- hallway about four feet outside the bed tum contrary to that effect is to the ex- custody in room door of at least one press holdings of four of our sister circuits. police armed officer. Id. at 669-70. The held in that the D.C. Circuit Abdul-Saboor undisputed evidence, when viewed subsequent search the bedroom was in light most favorable the Govern- to an lawful search incident arrest. Id. at ment, shows that Officer Azzarano decided Thus, supports Abdul-Saboor backpack to search the when he noted that conclusion of the district court here that Myers kept looking bag at the and “he was backpack the search of the was accessible getting more and more nervous as he an- arrest, and incident to a lawful my questions. swered His voice was more notwithstanding the fact he was hand shaking halting.” Officer Azzarano custody cuffed and of an officer. further experi- testified based on his upheld Other circuits also searches ence as an officer defendant’s de- “[t]he an conducted as incident to an arrest meanor led me to believe there was where the defendant was handcuffed and something in bag that he didn’t want officers. In Unit- me to see.” As discussed the authori- (7th Queen, ed States v. 847 F.2d 346 above, ties cited whether or not Cir.1988), the Seventh Circuit affirmed the get could bag open to the it is not suppress denial of motion to a loaded in determining relevant whether revolver seized from the floor of a closet as search was incident to the arrest. dis- although incident to an defen- cussing question accessibility at the dant’s hands were handcuffed behind his search, time of a the D.C. Circuit reasoned guarded by back and he was two armed Lyons, as follows United States v. Investigation agents. Federal Bureau of (D.C.Cir.1983): F.2d 321 Id. at 353. dangerous; Custodial arrests are often Silva, In United States v. 745 F.2d 840 decisively must act and cannot (4th Cir.1984), the arrestees were hand- expected punctilious judg- be to make backs, they cuffed behind their and as sat regarding ments what within bed, aon motel room an officer searched a just beyond grasp. what is the arrestee’s locked, zippered bag which contained two Thus, up- searches have sometimes been firearms and ammunition. Id. at 847. hindsight might suggest held even when upheld The Fourth Circuit the search as the likelihood of the defendant incident to lawful arrest. Id. reaching question slight. the area in Palumbo, In United States v. F.2d (8th Mason, Cir.1984), Eighth (citing Circuit re- Id. at 330 v. United States (D.C.Cir.1975)). jected 1122, 1125-26 appellant’s argument that a F.2d

CONCLUSION LANNING; Altovise Natsu Catherine court’s denial the district I affirm would Kelly Dodson; Love; Denise Belinda Based on Ms. suppress.

of the motion Lynne Dougherty; Zirilli report, when McKnight’s residence, Bennett’s Ms. entered that she was PENNSYLVANIA to believe SOUTHEASTERN bodily harm AUTHORITY imminent TRANSPORTATION threatened Evans, (“SEPTA”); entry Richard Individu- Azzarano’s man. Officer armed ally capacity was official his without warrant apartment into the Department circumstances —to of SEPTA Police justified by exigent Chief also from and her children Bennett protect Ms. United States America facts he observed injury. The physical confirmed apartment entering the after McKnight report of eye witness Ms. Pennsylvania Southeastern committing a serious was Transportation crime. Authority Myers’s search of Azzarano’s Lanning; Natsu Altovise Catherine to a

backpack incident lawful Kelly Love; Dodson; Belinda Denise 2701(a)(3), based for a of section violation Lynne Zirilli, Appel- Dougherty and information McKnight’s reliable on Ms. lants committed being crime was that a serious No. 01-1040. residence, the corroborat- within the within perceived Ms. ing facts the officer Appeals, States Court of United Myers’s conduct residence. Bennett’s Third Circuit. an constituted Officer Azzarano’s put Ms. by physical menace attempt 11, 2002.* Argued Feb. bodily in fear of imminent serious Bennett Decided Oct. Myers was injury. The fact that did and handcuffed custody of officers two as incident to the search invalidate

lawful arrest.

* rendered, being February prior opinion the Panel originally on This heard matter Roth, Mansmann, McKee, Judge Judges to include reconstituted before Judge appeal died was submitted. Barry. Mansmann Because notes appears on the record. We need not read may interesting Id. That be children.” any lines. The between officer testified nothing to do with but it has background, pointed gun that he his at the door and actions. See of Azzarano’s legality Myers ordered to come out. When asked Ubiles, 224 F.3d States United next, happened explained: what “At Cir.2000). (3d had no It is clear that he point, I myself was still and sis many of how brothers knowledge you, house and to be honest with did not had, many of them McKnight or how ters exactly going know what was on. I hand- only testimony at that address. The lived placed cuffed the male and him under ar- siblings and the the number of regarding testimony rest.” Id. 71a. There is no identity apartment lived in the of who Myers that Azzarano believed that “men- McKnight suppression at the came from anyone aced” from behind the door Moreover, App. at 59a. hearing. See pointing weapon at either Azzarano or appears it that none of her from the record Although certainly Bennett. the officer during home this or sisters was brothers prudently ordering Myers acted from incident.10 door, behind the this does not mean that arrest- properly could been assaulting Azzarano or either (3) under subsection simple assault ed officer, Bennett as he hid from the reasonably only if Azzarano believed finding contrary clearly errone- to such an menacing Bennett ous. in fear of imminent “put extent as to [her] following Azzarano offered injury!.]” 18 Pa.C.S.A. bodily serious account of to the district court: the arrest 2701(a)(3). § there was believed you THE COURT: You said arrested house, common sense gun in the you him him. What did for? someone suggests that one can menace point, At that I OFF. AZZARANO: (3) by meaning within the of subsection arresting him for domestic assault. waving gun during argument. See And, THE what does that COURT:

Case Details

Case Name: United States v. Clifton Myers A/K/A Samuel Jenkins, Clifton Myers

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 11, 2002

Citation: 308 F.3d 251

Docket Number: 01-3106

Court Abbreviation: 3rd Cir.