739 F.2d 137 | 4th Cir. | 1984
Lead Opinion
In January 1981, the defendant Litman was arrested and later indicted for conspiracy to distribute cocaine and possession of cocaine with intent to distribute. The defendant moved to suppress evidence discovered in the search of a shoulderbag that he was carrying when he was arrested. The district court granted the defendant’s motion, and the government appeals. We reverse.
On the morning of January 16, 1981, an undercover agent of the Drug Enforcement Administration arranged through an intermediary to buy five ounces of cocaine from the defendant. The agent was told that at 1:00 p.m. the defendant would arrive at a certain hotel room with the cocaine. Three other agents went to the hotel room to await the defendant’s arrival. At about 1:40 p.m. there was a knock on the door, and the agents admitted the defendant. The defendant, who was carrying a shoulderbag and a shopping bag containing a visible set of scales such as those used in narcotics transactions, immediately was placed under arrest. He was told to drop both bags and place his hands against the wall. Two of the agents pointed their pistols at the defendant while the third frisked him. Following the frisk, one of the agents holstered his pistol and searched both bags. Cocaine was found in the shoulderbag, and the scales, of course, were in the shopping bag.
Although the agents did not have a warrant. to search the shoulderbag, the government asserts that the search was valid as a search incident to arrest.
The Court held that the warrantless search of the jacket was valid as a search incident to arrest.
As did the district court in the instant case, the New York Court of Appeals relied on United States v. Chadwick to invalidate the warrantless search of the jacket. The Supreme Court said, however, that Chadwick did not apply because the search in Chadwick did not occur contemporaneously with or at the place of the arrest. 453 U.S. at 461-62, 101 S.Ct. at 2864-65. Further, it expressly rejected the argument that an article seized by an officer incident to an arrest cannot be subjected to a warrantless search because that article has been brought within the officer’s exclusive control. Id. at 461 n. 5, 101 S.Ct. at 2865 n. 5. The Court pointed out that' “under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his ‘exclusive control.’ ” Id.
We conclude that the holding in Belton controls our decision in this case. The seizure of the shoulderbag was contemporaneous with the defendant’s arrest and frisk and search followed instantly. See Belton, 453 U.S. at 460, 101 S.Ct. at 2864. Moreover, when the defendant dropped the bag as ordered, it was clearly within the area in which the defendant might have reached to grab a weapon or item of evidence.
Accordingly, the suppression order of the district court appealed from is
REVERSED.
. The defendant does not dispute that his arrest was lawful.
. The court did not suppress the scales in the shopping bag, they being in plain view.
. The Court emphasized that its holding was not based on the automobile exception to the warrant requirement of the Fourth Amendment. 453 U.S. at 462 n. 6, 101 S.Ct. at 2865 n. 6. See generally Chambers v. Maroney, 399 U.S. 42, 90
. At the suppression hearing, two of the arresting agents testified that the bag was ten to twelve inches from the defendant’s left foot. The defendant, on the other hand, claimed that the bag was three to four feet from his foot. As previously noted, however, the district court foiind that, under either version of the facts, the bag was within the defendant’s reach, and was certainly at least as accessible to this defendant as was the jacket in Belton to the defendant there.
Concurrence Opinion
concurring:
While I do not dissent from the holding, my essentially contemporaneous dissent in United States v. Porter, 738 F.2d 622, demonstrates why the rationale of the majority, deriving as it does from what I regard as an unsound reading of United States v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), does not command my support. Therefore, I concur specially to make clear my differences.
My reasons for doing so are the perceived exigencies evident here which were so indisputably lacking in Porter. The place of meeting between Litman and law enforcement officers was neutral ground, with the selection of which Litman appears to have had as much to do as those he was to meet. Porter, on the other hand, had accompanied her questioner to an airport police station.
Litman’s bags were first viewed and ren-. dered available for search at the moment of meeting, which coincided with arrest. Porter, on the other hand, was for a substan
It is on those grounds, and not because of some supposed, but in my judgment non-existent doctrine excusing application of heretofore applicable Fourth Amendment principles, that I conclude that the warrantless search of Litman’s bags was justified by exigency.
. It does not appear to be seriously contested that arrest put an end to any continuing nature of the consent to search Porter’s bag.