# United States v. Penny Porter > Court of Appeals for the Fourth Circuit · November 5, 1984 · 738 F.2d 622 URL: https://www.frixlaw.com/law-library/cases/9472346 ## Case - **Full name:** UNITED STATES of America, Appellee, v. Penny PORTER, Appellant - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** November 5, 1984 - **Citations:** 738 F.2d 622 - **Precedential status:** Published - **Opinion:** Dissent by Murnaghan - **Judges:** Winter, Russell, Widener, Hall, Phillips, Murnaghan, Sprouse, Ervin, Chapman - **Cited by:** 50 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472346 ## Opinion text MURNAGHAN, Circuit Judge, dissenting: I cannot join the majority in concluding that the warrantless search of Porter’s carry-on bag in the DEA office was lawful as incident to the arrest. Nor can I join the majority’s unfortunate decision to extend New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981) to control a factual setting fundamentally distinct from the circumstances of that case. I therefore respectfully dissent. While it is true that the search in Belton was upheld as a search incident to a lawful arrest, and not as a permissible search under the “automobile exception,” 453 U.S. at 462-3, n. 5 , 101 S.Ct. at 2865-6, n. 5 , the Court made abundantly clear that its decision applied specifically to “a lawful custodial arrest of the occupant of an automobile.” Id. at 460 , 101 S.Ct. at 2864 . The court’s opinion begins with: When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding? That is the question at issue in the present case. Id. at 455 , 101 S.Ct. at 2861 . The court reiterated that its opinion was designed to provide a straightforward rule for “the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.” Id. at 459 , 101 S.Ct. at 2863 . And the court’s holding reemphasized that its deci *628 sion related to a very particular factual setting: Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, [footnote omitted] he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. [footnote omitted]. Id. at 460 , 101 S.Ct. at 2864 . But the Belton court also warned that its holding did “no more than determine the meaning of [Chimel v. California, 395 U.S. 752, 763 , 89 S.Ct. 2034, 2040 , 23 L.Ed.2d 685 (1969)] in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel ease regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S. at 460, n. 3 , 101 S.Ct. at 2864, n. 3 . That Belton establishes an absolute but circumscribed rule permitting searches in a certain defined set of cases involving automobiles on the highway is no mandate that searches be treated in an equally absolute fashion in wholly different circumstances. Belton , in short, was decided as it was not simply because the events occurred in an automobile but because automobiles generally, or, more particularly, the vehicle in that case, possessed certain characteristics leading to application of the rule enunciated. Indeed, the critical facts explaining the outcome in Belton relate to the predicament of a lone police officer who had stopped on the highway an automobile, containing four occupants. The officer had pulled over the speeding automobile, legitimately arrested its four occupants on suspicion of possession of marijuana, and had required each to stand in a separate spot on the highway while he searched one of them. The presence of the automobile in such circumstances inherently raised concerns of exigency in light of the fact that “the opportunity to search is fleeting since a car is readily movable.” Chambers v. Maroney, 399 U.S. 42, 51 , 90 S.Ct. 1975, 1981 , 26 L.Ed.2d 419 (1970). See also Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949). Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. Preston v. United States, 376 U.S. 364, 366 , 84 S.Ct. 881, 883 , 11 L.Ed.2d 777 (1964). 1 Belton, therefore, provides no new guidelines for a search incident to a lawful arrest in a context apart from an automobile highway stop. Instead, Belton merely reaffirms the fundamental principle that in many cases such warrantless searches are justified “... by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control.” Preston v. United States, supra, 376 U.S. at 367 , 84 S.Ct. at 883 ; New York v. Belton, supra, 453 U.S. at 457-58 , 101 S.Ct. at 2862-63 ; Chimel v. California, supra, 395 U.S. at 764 , 89 S.Ct. at 2040 . “However, warrantless searches of luggage or other property *629 seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States ... or no exigency exists.” United States v. Chadwick, 433 U.S. 1, 15 , 97 S.Ct. 2476, 2485 , 53 L.Ed.2d 538 (1977) (emphasis supplied). Such principles make plain that the government’s sweeping argument that a valid arrest legitimizes any and all searches of the arrestee and the surrounding area, regardless of any other circumstances, is both unfounded in law, and ill-advised. In United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), the court prefaced its opinion with a reaffirmation of the distinction between a search of an arrestee’s person, and a search of the area within his or her control. It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been- formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee. Examination of this Court’s decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched. Id. at 224 , 94 S.Ct. at 471 (emphasis in original). There are rational and sensible reasons for treating the search of an arrestee’s “wingspan” differently from that of the arrestee himself or herself. Weapons or contraband concealed in the clothing or on the body of an arrestee remain accessible to the arrestee unless and until they are confiscated and physically removed from his or her reach. In contrast, there is an entire range of situations which might arise concerning objects arguably within an arrestee’s “area of control” which would not necessarily merit identical treatment. We therefore must be guided by the lack of absolutes governing searches of an arrestee’s “wingspan” outside the Belton highway stop context, by the requirement that all searches “be strictly circumscribed by the exigencies which justify [their] initiation,” Terry v. Ohio, 392 U.S. 1, 26 , 88 S.Ct. 1868, 1882 , 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 310 , 87 S.Ct. 1642, 1652 , 18 L.Ed.2d 782 (1967), and by the facts of the instant case. The lack of exigency here is readily apparent. Aside from law enforcement personnel, Porter was alone in the airport police station at the time of the search, not standing with companions at the side of a highway. Dawley, on the contrary, was not alone and unaided. The room in which he and Porter were in was merely one part of the airport police station, and Dawley’s testimony concerning his attempts to find an escort to take Porter to the ladies’ room showed that at least two other officers staffed the station at that time. There was no possibility that the arresting officer would be endangering himself or risking the loss of evidence by deferring a search of the bag until a warrant had been obtained. They were already at the police station, so no transportation or lapse of time was necessary to get Porter and the bag to a place of security. Dawley harbored no fear of weapons hidden in the bag; he himself had previously checked the bag specifically for weapons and had satisfied himself that it contained none, and he testified at the suppression hearing that he *630 sought only cocaine when he searched the bag a second time. 2 The foregoing arguments demonstrate that no exigency was created by the possibility that weapons were present. Nor may the search here be justified by the exigency created by the need to protect evidence or contraband from destruction. Although conceivably such a concern may have been the motivation behind Dawley’s search, 3 the requirement that the search be confined to the arrestee’s “wingspan” still remains in force. Chimel v. California, supra, 395 U.S. at 763 , 89 S.Ct. at 2040 . The only testimony concerning the location of the bag at the time of the search at issue was from Dawley at the suppression hearing, who testified that “[t]he defendant was seated near the window in the airport office and the bag was located between her and myself” and that Porter was “[wjithin arm’s reach” of the bag. But Dawley’s testimony is incomplete, since nowhere does he indicate when or if he returned the bag to Porter between the time of the initial search for weapons and the later post-arrest search. The district judge made no finding on the point. Given the level of detail of the remainder of Dawley’s testimony, his earlier possession when he made his consensual search, and the fact that he nowhere describes asking for Porter’s bag again or taking it from her, it is difficult to escape the conclusion that he was in possession of the bag for several minutes and was responsible for any placing of the bag “within arm’s reach” of Porter which arguably occurred. In light of the above facts, the majority strains the meaning of Chimel by concluding that the fear of concealment or destruction of the evidence can justify the search in the instant case. With due respect, I disagree with the majority’s apparent decision to eliminate or eviscerate the need for exigency to justify the search in the instant case and in others of a like nature. Such a decision flatly contradicts the long line of Supreme Court cases, including Belton itself, that explicitly limits nonconsensual, warrantless searches to situations where countervailing concerns of exigency are paramount. Far from jealously protecting our society’s concerns for privacy, the majority adopts a course that inevitably will lead to the further erosion of such a basic right. The majority has inaugurated an ill-advised journey down the path of erosion. Instead it is proper and in accordance with precedents to hold that the search of Porter’s bag took place in violation of Fourth Amendment strictures and without her consent. I therefore would reverse the ruling of the district court, and, accordingly, I must dissent. Judge WINTER authorizes me to say that he concurs in this opinion. . Preston is particularly relevant here since [i]n Cooper v. California, 386 U.S. 58 [ 87 S.Ct. 788 , 17 L.Ed.2d 730 ] (1967), [footnote omitted] the Court read Preston as dealing primarily with a search incident to arrest and cited that case for the proposition that the mobility of a car may make the search of a car without a warrant reasonable.... Chambers v. Maroney, supra, 399 U.S. at 49-50 , 90 S.Ct. at 1980-1981 . Cooper's reading of Preston only reinforces the point that the exigencies attendant to an automobile search are of critical importance regardless of which exception ultimately provides the basis for upholding the warrantless search. . Indeed, since Dawley apparently never bothered to carry out a search of Porter herself prior or subsequent to searching her bag, he could not have been overly concerned that Porter would either seek to injure him or to destroy evidence. . Dawley certainly was looking for cocaine since his anonymous informant had led him to believe that Porter would be transporting the substance. He asserted at the suppression hearing that "after she was placed under arrest, the substance I was looking for was cocaine.” Whether Dawley feared for its destruction is not established in the record, although it is hard to imagine how the availability of cocaine as evidence could be adversely affected by the delay the procurement of a warrant would entail, once the bag was within Dawley’s control. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472346. Public record. Not legal advice.