Voelkel v. State

CLINTON, Judge,

dissenting.

Assuming, without conceding, that the majority is correct that the motel manager, and ergo the police officers, had a right to enter appellant’s motel room 1 and then to frisk appellant and her companion, that then “[pjrobable cause existed for the search of appellant’s belongings,” as the majority concludes, even if it were correct, 2 would not be the end of the inquiry. Absent some exigency, a warrant is still required. United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977); see also Arkansas v. Sanders, 442 U.S. 753 at 758 , 99 S.Ct. 2586 at 2590 , 61 L.Ed.2d 235 at 241 (1979) (“The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment.”). For this reason, if no other, I dissent to the majority’s disposition. •

I also write to address that which we granted discretionary review to examine, and which, without explaining why, the majority apparently did not accept, viz: the court of appeals’ holding that “the search of the room, including the clothing bag, was a valid search incident to the arrest of the appellant and her companion.” See Maj. op. at p. 315.

The court of appeals observed, after concluding that the frisk of appellant and her companion was permissible under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), that “when the gun and the marihuana were found on the person of the appellant’s companion the appellant and her companion were under arrest.” 629 S.W.2d at 246. Presumably because appellant did not expressly attack the validity of these arrests, the court of appeals did not address that question. It is difficult to see the validity of appellant’s arrest, however, since the frisk of her person did not reveal possession of either a weapon or contraband. Thus no offense was committed by her in the presence of the police officers. Article 14.01, V.A.C.C.P. But, assuming either that appellant’s arrest was lawful, or that the arrest of her companion, the lawfulness of which she has no standing to challenge, might under some circumstances justify a search of appellant’s belongings, nevertheless on the facts of the instant case the search was unjustified.

In Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), relied upon by the court of appeals, it was stated:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for search *318 ing through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.”

395 U.S. at 762-763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 . Citing Terry v. Ohio, supra, then only recently decided, the Court emphasized that the scope of search incident to arrest must be strictly circumscribed in accordance with the events giving rise to the above exigencies, viz: the need to seize weapons or secure evidence.

Since Chimel the Supreme Court has retreated somewhat from a requirement that any search of the arrestee’s person or any area within his immediate control be strictly justified by the circumstances immediately surrounding the arrest. In United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) it was held that a search of the person of the arrestee was justified by events giving rise to probable cause to arrest in the first place, and that case by case determination that a weapon or destructible evidence was likely to be present on the arrestee’s person is unnecessary. However, as observed in Chadwick, supra, “[ujnlike searches of the person [citations omitted], searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectation of privacy caused by the arrest.” 433 U.S. at 16, n. 10 , 97 S.Ct. 2486 , n. 10, 53 L.Ed.2d at 551, n. 10 .

Thus we must determine whether the circumstances of the arrests in this cause were such that the officers’ need to secure weapons or contraband was sufficient to defeat appellant’s legitimate expectation of privacy in the contents of her clothing bag.

It cannot be gainsaid that once a weapon and contraband were discovered in the motel room, 3 the officers had reason to suspect that other such items might be found on the premises. If after arrest appellant or her companion had ready access to receptacles in the room which might contain these, it would certainly be permissible for the officers to conduct a search of those receptacles, under Chimel . Obviously the critical question in this cause is what effect the fact of having been handcuffed and seated at the opposite ends of the room had upon their access to appellant’s belongings. Observing that appellant and her companion were cuffed with their hands in front of them, the court of appeals concluded that the officers could reasonably expect that the contents of appellant’s bag were accessible, citing United States v. Jones, 475 F.2d 723 (CA5 1973).

Initially it should be noted that all that is said in Jones relative to this question is dicta, having no bearing on the disposition of the case. The Fifth Circuit panel stated that, were it necessary to resolve the cause on the search incident to arrest issue, a remand for additional evidence would be necessary. The panel then found that Jones had consented to the search.

Nevertheless, discussing the Chimel issue the court opined:

"... Jones was in handcuffs when the agents opened the suitcase. The record is unclear whether his hands were cuffed in front or behind his back and does not reveal the defendant's location in relation to the suitcase at the time of the search. Both of these facts are relevant to a determination of access to weapons or destructible evidence which is the crucial factor in the Chimel analysis.

“For example, if defendant’s hands were cuffed in front and he were in close proximity to the suitcase, then the search here could probably be justified under Chimel . Even with the presence of numerous FBI agents in the room, we cannot say that it would be unreasonable to believe that Jones might attempt to lay his hands on a weapon located inside the suitcase. But if defendant’s hands were cuffed behind him in such a manner that he was denied access to the suitcase, *319 then the search could not be upheld under Chimel because the suitcase would not be within his immediate control or within an area from which he might gain possession of a weapon or destructible evidence.”

Id., at 727-728. 4

At this juncture the court observed in the margin that “[a] situation could develop, of course, in which a defendant with his hands cuffed behind him would nevertheless have access to weapons or evidence.”

It is important to note that both the position of an arrestee’s cuffed hands and his location relative to items searched are to be factored into the decision whether a search for weapons or evidence is necessary. Just as a situation could arise whereby an arrestee handcuffed behind the back might nevertheless have access, it is equally conceivable that handcuffing an ar-restee in front would, under a given set of circumstances, sufficiently deny access.

Appellant’s clothing bag was located on the bed. There is no evidence that either appellant or her companion made any motion in that direction prior to being subdued. The dimensions of the room are not in evidence, so it is impossible to tell how far away appellant or her companion were from the bed, once cuffed and seated, appellant “in the east corner of the room,” and her companion “in the west portion of the room,” according to Officer Helm. Helm further testified that appellant was “momentarily” handcuffed behind her back, “and then the handcuffs were changed to the front,” thus belying any actual concern on the officers’ part that appellant might be able to reach a weapon or contraband.

Under this state of the evidence I find insufficient indication that the search of appellant’s clothing bag at the scene was justified. Unlike the Fifth Circuit panel, however, I would not remand for additional evidence, since “the general requirement that a search warrant be obtained is not lightly to be dispensed with and ‘the burden is on those seeking [an] exemption [from the requirement] to show the need for it....’ United States v. Jeffers, 342 U.S. 48, 51 , 96 L.Ed. 59 , 64, 72 S.Ct. 93 [95].” Chimel, 395 U.S. at 762 , 89 S.Ct. at 2039 , 23 L.Ed.2d at 693 .

For the foregoing reasons I respectfully dissent.

MILLER, J., joins.

. On the question of whether by overstaying her checkout time appellant had relinquished any reasonable expectation of privacy, see U.S. v. Owens, 782 F.2d 146 (CA10 1986).

. On this point I am in general agreement with what is said in Judge Teague’s dissenting opinion.

. The record does not reflect by what justification these items were discovered and seized— i.e., exactly why Officer Reed engaged appellant’s companion in a "flurry of activity."

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.