Petition — United States v. Benson

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80-1317

No.

In the Supreme Court of the United States

OCTOBER TERM, 1980

UNITED STATES OF AMERICA, PETITIONER

vU.

JEFFREY JOSEPH BENSON

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ELLIOTT SCHULDER

Assistant to the Solicitor General

SIDNEY M. GLAZER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

LO LTE: — AES LOTS ST PI EAD

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In the Suprene Court of the United States

OCTOBER TERM, 1980

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

: JEFFREY JOSEPH BENSON

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

QUESTION PRESENTED

Whether a warrantless search of an unlocked container

within reach of an arrestee, conducted contemporaneously

with a lawful arrest, may be upheld as a search incident to

that arrest.

TABLE OF CONTENTS

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Reasons for granting the petition ................

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TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S. 753..........

Chimel v. California, 395 U.S. 752..........

New York v. Belton, cert. granted, No. 80-328

(Jan. AR MES Rohan ele ays A/a aa

United States v. ne. 560 F. 2d 861, vacated,

OUR Fe Vk aciesinds os a ee

United States v. Calandrella, 605 F.2d 236,

cort. denied, 444 U.S. 91 (vie tdietink

United States v.. -Ciotti., 469 F.2d 1204, vacated

on other grounds, 414 SE ROO decinecewues

United States v. Dixon, 558 F.2d 919, cert.

meen, 4 US. OB ec ei ee

United States v. Eatherton, 519 F.2d 603,

oar. Gonied, 458 US: 07.3. cS

ITI

PRECEDING PAGE WAS BLANK

lor)

IV

Cases (Cuntinued): Page

United States v. Garcia, 605 F.2d 349, cert.

denied, No. 79-6035 (June 2, 1980) ........ 6

United States v. Graham, No. 80-1206 (7th

+ Se PS Be.) Re RO Eee ere 6

United States v. Kaye, 492 F.2d 744......... 6

United States v. Mancillas, 580 F.2d 1301,

cert. denied, 439 U.S. 968..........ceccee- 6

United States v. Moreno, 569 F.2d 1049, cert.

CRE aR | Dn ne eer 6

United States v. Neumann, 585 F.2d 355 .... 6

United States v. Robinson, 414 U.S. 218..... 4

United States v. Schleis, 582 F.2d 1166 ...... 3

United States v. Stevie, 582 F.2d 1175, cert.

OU OU TIE WER 504s ce wdcanceeces dames 3

Constitution and statutes:

United States Constitution, Fourth Amend-

ee ter. ecco a sdb ee wens ba ees 4,6

21 U.S.C, SEIUAN1) 2... ccc ccccccsscvccreveces

(fF Lok Sat weer rrrereyrri err eri eee

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Be

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eighth Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, la-

15a) is reported at 631 F.2d 1336. The opinion of the dis-

trict court (App. D, infra, 18a-27a) is not reported.

JURISDICTION

The judgment of the court of appeals (App. B, infra,

16a) was entered on September 18, 1980. A petition for

rehearing was denied on November 7, 1980 (App. C,

infra, 17a). On December 31, 1980, Mr. Justice Blackmun

extended the time within which to file a petition for a writ

of certiorari to and including February 5, 1981. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Arkansas, respondent

was convicted of possession of cocaine with intent to dis-

tribute it, in violation of 21 U.S.C. 841(a)(1), and conspir-

acy to distribute cocaine, in violation of 21 U.S.C. 846. He

was sentenced to three years’ imprisonment, to be fol-

lowed by a three-year term of special parole.

Prior to trial, respondent moved to suppress a quantity

of cocaine seized by law enforcement officers at the time of

his arrest. The evidence at the suppression hearing

showed that Sandy Sandefer, a police informant, arranged

with Bruce Bell to purchase eight ounces of cocaine, which

were to be delivered to Sandefer at the Little Rock

Municipal Airport by an individual named “Jeff.” Sandefer

told the police that Jeff would be arriving from Fort

Lauderdale, Florida, at about 6:00 p.m. on August 27,

1979, and most likely would be carrying the drugs in a

1

2

brown leather or vinyl tote bag, which Jeff had used to

deliver cocaine to Sandefer on two previous occasions (H.

Tr. 7-8, 15-16, 55-56, 67-68, 79, 87).1 Bell was also ex-

pected to arrive at the airport at about the same time on a

flight from California (H. Tr. 7-8, 12-13, 20, 73-74).

On August 27, 1979, at about 5:40 p.m., law enforcement

officers observed Sandefer meet respondent at the Little

Rock airport. Respondent, who was carrying a brown

leather tote bag, matched the physical description of

“Jeff” that Sandefer had given to the police (H. Tr. 16,

105, 113). Respondent and Sandefer walked together to

Sandefer’s car, a four-door compact station wagon. Re-

spondent placed the tote bag on the passenger side of the

rear seat of the vehicle and sat down in the front seat on

the same side. Sandefer then sat in the driver’s seat and

gave a pre-arranged signal to the officers that respondent

had the cocaine in his possession (H. Tr. 16-17, 88-92,

113-115).

At that point, four officers approached the car. One of

the officers, state narcotics investigator Sanders, opened

the door on respondent’s side, identified himself as a police

officer, informed respondent that he was under arrest, and

ordered him out of the car. Respondent did not move; offi-

cer Sanders repeated his order but respondent still did not

move. As officer Sanders leaned into the car to pull re-

spondent out, respondent leaned back, turned sideways

toward Sanders, and moved his right arm to the top of the

front seat. Officer Sanders believed that rcspondent was

reaching into the rear seat for a weapon or for the tote

bag, which was within two and one half to three feet of

respondent’s hand. As soon as respondent made the

movement with his arm, police detective Hutchinson

opened the rear door of the vehicle on respondent’s side

and seized the tote bag. Detective Hutchinson looked in-

side the tote bag and found a small, partially open blue

1The informant described “Jeff” as approximately 5 feet 10 inches

tall, weighing about 170 pounds, with a moustache and brown hair

parted in the center (H. Tr. 67, 88). “H. Tr.” refers to the transcript of

the suppression hearing.

3

pouch inside of which was a clear plastic bag containing

cocaine. Meanwhile, officer Sanders removed respondent

from the vehicle and placed him in a search position with

his hands on top of the car. While officer Sanders was in

the process of *- arching respondent’s person, respondent

turned around and Sanders immediately placed respondent

back in the search position (H. Tr. 92-96, 115-118).

The district court denied respondent’s motion to sup-

press the cocaine (App. D, infra, 18a-27a). The court

found that respondent had been reaching for the tote bag

immediately prior to the search (id. at 22a) and concluded

that the warrantless search of the tote bag, which was

within respondent’s area of immediate control, was jus-

tified as a search incident to a lawful arrest (id. at 24a-

25a, 27a).?

Pgs divided panel of the court of appeals reversed (App.

A, infra, la-15a). Relying on this Court’s decisions in

United States v. Chadwick, 483 U.S. 1 (1977), and Ar-

kansas v. Sanders, 442 U.S. 753 (1979), and on its prior

en banc decisions in United States v. Schleis, 582 F.2d

1166 (1978), and United States v. Stevie, 582 F.2d 1175

(1978), cert. denied, 443 U.S. 911 (1979), the majority held

that the search of the bag could not be justified as incident

to respondent’s arrest.® The majority ruled that the bag

was not “immediately associated” with respondent's per-

son when it was seized, since respondent was in the front

seat and the bag was in the rear seat of the car at the time

of the seizure (App. A, infra, 7a). Moreover, the court

concluded that the bag was within the officers’ exclusive

control at the time of the search, “and there was no longer

any danger that [respondent] Benson might gain access to

the bag to destroy evidence or grab a weapon” (id. at 8a).

It accordingly ruled that “[oJ]nce the police officers seized

2The district court rejected respondent’s argument that informant

Sandefer was unreliable and that therefore the arrest was not sup-

ported by probable cause (App. D, infra, 25a-27a).

%’The majority assumed that the informant was reliable and that re-

spondent was properly arrested on probable cause (App. A, infra, 2a

n.1).

4

the bag and exercised exclusive control over it, they

should have delayed searching it until judicial approval

had been obtained” (ibid.).

Judge Gibson dissented (App. A, infra, 8a-14a). He

concluded that because the tote bag was within re-

spondent’s immediate control at the time of arrest, and the

search was contemporaneous with the arrest, the war-

rantless search was permissible as incident to respondent’s

arrest under principles articulated in United States v.

Robinson, 414 U.S. 218 (1978), and Chimel v. California,

395 U.S. 752 (1969). In his view, the majority erred in its

reliance on United States v. Chadwick, supra, and Ar-

kansas v. Sanders, supra, which did not involve searches

incident to arrest. Judge Gibson observed that “(uJnder

the majority’s analysis, * * * [respondent] would have to

have been successful in his attempt to grab the bag before

it could be seized and searched” (App. A, infra, 12a; em-

phasis in original). He pointed out that the majority’s ap-

proach was inconsistent with this Court’s definition of

“immediate control” as the “ ‘area into which an arrestee

might reach in order to grab a weapon or evidentiary

item’ ” (ibid., quoting from Chimel v. California, supra,

395 U.S. at 763). Finally, Judge Gibson noted that under

the majority’s ruling that searches of luggage or other

types of containers may not be justified as incident to ar-

rest once the police have obtained exclusive control of the

container, law enforcement officers would be prevented in

almost all cases from discovering weapons or contraband

inside containers within an arrestee’s immediate control,

since “[o]bviously the police must obtain possession of any

container-type article before it can be searched * * * ”

(App. A, infra, 14a).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals raises an important

question of Fourth Amendment law similar to that now

before the Court in New York v. Belton, cert. granted,

No. 80-328 (Jan. 19, 1981). The facts in Belton showed

that a car with four occupants was stopped for traffic vio-

5

lations by a state trooper. Upon approaching the car, the

officer detected the odor of marijuana and observed on the

floor of the car an envelope of a type commonly used to sell

the drug. After ordering the occupants out of the vehicle,

the officer patted each of them down and retrieved the en-

velope, which contained marijuana. At that point the offi-

cer formally placed the four individuals under arrest. He

then reentered the car, searched several jackets on the

rear seat, and discovered cocaine and Belton’s identifica-

tion in the zippered pocket of one jacket.

A majority of the New York Court of Appeals ruled that

the warrantless search of the zippered pockets of the

jacket could not be upheld as a search incident to a lawful

arrest because the jacket was within “the exclusive control

of the police,” the occupants had been effectively neu-

tralized, and there was no longer any danger that they

might gain possession of the jacket either to obtain a

weapon or to destroy evidence. Relying on Arkansas vy.

Sanders, supra, and United States v. Chadwick, supra,

the majority concluded (80-328 Pet. App. A-8 to A-9;

footnote and citations omitted): °

That defendant retained an expectation of privacy

in the contents of his jacket pockets notwithstanding

the fact of his arrest is beyond dispute * * *. Defend-

ant’s arrest, standing alone, did not vitiate that pri-

vacy interest by being converted into a license for law

enforcement authorities to engage in a warrantless

search of unlimited temporal and geographic scope.

Once defendant had been removed from the au-

tomobile and placed under arrest, a search of the

interiors of a private receptacle safely within the ex-

clusive custody and control of the police may not be

upheld as incident to his arrest * * *. The car was in a

secure place where it could have been easily guarded,

its occupants under arrest and safely away from the

vehicle, their removal to the police station imminent.

There was, therefore, no reason why the search

should not have awaited the issuance of a warrant.

The dissenting judges noted (80-328 Pet. App. A-11) that,

at the time of the search of Belton’s jacket, “[t]he situation

was still fluid, and neither the suspects themselves nor

6

their property had as yet been reduced to the exclusive

and certain control of the police.” Because of the potential

for danger or for destruction of evidence while the officer

was in the process of arresting four unknown individuals,

the dissenters concluded that the search was proper as in-

cidental to the arrest.

Belton appears to raise, on somewhat similar facts, the

same general Fourth Amendment issued that is present in

this case, i.e., whether a warrantless search by police of

an unlocked container seized from the vicinity of an arres-

tee may be upheld as incident to arrest when the search is

conducted contemporaneously with the arrest.4 Thus, the

decision in Belton may well control this case. However,

there are a number of factual differences between the two

cases, and, accordingly, it is conceivable that the outcome

in Belton might not be dispositive here. First, in Belton

the container searched was a jacket pocket, while here it

was a piece of luggage. Second, Belton involves a situation

in which a single officer confronted four unknown arres-

tees, whereas in this case four officers were present to as-

*Prior to the decision in United States v. Chadwick, supra, the

courts of appeals had upheld such searches, so long as the container

was either in the arrestee’s possession or within his reach at the time

of the arrest. See, e.g., United States v. French, 545 F.2d 1021 (5th

Cir. 1977); United States v. Eatherton, 519 F.2d 603, 609-610 (1st

Cir.), cert. denied, 423 U.S. 987 (1975); United States v. Kaye, 492

F.2d 744, 746 (6th Cir. 1974); United States v. Ciotti, 469 F.2d 1204,

1206-1207 (3d Cir. 1972), vacated on other grounds, 414 U.S. 1151

(1974). After Chadwick, the circuits have generally adhered to that

position. See, e.g., United States v. Graham, No. 80-1206 (7th Cir.

Jan. 27, 1981); United States v. Allen, 629 F.2d 51, 58 (D.C. Cir.

1980); United States v. Garcia, 605 F.2d 349 (7th Cir. 1979), cert. de-

nied, No. 79-6035 (June 2, 1980); United States v. Foster, 584 F.2d

997, 1001-1002 (D. C. Cir. 1978); United States v. Moreno, 569 F.2d

1049, 1052 (9th Cir.), cert. denied, 435 U.S. 972 (1978); United States

v. Dixon, 558 F.2d 919, 922 (9th Cir. 1977), cert. denied, 434 U.S. 1063

(1978). But see United States v. Newmann, 585 F.2d 355, 359-360 (8th

Cir. 1978); ef. United States v. Calandrella, 605 F.2d 236, 249 (6th

Cir.), cert. denied, 444 U.S. 991 (1979) (dictum); United States v.

Mancillas, 580 F.2d 1301, 1306 (7th Cir.), cert. denied, 439 U.S. 958

(1978) (dictum); United States v. Berry, 560 F.2d 861 (7th Cir. 1977),

vacated, 571 F.2d 2 (7th Cir. 1978).

7

sist in the arrest of a single suspect. Third, in Belton, the

arrestees had already been removed from the car and pat-

ted down before the officer seized and searched the jackets

inside the vehicle. Here, on the other hand, respondent

was still inside the car and appeared to be reaching for the

tote bag when one of the officers seized and searched it. In

light of these factual distinctions, it is difficult to predict

with certainty whether the decision in Belton will neces-

sarily govern this case.

The Court should hold this petition pending its decision

in Belton. If this Court concludes in Belton that a warrant

was not required to search the zippered jacket incidental

to Belton’s arrest, it should grant certiorari in this case

and either reverse the judgment of the court of appeals or,

if appropriate, either set this case for plenary considera-

tion or remand, for reconsideration in light of the decision

in Belton. Because of the factual differences between the

two cases, however, even if the Court were to affirm the

judgment of the New York Court of Appeals in Belton,

affirmance in this case would not necessarily follow.

*Although only respondent was arrested, Sandefer, the informant,

was also present at the scene of the arrest, and respondent’s ac-

complice Bruce Bell was expected to arrive at the airport at about the

same time as respondent.

8

CONCLUSION

The Court should defer consideration of this petition

pending its decision in New York v. Belton and should

then dispose of the petition as appropriate in light of that

decision.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ELLIOTT SCHULDER

Assistant to the Solicitor General

SIDNEY M. GLAZER

Attorney

FEBRUARY 1981

la

APPENDIX A

United States Court of Appeals

For THE EIGHTH CIRCUIT

No. 80-1044

UNITED STATES OF AMERICA, APPELLEE,

Vv.

JEFFREY JOSEPH BENSON, APPELLANT.

Appeal from the United States

District Court for the

Eastern District of Arkansas. “

A

Submitted: May 23, 1980

Filed: September 18, 1980

Before: GIBSON, Senior Circuit Judge, and HEANEY and

Ross, Circuit Judges.

HEANEY, Circuit Judge.

Jeffrey Benson appeals from his conviction of possession

with intent to distribute and conspiracy to distribute

cocaine. We reverse the conviction because the warrant-

less search of Benson’s luggage in the absence of exigent

circumstances was unreasonable and in violation of the

Fourth Amendment.

I

Benson was arrested on August 27, 1979, while sitting

in a car parked at the Little Rock Municipal Airport.

Sandy Sandefer, who was sitting in the driver’s seat of the

vehicle, had previously given police information that a

“Jeff’ would arrive at the airport carrying a quantity of

cocaine, and police had undertaken an investigation.

Sandefer had told the police that Benson would be carry-

ing a brown leather or vinyl tote-type bag and that the bag

had been used on previous occasions to transport cocaine

from “Jeff’ to Sandefer. Benson was indeed carrying a

brown leather tote bag when Sandefer met him at the air-

port. Sandefer took Benson to Sandefer’s car, a four-door

compact station wagon. Benson placed his bag on the pas-

senger side of the back seat of the vehicle and sat down in

the front seat on the same side. Sandefer sat down in the

driver’s seat. He then communicated to the waiting police,

by a prearranged signal, his belief that Benson possessed

the cocaine.!

At that point, four police officers came to the car. They

had neither applied for nor received arrest or search war-

rants. State police narcotics investigator Sanders opened

the door alongside Benson and told him that he was under

arrest and should get out of the car. Benson made no

movement; Sanders repeated the order; Benson still made

no movement. As ‘Sanders leaned into the car to remove

Benson, Benson turned slightly sideways and moved his

arm to the top of the front seat. Sanders physically took

Benson out of the vehicle and placed him in a search posi-

tion with his hands on top of the vehicle. Simultaneously,

police detective Hutchinson opened the back door of the

vehicle on the passenger side and seized the tote bag.

While Sanders was beginning to search Benson, Benson

turned around; Sanders immediately put Benson back in

the search position and completed searching Benson’s per-

son. Detective Hutchinson, meanwhile, had opened Ben-

1We assume that the informant was reliable and that Benson was

properly arrested upon probable cause.

3a

son’s tote bag. In it, he found shaving articles, small col-

ogne bottles, some papers and a small blue drawstring bag

bearing the words “Rich Lights.” Hutchinson felt the

small, blue bag and determined that it contained a soft,

powdery substance. He looked in the end of the bag, which

was not tightly drawn, and saw a plastic bag containing a

white powder that, on subsequent analysis, proved to be

cocaine.

Our concern is whether the warrantless search of Ben-

son’s tote bag was constitutionally permissible.

II

The Fourth Amendment requires that “normally

searches of private property be performed pursuant to a

search warrant “issued in compliance with the warrant

clause.” Arkansas v. Sanders, 442 U.S. 753, , 61

L.Ed.2d 235, 241 (1979). This requirement is not a techni-

cality; it “reflects the ‘basic constitutional doctrine that

individual freedoms will best be preserved through a sep-

aration of powers and division of functions among the dif-

ferent branches and levels of government.’ ” Jd. (quoting

United States v. United States District Court, 407 U.S.

297, 317 (1972)). By requiring that determinations of prob-

able cause and the scope of a search “be drawn by a neu-

tral and detached magistrate instead of being judged by

the officer engaged in the often competitive enterprise of

ferreting out crime,” Johnson v. United States, 333 U.S.

10, 14 (1948), we “minimize the risk of unreasonable asser-

tions of executive authority.” Arkansas v. Sanders,

supra, 442 U.S. at , 61 L.Ed.2d at 241.

Some exceptions to the warrant requirement exist;

however, they are “jealously and carefully drawn,” Jones

v. United States, 357 U.S. 498, 499 (1958), and “the bur-

den is on those seeking the exemption to show the need for

it.” United States v. Jeffers, 342 U.S. 48, 51 (1951). Fur-

ther, the Court has “limited the reach of each exception to

that which is necessary to accommodate the identified

needs of society.” Arkansas v. Sanders, supra, 442 U.S.

at , 61 L.Ed.2d at 242; see Mincey v. Arizona, 437

4a

U.S. 385, 393 (1978); United States v. Chadwick, 433 U.S.

1, 15 (1977). One exception that has been sustained is the

so-called “automobile exception,” which authorizes police

to stop an automobile on the street or highway if they

have probable cause to believe it contains contraband or

evidence of a crime. See United States v. Martinez-Fuerte,

428 U.S. 543, 561-562 (1976); Carroll v. United States,

267 U.S. 132, 153 (1925). This exception has, in certain

instances, been extended to searches of “some integral

part of the automobile.” Arkansas v. Sanders, supra, 442

U.S. at , 61 L.Ed.2d at 244. See, e.g., South Dakota

v. Opperman, 428 U.S. 364, 366 (1976)(glove compart-

ment). It does not, however, extend to the Search of lug-

gage seized from automobiles in the absence of some other

exigency. Arkansas v. Sanders, supra; United States v.

Stevie, 582 F.2d 1175 (8th Cir. 1978), cert. denied, 443

U.S. 911 (1979). Luggage, because of its nature as a

“common repository for one’s personal effects, * * * is in-

evitably associated with the expectation of privacy.” Ar-

kansas v. Sanders, supra, 442 U.S. at , 61 L.Ed.2d

at 244; see id., n.9; United States v. Chadwick, supra, 433

U.S. at 13.

United States v. Chadwick, supra, and Arkansas v.

Sanders, supra, held the warrantless searches of a foot-

locker and a suitcase, respectively, to be constitutionally

impermissible. Relying on one or both of those cases, the

courts have held illegal the warrantless searches of a vari-

ety of “types of containers normally associated with per-

sonal luggage,” United States v. Ross, No. 79-1624, slip

op. at 9 (D.C. Cir., Apr. 17, 1980), including a suitcase,? a

briefease,® a duffle bag, a backpack,® a leather pouch,®

and a portfolio.”

2E.g., United States v. Montano, 613 F.2d 147 (6th Cir. 1980)(per

curiam); United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978).

%United States v. Presler, 610 F.2d 1206 (4th Cir. 1979); United

States v. Schleis, 582 F.2d 1166 (8th Cir. 1978); cf. United States v.

Haley, 581 F.2d 723 (8th Cir.) cert. denied, 439 U.S. 1005 (1978) (exi-

gent circumstances; defendant was unconscious and police sought iden-

tification or medical alert cards).

(See footnotes next page).

5a

We feel that Benson had a justifiable expectation of pri-

vacy in the contents of his brown leather tote bag. Al-

though the bag was fairly small and unlocked, its “funda-

mental character as a repository for personal, private ef-

fects”® is unchanged. In the absence of exigent circum-

stances, the search of the bag without a warrant violated

the Fourth Amendment.

III

The government contends, nevertheless, that the search

of Benson’s luggage was proper because it was incident to

his arrest, see United States v. Robinson, 414 U.S. 218

(1973), and because the bag may have contained con-

traband that the defendant could destroy or weapons that

he could use against the police. See Chimel v. California,

395 U.S. 752 (.969).

In United States v. Stevie, supra, we held that the war-

rantless search of a suitcase in the rear of the station

wagon in which defendants were riding was not justified

as incident to their arrest, because the suitcase had come

under the officers’ control and no exigent circumstances

required a search at the scene of the arrest. 582 F.2d at

1180. In United States v. Schleis, 582 F2d 1166 (8th Cir.

1978), we invalidated the warrantless search of Schleis’

briefcase at the station house after his arrest “because the

search * * * came after the briefcase had come under the

*United States v. Johnson, 588 F.2d 147 (5th Cir. 1979).

5 United States v. Meier, 602 F.2d 253 (10th Cir. 1979).

® United States v. Ross, No. 791624 (D.C. Cir., Apr. 17, 1980).

7 United States v. Miller, 608 F.2d 1089 (5th Cir. 1979).

8 In the present case, respondent’s comparatively small unlocked

suitcase also had been placed in the trunk of an automobile and

was searched without a warrant by police acting upon probable

cause. We do not view the difference in the sizes of the footlocker

and suitcase as material here; nor did respondent’s failure to lock

his suitcase alter its fundamental character as a repository for

personal, private effects.

Arkansas v. Sanders, 443 U.S. 758, __n. 9, 61 L.Ed.2d 235, 244 n.9

(1979).

6a

exclusive control of the police * * *.” Jd. at 1172. We

stated:

Chadwick establishes * * * that the justification for a

search under Chimel evaporates once the officers

seize the luggage or other personal property and re-

duce it to their exclusive control. United States v.

Jackson, [576 F.2d 749 (8th Cir. 1978)]. As the Court

held in Chadwick,

warrantless searches of luggage or other property

seized at the time of an arrest cannot be justified as

incident to that arrest either if the “search is re-

mote in time or place from the arrest,”* * * or no

exigency exists. Once law enforcement officers

have reduced luggage or other personal property

not immediately associated with the person of the

arrestee to their exclusive control, and there is no

longer any danger that the arrestee might gain ac-

cess to the property to seize a weapon or destroy

evidence, a search of that property is no longer an

incident of the arrest.

United States v. Chadwick, supra, 483 U.S. at 15, 97

S.Ct. at 2485.

Chadwick establishes that the critical factor is the

extent to which the property is within the control of

the law enforcement officers, rather than the amount

of time or space between the arrest and the search.

United States v. Ester, 442 F. Supp. 736, 739

(S.D.N.Y. 1978). Once the officers obtain exclusive

control, the requirement for a warrant under Chad-

wick is triggered. Ordinarily, the initial seizure at the

time of arrest would be sufficient to place the prop-

erty within the officers’ exclusive control. To other-

wise interpret Chadwick “would enable police and

federal agents to circumvent the Chadwick holding

by encouraging them to conduct a search of luggage at

the time and location of the seizure in conjunction

with a lawful arrest.” Note, Criminal Procedure-

Search and Seizure-Persons Lawfully Ary: ted for

Alleged Possession of Narcotics have a Privacy

Interest in a Footlocker in Their Possession at the

Time of Their Arrest which is Protected by the War-

Ta

rant Clause of the Fourth Amendment. United States

v. Chaduick, 6 Am.J.Crim.Law 81, 94 (1978)* * * .

United States v. Schleis, supra, 582 F.2d at 1171-1172

(emphasis added).

In Arkansas v. Sanders, supra, the Court reiterated

this proposition. It determined that no exigency of mobil-

ity was present where the defendant was in custody and

the luggage was in the officers’ control, saying, “the exi-

gency * * * must be assessed at the point immediately

before the search—after the police have seized the object

to be searched and have it securely within their control.”

442 U.S. at , 61 L.Ed.2d at 244-245.

At the outset, we must distinguish the seizure of the

tote bag, vich is constitutionally unobjectionable, from

the search ci the bag itself. The Court in Sanders also

noted that distinction, saying, “Having probable cause to

believe that contraband was being driven away in the taxi,

the police were justified in stopping the vehicle, searching

it on the spot, and seizing the suitcase they suspected con-

tained the contraband.* * * the only question, therefore,

is whether the police, rather than immediately searching

the suitcase without a warrant, should have taken it, along

with respondent, to the police station and there obtained a

warrant for the search.” Id., 442 U.S. at ______ a

L.Ed.2d at 243-244.

We have carefully examined the record, including the

testimony of the officers who seized Benson and searched

his luggage, and conclude that the officers should have ob-

tained a warrant before searching the tote bag. The bag

was not “immediately associated with the person of the ar-

restee,” United States v. Chadwick, supra, 483 U.S. at

15, either at the time the luggage was seized or at the time

it was searched. At the time the tote bag was seized,

Benson was seated in the front seat of the vehicle and the

bag was in the back seat.® At the time the tote bag was

®In United States v. Garcia, 605 F.2d 349 (7th Cir. 1979), the

Seventh Circuit upheld, as incident to arrest, a warrantless search of

defendant’s suitcases. At the time she was stopped by the police, she

8a

searched, Officer Sanders had removed Benson from the

car and had placed him in a search position outside the car.

Officer Hutchinson had seized the bag from the back seat

of vehicle. The bag was clearly under Officer Hutchinson’s

exclusive control at the time he opened and searched it,

and there was no longer any danger that Benson might

gain access to the bag to destroy evidence or grab a

weapon. Benson had no accomplices who might have

opened the bag to remove weapons or contraband,?° and

there is no allegation that the bag held “instrumentalities

which could be dangerous even when sitting idly in the

police locker.” United States v. Bloomfield, 594 F.2d 1200,

1203 (8th Cir. 1979). Once the police officers seized the bag

and exercised exclusive control over it, they should have

delayed searching it until judicial approval had been ob-

tained.

Accordingly, Benson’s convictions are reversed.

GIBSON, Senior Circuit Judge, dissenting.

The factual circumstances attendant to the arrest of

Jeffrey Benson remove the search of Benson’s tote bag

from the ambit of the recent container cases relied upon by

the majority opinion. See Arkansas v. Sanders, 442 U.S.

753, 763 n.11 (1979); United States v. Chadwick, 433 U.S.

1, 14-15 (1977). This case involves a search incident to ar-

rest wherein the tote bag was in the “immediate control”

of Benson at the time of his arrest. The relevant standards

for such searches are found in United States v. Robinson,

414 U.S. 218 (1973) and Chimel v. California, 395 U.S.

752 (1969). Under Chimel, id. at 763, a search incident to

an arrest may include not only the person involved but

was carrying the suitcases. At the time of the search, she was standing

one foot from them. As noted in United States v. Presler, 610 F.2d

1206, 1213 n.8 (4th Cir. 1979), it is doubtful whether Garcia can be

reconciled with Sanders.

1°In United States v. Matlock, 558 F.2d 1328, 1330-1331 (8th Cir.),

cert. denied, 434 U.S. 872 (1977), we approved the warrantless search

of an open briefcase that was in the immediate control of the arrestee’s

wife and daughter. Two guns had already been found and the arrest

and search took place in a van at night.

9a

also “the area into which an arrestee might reach in order

to grab a weapon or evidentiary items * * * .” The Court

construed the area “within his immediate control” to mean

“the area from within which he might gain possession of a

weapon or destructible evidence.” Jd. Since the tote bag

was within Benson’s immediate control at the time the of-

ficers approached him, both the seizure and subsequent

search of the bag were proper.

The majority opinion fails to distinguish a warrantless

search incident to arrest from probable cause to engage in

a warrantless search of an automobile when no probable

cause to arrest an occupant exists. Justice Blackmun, in

his dissenting opinion in Arkansas v. Sanders, supra, 442

U.S. at 771-72, foresaw the confusion that the

Chadwick-Sanders rules may engender:

The impractical nature of the Court’s line drawing

is brought into focus if one places himself in the posi-

tion of the policeman confronting an automobile that

properly has been stopped. In approaching the vehicle

and its occupants, the officer must divide the world of

personal property into three groups. If there is prob-

able cause to arrest the occupants, then under

Chimel v. California, 395 U.S. 752 (1969), he may

search objects within the occupants’ immediate con-

trol, with or without probable cause. If there is prob-

able cause to search the automobile itself, then under

Carroll and Chambers the entire interior area of the

automobile may be searched, with or without a war-

rant. But under Chadwick and the present case, if

any suitcase-like object is found in the car outside the

immediate control area of the occupants, it cannot be

searched, in the absence of exigent circumstances,

without a warrant.

The inherent opaqueness of these “principles,” in

terms of the policies underlying the Fourth and Four-

teenth Amendments, and the confusion to be created

for all concerned, are readily il'ustrated. * * * Or

suppose there is probable cause to arrest persons

seated in the front seat of the automobile, and a

suitcase rests on the back seat. Is that suitcase within

the area of immediate control, such that the

10a

Chadwick-Sanders rules do not apply? Or suppose

the arresting officer opens the car’s trunk and finds

that it contains an array of containers—an orange

crate, a lunch bucket, an attache case, a duffelbag, a

cardboard box, a backpack, a tote-bag, and a paper

bag. Which of these may be searched immediately,

and which are so “personal” that they must be im-

pounded for future search only pursuant to a war-

rant? The problems of distinguishing between “lug-

gage” and “some integral part of the automobile,”

ante, at 763; between luggage that is within the “im-

mediate control” of the arrestee and luggage that is

not; and between “personal luggage” and other “con-

tainers and packages” such as those most curiously

described, ante, at 764-65, n 13, will be legion. The

lines that will be drawn will not make much sense in

terms of the policies of the Fourth and Fourteenth

Amendments. And the heightened possibilities for

error will mean that many convictions will be over-

turned, highly relevant evidence again will be

excluded, and guilty persons will be set free in return

for little apparent gain in precise and clearly under-

stood constitutional analysis. [Emphasis added. ]

The majority opinion in Sanders expressly recognized

this distinction.

Nor do we consider the constitutionality of searches

of luggage incident to the arrest of its possessor. See,

e.g., United States v. Robinson, 411 U.S. 218 (1973).

The State has not argued that respondent’s suitcase

was searched incident to his arrest, and it appears

that the bag was not within his “immediate control”

at the time of the search.

Arkansas v. Sanders, supra, 442 U.S. at 763-64 n.11.

In the present case there was ample evidence presented

that the informant was reliable and that Benson was prop-

erly arrested upon probable cause. See Draper v. United

States, 358 U.S. 307, 313 (1959). The question then re-

mains whether the tote bag was in Benson’s “immediate

control.” The district court, implicitly, found this to be the

case. The majority’s veiteration of the facts supports this

finding.

lla

Benson was observed carrying the tote bag with him

into the car, a Honda station wagon. The police officers

approached the door alongside Benson and told him to get

out. “Benson made no movement; Sanders repeated the

order; Benson still made no movement. As Sanders leaned

into the car to remove Benson, Benson turned slightly

sideways and moved his arm to the top of the front seat.

Sanders physically took Benson out of the vehicle and

placed him in a search position with his hands on top of the

vehicle. Simultaneously, police detective Hutchinson

opened the back door of the vehicle on the passenger side

and seized the tote bag.” Ante at 2-3. The officers then

searched both the bag and Benson. In the bag they found a

draw bag labeled “Rich Lights,” a brand of cigarettes.

From the outside, the contents felt powdery. One of the

officers then inspected the bag. Finally, the officers found

a knife on Benson’s person.

To repeat, the district court specifically found, as a

finding of fact, that “[a]s the officers approached the

[Honda] vehicle the man turned and reached for the brown

bag he had been carrying.” Anyone who has ever sat in the

back seat of a Honda, even a station wagon, has realized

the extremely close proximity of the back seat to the front

seat. There can be no doubt that a person sitting in the

front seat of a Honda can easily grab or “reach in” a bag

resting on the back seat. The luggage involved was not a

locked and latched suitcase or trunk, see United States v.

Schleis, 582 F.2d 1166 (8th Cir. 1978), but rather an easily

opened tote bag. It would be foolhardy for an arresting

officer not to seize and search an “area into which an ar-

restee might reach in order to grab a weapon or eviden-

tiary items,” Chimel, supra, 395 U.S. at 763. Fur-

thermore, the officer’s suspicion that Benson might be

carrying a weapon was confirmed; a knife was found on his

person.

It is important to distinguish a warrantless search inci-

dent to arrest from the automobile exception to the neces-

sity for obtaining a warrant when probable cause exists to

search the vehicle but not arrest the occupant. In a search

7%

12a

incident to an arrest, the privacy interests of the arrestee

have already been invaded by the arrest. Furthermore,

the “danger to an officer is far greater in the case of the

extended exposure which follows the taking of a suspect

into custody” than in Terry-type stops involving au-

tomobiles. United States v. Robinson, 414 U.S. at 234-35.

When Benson reached for the tote bag, the officers had

the right to seize and search. Under the majority’s analy-

sis, ante at 9, Benson would have to have been successful

in his attempt to grab the bag before it could be seized and

searched. This simply is not the definition of “immediate

control” under Chimel, supra at 763; ante at 11, which

includes that “area into which an arrestee might reach in

order to grab a weapon or evidentiary item * * *.”

Finally, the majority opinion emphasizes that at the

time the bag was “searched,” as opposed to “seized,” the

bag was under the exclusive control of one of the officers

and therefore there was no longer any danger that Benson

might gain access to the bag. This fact, however, the Su-

preme Court has held, does not render the search invalid.

In United States v. Robinson, 414 U.S. 218 (1973), an in-

dividual was searched incident to an arrest. In a search of

his person, the officer came across a cigarette package.

After removing it from the arrestee’s pocket, the officer

felt the package and knew that it did not contain ciga-

rettes. The officer then opened the package and found

heroin. The Court ruled upon the search, finding:

Since it is the fact of custodial arrest which gives rise

to the authority to search, it is of no moment that

Jenks did not indicate any subjective fear of the re-

spondent or that he did not himself suspect that re-

spondent was armed. Having in the course of a lawful

search come upon the crumpled package of cigarettes,

he was entitled to inspect it; and when his inspection

revealed the heroin capsules, he was entitled to seize

them as “fruits, instrumentalities, or contraband”

probative of criminal conduct. Harris v. United

States, 331 U.S., at 154-155, Warden v. Hayden, 387

13a

U.S. 294, 299, 307 (1967); Adams v. Williams, 407

U.S., at 149.

United States v. Robinson, 414 U.S. 218, 286 (footnotes

omitted).

The same reasoning applies in Benson’s case. The officer

seized the bag within Benson’s “immediate control.” He

then inspected it and found a draw bag labeled “Rich

Lights,” ironically a brand of cigarettes. The officer felt

the bag from the outside and believed it contained a pow-

dery substance, obviously not cigarettes. He then pro-

ceeded to open the bag and confirm his belief that a pow-

dery substance was inside. This type of search was specif-

ically held permissible under the Fourth Amendment in

United States v. Robinson. The language from United

States v. Chadwick, 437 U.S. at 15, quoted by the major-

ity, ante at 7, is simply inapplicable to the present case,

but is indicative of the confusion caused by Chadwick in

enforcing the criminal laws.

In Chadwick, the Court specifically found that “the

footlocker was not within the respondent’s immediate con-

trol.” 433 U.S. at 14. The Court then went on to cite

Chimel and United States v. Robinson for the proposition

that searches of areas within the immediate control of the

arrestee are valid whether or not there is probable cause

to believe that the person may have a weapon or is about

to destroy evidence. The Court did caution, however, that

warrantless searches of “luggage or other property seized

at the time of an arrest cannot be justified as incident to

that arrest either if the ‘search is removed in time or place

from the arrest.’” Jd. at 15, see ante at 7, 9. Here the

Court was distinguishing the case before it, where the

footlocker was not in the immediate control of the arrestee

at the time of the arrest when the footlocker was seized,

from the Chimel-Robinson situation when the property

was within the arrestee’s immediate control.

In this case there was actually no reason to search

Benson unless the police had probable cause to believe

Benson did have possession of narcotics. For all con-

cerned, Benson, the police, and the public, it is better to

l4a

view this warrantless search as reasonable under the

strictures of the Fourth Amendment, which holds unlawful

only “unreasonable searches and seizures.” If the search of

the tote bag produced what appeared to be narcotics, Be-

nson would continue under arrest and he would be §. ld to

account for his undoubted criminal activities. If, on the

other hand, the search proved negative, he would in all

probability be then and there released and free to go about

his business. In turn the police and the courts would also

be free to pursue other matters, thus adding to their effi-

ciency and the common weal. More important,. under the

apparent view of the majority that there can never be a

warrantless search of luggage or any container-type arti-

cle where the police officer has obtained possession of that

article, the police are effectively handicapped from finding

weapons or contraband that are in some type of container

within the arrestee’s immediate control. Obviously the

police must obtain possession of any container-type article

before it can be searched, and if the view is taken that

once it is in the officer’s exclusive possession the long,

tedious process then comes into play of a trip to the police

station, a search for a “detached” magistrate, the applica-

tion for a search warrant, and a possible hearing before

the magistrate, this effectively removes the police officers

from carrying on their assigned duties of enforcing the

criminal laws. One can only conjecture as to the number of

warrants needed in a particular case, given the number of

“containers” an arrestee may have in his “immediate con-

trol” at the time of arrest, in which evidence or a weapon

might be concealed.

To my mind, the search in this case was certainly a rea-

sonable one, given the fact that probable cause existed to

arrest Benson. If the highly refined interpretation of rea-

sonable searches under the Fourth Amendment by the

courts cannot accommodate a search of this type, the pub-

lic has good cause to question the fairness and efficacy of

our criminal enforcement system.

I would find the search of the tote bag valid and, there-

fore, would affirm the District Court.

lda

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

l6a

APPENDIX B

United States Court of Appeals

For THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1980

No. 80-1044

UNITED STATES OF AMERICA, APPELLEE,

VS.

JEFFREY JOSEPH BENSON, APPELLANT.

Appeal from the United States

District Court for the

Eastern District of Arkansas.

[Filed Sept. 18, 1980, Robert D. St. Vrain, Clerk]

JUDGMENT

THIS CAUSE came on to be heard on the original desig-

nated record of the United States District Court for the

Eastern District of Arkansas and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here ordered

and adjudged by this Court, that the judgment and com-

mitment of the said District Court, in this cause, be, and

the same is hereby reversed in accordance with the opin-

ion of this Court.

September 18, 1980

>

17a

APPENDIX C

United States Court of Appeals

For THE EIGHTH CIRCUIT

No. 80-1044

UNITED STATES OF AMERICA, APPELLEE,

V

JEFFREY JOSEPH BENSON, APPELLANT.

Appeal from the United States

District Court for the

Eastern District of Arkansas.

The Court, having considered appellee’s petition for re-

hearing and suggestions for rehearing en banc and being

now fully advised in the premises, hereby orders the peti-

tion for rehearing and suggestions for rehearing en banc

denied.

November 7, 1980

18a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

No. LR-CR—79-74

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

JEFFREY JOSEPH BENSON, DEFENDANT

[Filed U.S. District Court Eastern District Arkansas,

November 1, 1979, W. H. McClellan, Clerk

mes ]

Dep. Clerk

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On August 27, 1979, the defendant, Jeffrey Joseph

Benson, was arrested while seated in a parked vehicle at

the Little Rock Municipal Airport. The defendant’s arrest

was the culmination of surveillance which had been ini-

tiated as a result of information received by law enforce-

ment officers from a confidential informant. During the

course of the defendant’s arrest law enforcement officers

seized approximately six (6) ounces of a powder substance

later identified as cocaine. The indictment in the above

captioned case followed. On Friday, October 26, 1979, this

court conducted an evidentiary hearing for the purpose of

considering factual questions raised by defendant Benson’s

motion to suppress evidence. At the conclusion of the evi-

dence the court announced its ruling denying the defend-

ant’s motion to suppress and the bases therefore. Because

of the importance of the issues presented by the motion to

19a

suppress, however, the court informed the parties that

formal findings of fact and conclusions of law would be

prepared and filed. Accordingly these findings of fact and

conclusions of law are submitted as the court’s memoran-

dum of decision with respect to the defendant’s motion to

suppress.

I.

CONTENTIONS OF THE PARTIES

Defendant Benson contends that the cocaine seized

during his arrest is inadmissible at trial because the search

which produced the cocaine was unlawful. The warrantless

search was unlawful because the defendant’s warrantless

arrest was unlawful. The underlying arrest was unlawful

because the arresting officers allegedly lacked sufficient

probable cause to arrest the defendant. The arresting offi-

cers did not have probable cause to arrest the defendant

because the arrest was based on information obtained from

an “unreliable” informant. Defendant Benson contends

that the informant was unreliable because he had not pre-

viously provided information to law enforcement officers

which had led to the arrest and/or conviction of another

person and the law enforcement officers involved had no

basis for concluding that the informant was reliable.

The government, on the other hand, contends that the

warrantless search of the defendant was constitutionally

permissible as a “search incident to a lawful arrest”. The

government further contends that there was adequate

probable cause to support defendant Benson’s warrantless

arrest.

It is obvious from the contentions of the parties that the

validity of the search and, hence, the admissibility of the

fruits of the search, hinges upon the legality of the de-

fendant’s arrest. It is equally clear that the “lawfulness” of

the defendant’s arrest depends on the existence of proba-

ble cause and that probable cause, under the circum-

stances presented, depends in turn on the reliability of

informant Sandy Sandefer.

20a

II.

FINDINGS OF FACT

1. Defendant Jeffrey Joseph Benson was arrested on

August 27, 1979 shortly after 6:00 p.m.

2. At the time of defendant Benson’s arrest he was sit-

ting in a vehicle which was parked at the Little Rock

Municipal Airport. Another man, Sandy Sandefer, was sit-

ting in the vehicle with defendant Benson at the time of

the arrest of defendant Benson. Mr. Sandefer owned the

vehicle in which defendant Benson was sitting at the time

of the arrest.

3. Immediately prior to his arrest defendant Benson

had been under surveillance by state and federal law en-

forcement officers. An informant, Sandy Sandefer, had

previously informed the officers of the arrival of an indi-

vidual, known at that time only as “Jeff”, who would al-

legedly be transporting a quantity of cocaine. Informant

Sandefer had told narcotics officers that “Jeff” would de-

part from Ft. Lauderdale, Florida on the afternoon of Au-

gust 27, 1979 and that he would arrive at the Little Rock

Municipal Airport on a commercial airline flight at ap-

proximately 6:00 p.m. Informant Sandefer further told of-

ficers that “Jeff” would be carrying a “brown bag” and

that the cocaine would be located in the brown bag be-

cause such a bag had been utilized to transport cocaine

during two previous transactions between “Jeff” and in-

formant Sandefer.

4. Prior to the arrest of defendant Benson, law en-

forcement officers had been provided with the following

information from informant Sandefer: (1) the physical de-

scription of an individual known as “Jeff”; (2) that “Jeff”

would be transporting cocaine on August 27, 1979; (3) that

Jeff would leave on a commercial airline flight from Ft.

Lauderdale, Florida on the afternoon of August 27, 1979;

(4) that “Jeff” would arrive at the Little Rock Municipal

Airport at approximately 6:00 p.m. on August 27, 1979; (5)

that Jeff would be carrying a “brown bag”; (6) a descrip-

tion of the “brown bag”; (7) that the cocaine being trans-

2la

ported by “Jeff” would be concealed in the brown bag; (8)

that informant Sandefer had purchased cocaine from

“Jeff” on two previous occasions and, on each occasion

“Jeff” had transported the cocaine in the same brown bag;

(9) that “Jeff” and one Bruce Bell were engaged in the

unlawful traffic of drugs; (10) that Bruce Bell had called

“Jeff” and had arranged for the transportation of cocaine

by “Jeff” on August 27, 1979; and (11) that Bruce Bell had

told informant Sandefer that he would leave California on

a flight for Little Rock, Arkansas on August 27, 1979, and

that he would arrive at the Little Rock Municipal Airport

at approximately the same time as “Jeff”.

5. During the late afternoon of August 27, 1979, state

and federal law enforcement officers, acting pursuant to

the information provided by informant Sandefer, began a

surveillance of the commercial airline flights arriving at

the Little Rock Municipal Airport. Informant Sandefer

was also present at the airport during the surveillance. He

was assigned the task of verifying whether the individual

known as “Jeff” had cocaine in his possession. Verification

of possession of the drugs was to be communicated by in-

formant Sandefer to law enforcement agents by predeter-

mined signals. If Sandefer confirmed Jeff's possession of

cocaine, either verbally or by physical observation, whilé

Jeff was still in the terminal, informant Sandefer was to

drop a cigarette. If the existence of the cocaine was not

confirmed until Jeff was in Sandefer’s vehicle, then in-

formant Sandefer was to flash his headlights to advise offi-

cers that Jeff had the cocaine in his possession.

6. At approximately 6:00 p.m. on August 27, 1979, offi-

cers observed a man fitting the description of the indi-

vidual known as “Jeff” deplaning from a commercial air-

line flight that had just arrived at the Little Rock Munici-

pal Airport. The man was the only passenger carrying a

“brown bag”. The brown bag fit the description of the

brown bag which had been previously described to law

enforcement officers by informant Sandefer. The officers

maintained their surveillance until the man entered in-

formant Sandefer’s vehicle. When the officers observed

22a

the headlights flash on Sandefer’s car, they proceeded im-

mediately to the vehicle. As the officers approached the

Sandefer vehicle the man turned and reached for the

brown bag he had been carrying. He had placed the bag on

the rear seat of the Sandefer vehicle. As one officer told

the man he was under arrest another officer reached in

and got the bag. An immediate search of the contents of

the brown bag resulted in the discovery of a white powder

substance which was later identified as cocaine. A search

of the arrested man’s person produced a knife.

7. Defendant Benson’s arrest was effectuated without

an arrest warrant.

8. The subsequent search of defendant Benson’s person

and the contents of the brown bag was also done without a

search warrant.

9. None of the law enforcement officers involved in de-

fendant Benson’s arrest and the searches which followed

had had any contact with informant Sandy Sandefer prior

to August 5, 1979, less than one month prior to defendant

Benson’s arrest.

10. Prior to defendant Benson’s arrest, informant San-

defer had not provided law enforcement officers with any

information which had led to the arrest or conviction of

another person.

11. Most of the information furnished by informant San-

defer was given to Trooper Mahone, a member of the nar-

cotics section of the Criminal Investigation Division of the

Arkansas State Police. Prior to defendant Benson’s arrest,

most of informant Sandefer’s contact with the law en-

forcement officers involved in defendant Benson’s arrest

was through Trooper Mahone.

12. Trooper Mahone was aware, at the time informant

Sandefer was providing information to him concerning

defendant Benson and Bruce Bell, that state felony drug

charges were pending against informant Sandefer.

13. Informant Sandefer provided Trooper Mahone with

a variety of information between August 5, 1979 and Au-

gust 27, 1979. Some of the information proved to be cor-

23a

rect, some of the information turned out to be incorrect

and some of the information does not appear to have been

verified.

14. Information provided by informant Sandefer to law

enforcement officers on the day before defendant Benson’s

arrest turned out to be incorrect. This information specif-

ically dealt with the arrival of Bruce Bell in Little Rock on

August 26, 1979.

15. None of the officers involved in the arrest of defend-

ant Benson, including Trooper Mahone, had done a com-

prehensive background investigation of informant San-

defer prior to the arrest of defendant Benson.

16. On August 27, 1979, law enforcement officers ver-

ified, by physical observation, every piece of information

given them by informant Sandefer with respect to the ar-

rival of “Jeff” except the fact of possession of cocaine.

17. After verifying informant Sandefer’s information the

officers that ultimately arrested defendant Benson had a

reasonable basis for concluding that Sandy Sandefer was a

reliable informant.

18. The evidence presented at the hearing on defendant.

Benson’s motion to suppress, when considered in its en-

tirety, demonstrates that Sandy Sandefer was a reliable

informant. His reliability was not, however, established

until the information he had given law enforcement offi-

cers was verified by independent observation on August

27, 1979.

ITI.

CONCLUSIONS OF LAW

1. The Fourth Amendment to the United States Con-

stitution does not prohibit every search but only those

which are “unreasonable”.

2. Reasonable searches are searches which are con-

ducted in accordance with the safeguards imposed by the

Fourth Amendment.

3. A search which is conducted without a search warrant

and, hence, without the intervention of a neutral and de-

24a

tached magistrate or judicial officer, is presumptively “un-

reasonable” within the meaning of the Fourth Amendment

to the United States Constitution.

4. Once it has been established that a search occurred

which did not comply with the Fourth Amendment’s War-

rant Clause, the government must then bear the burden of

overcoming the presumed invalidity of the search. In other

words, the government must bear the burden of estab-

lishing that a warrantless search was constitutionally

permissible under the relevant circumstances.

5. The exclusionary rule does not require automatic

suppression of all evidence seized in a warrantless search.

6. There are recognized exceptions to the mandates of

the Warrant Clause to the Fourth Amendment. One such

exception is a “search incident to a lawful arrest”. If a law

enforcement officer discovers evidence of a crime during a

search incident to a lawful arrest, then the fruits of the

search are admissible notwithstanding the absence of a

search warrant or judicial authorization for the search.

Two facts must be established before a warrantless search

can be justified as a “search incident to a lawful arrest”.

First, the search must be conducted contemporaneously

with an arrest which is lawful. The “lawful arrest” re-

quirement satisfies the Fourth Amendment’s mandate

with respect to the existence of “probable cause” since a

lawful arrest assumes that probable cause, in fact, exists.

If, on the other hand, the arrest is unlawful because of a

lack of probable cause to support the arrest, then the con-

stitutional justification for dispensing with the warrant

requirement vanishes. Secondly, a warrantless search can

be justified as a search incident to a lawful arrest only if

the scope of the search is limited to the circumstances

which permit such an intrusion in the first instance. In

other words, a warrantless search cannot be justified as a

search incident to a lawful arrest if the search extends be-

yond the recognized and legitimate scope of a search inci-

dent to a lawful arrest. A search of the person arrested

and of the area within their immediate access or control is

within the permissible scope of a search conducted inci-

25a

dent to a warrantless arrest. United States v. Robinson,

414 U.S. 218 (1973): United States v. Peep, 490 F.2d 903

(8th Cir. 1974); Chimel v. California, 395 U.S. 752, 763

(1969).

7. A search cannot be made lawful by what it turns up.

“In law it is good or bad when it starts and does not

change character from its success.” United States v. Di

Re, 332 U.S. 581, 595 (1948). Hence, the discovery of

cocaine during the course of defendant Benson’s arrest is

immaterial to a determination of the legality of the search

which produced it.

8. Under Arkansas law a law enforcement officer can

lawfully arrest a person without an arrest warrant if the

officer has “reasonable cause” to believe that the person to

be arrested has committed a felony. Ark. Stat. Ann. §43-

403 (Repl. 1977); Rule 4.1(a) (i) of the Arkansas Rules of

Criminal Procedure.

9. The “reasonable cause” standard imposed by Arkan-

sas law equates with the federal standards of probable

cause. Tweedy v. United States, 435 F.2d 702, 703 (8th

Cir. 1970).

10. Federal law enforcement officers may validly and

constitutionally make an arrest without a warrant where

probable cause exists to believe that the person to be ar-

rested has committed a felony. United States v. Rose, 541

F.2d 750, 756 (8th Cir. 1976).

11. Probable cause for an arrest “exists where the facts

and circumstances within the arresting officers’ knowledge

and of which they had reasonably trustworthy information

are sufficient in themselves to warrant a man of reason-

able caution in the belief that an offense has been or is

being committed.” United States v. Draper, 358 U.S. 307,

313 (1959).

12. Probable cause for an arrest may be based on hear-

say information such as a tip from a reliable informer.

United States v. Draper, supra at pp. 311-312; Brinegar

v. United States, 338 U.S. 160, 172-173 (1949).

26a

13. Where information received from an informant pro-

vides a significant portion of the probable cause for an ar-

rest, it must be shown that the informant is reliable. The

question of the reliability of an informant must be resolved

through the application of two tests: (1) the informant’s

hearsay tip must reveal some of the underlying circum-

stances from which the informant concluded that the nar-

cotics were located where he claimed they were; and (2)

the law enforcement officers who relied on the informant’s

tip must reveal some of the circumstances which led them

to conclude that the informant was credible and his infor-

mation was reliable. If either of the foregoing tests are not

satisfied, then an informant’s hearsay tip cannot form an

adequate basis for a finding of probable cause. Aguilar vy.

Texas, 378 U.S. 108, 114 (1964).

14. “Fourth Amendment analysis relating to a magis-

trate’s assessment of hearsay information presented in an

application for a search warrant can apply with equal force

to an assessment of the basis for a warrantless arrest by

Police officers.” United States vy. Regan, 525 F.2d 1151,

1155 (8th Cir. 1975).

15. “In assessing probable cause, we take an objective

view of all the facts, and the knowledge of all the officers

is to be evaluated collectively.” White v. United States,

448 F.2d 250, 254 (8th Cir. 1971), cert. denied, 405 U.S.

926 (1972).

16. Evidence establishing that an informant had not

previously provided information leading to the arrest or

conviction of another person does not, in and of itself, pre-

clude a finding of reliability. See McClearl y Vv. Sigler, 406

F.2d 1264, 1269 (8th Cir. 1969), cert. denied, 395 U.S. 984

(1969); United States v. Regan, supra at p. 1156.

17. An informant’s reliability may be established by in-

dependent corrobation of the information contained in the

informant’s tip. Jd. at p. 1156; United States vy. Marihart,

472 F.2d 809 (8th Cir. 1972), cert. denied, 419 U.S. 827

(1972). However, the mere corrobation of information con-

cerning activity which does not, of itself, appear to be

criminal in nature is insufficient to support a finding of re-

27a

liability. Spinelli v. United States, 393 U.S. 410, 415-417

(1969).

18. In the present case, informant Sandefer had given

law enforcement officers incorrect information with re-

spect to defendant Benson and Bruce Bell, his alleged co-

conspirator, on the day before defendant Benson’s arrest.

This fact coupled with the additional facts that the officers

had not worked with informant Sandefer but for a very

short period of time and the absence of evidence of past

reliability precluded the officers from concluding that San-

defer was reliable.

19. When, however, informant Sandefer provided a de-

tailed prognostication of defendant Benson’s activities on

the following day, August 27, 1979, and the officers, by

physical observation, corroborated every detail of the in-

formation which Sandefer had provided, then, at that

point in time, the officers had a basis for concluding that

informant Sandefer was reliable.

20. Probable cause to arrest defendant Benson arose at

the moment the reliability of informant Sandefer was con-

firmed, an event which occurred when informant Sandefer

flashed the headlights of his vehicle on August 27, 1979.

21. By the time informant Sandefer’s reliability had

been established and probable cause for an arrest existed,

exigent circumstances precluded the officers from apply-

ing for an arrest warrant and a search warrant.

22. The government has met its burden of establishing

that informant Sandefer was “reliable” under the tests set

forth in Aguilar v. Texas, supra, Spinelli v. United

States, supra, United States v. Harris, 403 U.S. 573

(1971) and Whitely v. Warden, 401 U.S. 560 (1971).

23. Since informant Sandefer’s reliability was estab-

lished it follows that there was probable cause for defend-

ant Benson’s warrantless arrest and ample justification for

the warrantless search of his person and the area within

his immediate control. United States v. Regan, supra.

Submitted this lst day of November, 1979.

ELSIJANE T. Roy

United States District Judge

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