State v. Culver

• Decision Date: 04 February 1972
• Citation: 288 A.2d 279
• Parties: STATE of Delaware, Plaintiff Below, Appellant, v. Daniel A. CULVER, Defendant Below, Appellee. STATE of Delaware, Plaintiff Below, Appellant, v. Richard L. GABRIEL, Defendant Below, Appellee. STATE of Delaware, Plaintiff Below, Appellant, v. Carlton E. DOUGLASS, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 279

288 A.2d 279

STATE of Delaware, Plaintiff Below, Appellant, v. Daniel A. CULVER, Defendant Below, Appellee.

STATE of Delaware, Plaintiff Below, Appellant, v. Richard L. GABRIEL, Defendant Below, Appellee.

STATE of Delaware, Plaintiff Below, Appellant, v. Carlton E. DOUGLASS, Defendant Below, Appellee.

Supreme Court of Delaware.

Feb. 4, 1972.

Upon appeal by the State.

Mason E. Turner, Jr., Daniel A. Durkin, and Martin A. Schagrin, Deputy Attys. Gen., Wilmington, for plaintiff below, appellant.

Bernard Balick, Asst. Public Defender, Wilmington, for Daniel A. Culver and Carlton E. Douglass, defendants below, appellees.

Sidney Balick, Wilmington, for Richard L. Gabriel, defendant below, appellee.

Before WOLCOTT, Chief Justice, CAREY and HERRMANN, Associate Justices:

HERRMANN, Justice:

These appeals by the State have been granted under 10 Del.C. § 9903 permitting the review of important questions of law, after final judgment in criminal cases, for the governance of future cases.

Involved are three cases of unlawful possession of drugs in which the Superior Court granted the defendants' motions for suppression of evidence on the ground of unlawful search and seizure. Final judgments of acquittal were entered upon indication by the State of inability to proceed without the evidence suppressed. The appeals have been consolidated for decision.

We are confronted with basic questions concerning the permissible scope, under the Fourth Amendment, of searches incident to lawful arrests for minor offenses, the arrestees being taken into actual custody.

I.

In the Douglass case, the youthful defendant was hitch-hiking interstate with a very young girl companion on U.S. Route 13 near Wilmington. They were arrested by a lone police officer for unlawfully soliciting a ride on the highway, the officer being dissatisfied as to their identification and destination. ¹ The officer 'frisked' Douglass for weapons and searched two suit cases standing on the ground beside Douglass. The stated purpose of the search was to ascertain the presence of dangerous weapons preliminary to placing Douglass, his companion, and their luggage in the police car for transport to the nearest magistrate. The officer found a large plastic bag of marijuana in one of the suit cases and, thereupon, arrested the defendant for unlawful possession of dangerous drugs. In the Superior Court, in a pre-trial proceeding on the drug charge, the defendant moved to suppress the evidence taken from the suit cases on the ground of unlawful search and seizure. The Superior Court granted the motion, stating:

'In the case at hand, there is no question that Officer Testa confronted the defendant and made an arrest properly. This, however, was for a minor violation, that is, hitchhiking. However, if we accept Justice Harlan's reasoning in the Terry case and his concluding opinion that once the confrontation was justified, the officer's right to take suitable measures for his own safety follows automatically; but, the next question is the scope of the measures taken in this case. Officer Testa testified that he had no reason to suspect the defendant of carrying a dangerous weapon nor did he fear for his safety. Therefore, the search of the suitcases in defendant's possession under these circumstances was unreasonable. There was no testimony that they were easily accessible to defendant for purposes of obtaining a weapon. Also, the officer could have taken other precautionary measures by placing the suitcases in the trunk of the police car, and therefore, the intrusion into the private property of the defendant was not necessary.'

The State contends that it was error for the Superior Court to base the disposition of this search and seizure question upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The State specifically objects to the implication of the Superior Court, based upon Terry, that the right of the police officer to search for a dangerous weapon in the instant case was dependent upon the subjective reasons he may have had to suspect that the defendant was carrying a dangerous weapon or the subjective grounds he may have had to fear for his own safety. ² Insofar as that implication may be read into the Trial Court's ruling we agree with the State's position.

The subjective rule of the Terry case is inapplicable in the instant case for the reason that Terry dealt with the role of the Fourth Amendment in the confrontation on the street between a suspect and a policeman investigating suspicious circumstances. There, the issue was the right of an officer to 'stop and frisk', for a dangerous weapon prior to an arrest. ³ Here, prior to the search, an arrest had actually been made and the police officer was arranging to take the defendant and his baggage into actual custody and into the police car for transport to the magistrate. The difference is significant. See Worthy v. United States, 133 U.S.App.D.C. 188, 409 F.2d 1105, 1108--1109 (1968).

Where, as here, a lawful arrest has actually been made, the reasonableness of a protective search for dangerous weapons incident to the arrest is governed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Under Chimel, after an arrest has been made and before the arrestee is taken into actual police custody, the arresting officer may automatically, without regard for subjective reasons to suspect the presence of weapons or to fear for his own safety, search the arrestee and the area 'within his immediate control' to assure that the arrestee does not have access to dangerous weapons. In marking the proper extent of a search incident to an arrest, the Court stated in Chimel:

'* * * 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. * * *. 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.' 89 S.Ct. at 2040.

Pedestrian and minor traffic cases, in which the search-incident-to-arrest concept has been applied to various situations in which the arrestee is being taken into actual police custody, include Morel v. Superior Court, 10 Cal.App.3d 913, 89 Cal.Rptr. 297 (1970); ⁴ State v. Moody, Mo., 443 S.W.2d 802 (1969); State v. Henneke, 78 Wash.2d 147, 470 P.2d 176 (1970); ⁵ Pugh v. Superior Court, 12 Cal.App.3d 1184, 91 Cal.Rptr. 168 (1970); ⁶ Gustafson v. State, Fla.App., 243 So.2d 615 (1971). ⁷

The defendant contends, however, that the search of the suit cases in the instant case may not be justified under Chimel because there was no evidence of the offense of hitch-hiking in danger of being destroyed, and because the defendant did not have easy and quick access to the contents of the closed suit cases, and any dangerous weapon therein, at the time of the arrest. The defendant contends that the police officer could have handcuffed the defendant or could have otherwise kept him at a sufficient distance from the suit cases standing on the roadside as to make it impossible for him to reach into them for a weapon. The fallacy of these arguments is that they measure the justification and reasonableness of the search as of the moment of arrest only; they fail to give due consideration to the necessities and realities of the entire period of custody from the time of arrest to the time of delivery of the defendant, his companion, and their luggage to the magistrate.

In the instant case, it must be assumed that the suit cases would necessarily be in the area of the defendant's 'immediate control', as defined in Chimel, at some point of time between arrest and delivery to the magistrate--either during the arrest process itself, or during the loading of the luggage into the police car, or during the travel to destination, or during the unloading of the luggage from the police car at destination. To assume otherwise is to assume that the police officer would act as porter for the luggage, into and out of the police car, and into and out of the magistrate court; and that the police car would be so constructed and equipped as to assure that the luggage would be carried outside the passenger area of the vehicle and thus be separated from the defendant. Such assumptions would ignore the realities and practicalities of the situation and, in our opinion, would be quite unreasonable.

We are of the opinion, therefore, that a logical extension of the Chimel rule made the suit cases in the instant case an area within the arrestee's 'immediate control' subject to a proper protective search for weapons without regard for subjective suspicions or fears. The 'exigencies of the situation made that course imperative.' Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

We conclude that there was ample justification for the protective search of the two suit cases after the arrest was made and before the defendant and the suit cases were taken into the police car; that, therefore, the search was reasonable and within the permissible scope of a protective search incident to an arrest under the Fourth Amendment. Compare United States v. Mehciz (9 Cir.) 437 F.2d 145 (1971), cert. den. 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971).

We are of the opinion that the evidence should not have been suppressed.

II.

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