U.S. v. Graham

• Decision Date: 27 January 1981
• Docket Number: No. 80-1206,80-1206
• Citation: 638 F.2d 1111
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo J. GRAHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1111

638 F.2d 1111

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo J. GRAHAM, Defendant-Appellant.

No. 80-1206.

United States Court of Appeals Seventh Circuit.

Argued Sept. 30, 1980.

Decided Jan. 27, 1981.

William Levinson, Chicago, Ill., for defendant-appellant.

James R. Ferguson, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and PELL and BAUER, Circuit Judges.

PELL, Circuit Judge.

Defendant-appellant, Ricardo J. Graham, appeals his conviction for knowingly possessing a stolen United States Treasury check in violation of 18 U.S.C. § 1708. His sole claim on appeal is that the district court erred in denying his motion to suppress the check as the fruit of an illegal search.

The facts of the case are relatively simple. On May 18, 1977, Investigator Richard Peck of the Chicago Police Department obtained a warrant from a Cook County judge authorizing the search of defendant's person and apartment for cocaine, marijuana, and any instrumentalities constituting evidence of their possession. Investigator Peck proceeded with three other Chicago police officers to the defendant's apartment at 7643 South Saginaw in the City of Chicago. When they arrived, the defendant was not there. At approximately 5:00 p. m., the defendant and a female companion arrived in a van. As the defendant was exiting the van, the officers approached him, identified themselves as police officers and informed him that they had a warrant to search his person.

During this period, the defendant was wearing a shoulder bag or purse. Investigator Peck removed the bag and, as one of the other officers patted the defendant down and searched his clothing, Peck examined its contents. He discovered in the bag a small quantity of marijuana and a United States Treasury check made payable to Herman and Linda Washington. At that point he placed the defendant under arrest.

On the basis of the testimony and other evidence presented at the hearing, the trial court concluded that the defendant's purse was part of his person at the time he was accosted by the police and that the search of it was incident to the proper exercise of the warrant. Accordingly, it denied the defendant's motion to suppress. Following a trial to the bench, the defendant was found guilty and sentenced to three years probation.

The defendant's primary contention on appeal is that the search of his shoulder purse, once it was removed from his person and held within the exclusive control of the police, was unlawful, and the evidence seized from it should therefore have been suppressed. In support of this contention he argues primarily from the decision of the Illinois Appellate Court in People v. Redmond, 73 Ill.App.3d 160, 28 Ill.Dec. 774, 390 N.E.2d 1364 (1979), and its interpretation of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

In United States v. Chadwick, supra, the Supreme Court rejected the contention that the warrantless search of a two hundred pound footlocker more than an hour after it had been removed from the trunk of the arrestee's car and taken to the police station was justified as a search incident to a lawful arrest. In rejecting this contention, the Court stated:

... 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 access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

Id. 433 U.S. at 15, 97 S.Ct. at 2485.

In People v. Redmond, supra, the Illinois Appellate Court applied Chadwick to suppress evidence seized in the search of a shoulder purse similar to the one worn by the defendant here. The defendant in Redmond was placed under arrest for a vehicle registration law violation. When the arresting officers attempted to take the defendant into custody, a struggle ensued during which the shoulder purse worn by the defendant fell to the ground. After the defendant had been subdued, handcuffed and placed in the back seat of the squad car, one of the officers retrieved the purse from the ground and searched it. Several envelopes containing marijuana were discovered in the purse.

At the defendant's trial, in response to a motion to suppress, the state claimed that the evidence was seized in the course of a valid search incident to an arrest. The Illinois court reviewed a number of cases delineating the legitimate scope of a search incident to an arrest, including United States v. Chadwick, supra, and concluded that the circumstances existing at the time of the defendant's arrest did not justify the search of his purse. It therefore granted the defendant's motion.

Although he concedes the officers in the instant case had a valid warrant authorizing the search of his person, the defendant nevertheless argues that the same conclusion follows here. The warrant, he contends, authorized only the search of his person, not his purse. To determine whether the search of his purse was lawful it is necessary, he argues, to look to the law governing the scope of searches incident to arrest. That law, he states, as enunciated by the Supreme Court in United States v. Chadwick and interpreted by the Illinois Appellate Court in People v. Redmond, clearly indicates that the challenged search was illegal.

The defendant is mistaken not only in his assumption that the search conducted here is no different than a warrantless search incident to a lawful arrest, but also in his understanding of the legitimate scope of a search incident to arrest.

In United States v. Garcia, 605 F.2d 349 (7th Cir. 1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2966, 64 L.Ed.2d 841 (1980), this court recently held that two suitcases which were immediately dropped by their owner as she was placed under arrest, and which were then removed, along with their owner, from the doorway of a busy airport terminal, were within the legitimate scope of a search incident to the arrest. In upholding the search of the suitcases, the court rejected the contention that the mere fact that they had been dropped by the arrestee and moved several feet by the police...