U.S. v. Griffith

• Decision Date: 01 July 1976
• Docket Number: No. 75--1441,75--1441
• Citation: 537 F.2d 900
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norman Dean GRIFFITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 900

537 F.2d 900

UNITED STATES of America, Plaintiff-Appellee, v. Norman Dean GRIFFITH, Defendant-Appellant.

No. 75--1441.

United States Court of Appeals, Seventh Circuit.

Argued June 14, 1976.

Decided July 1, 1976.

Conrad L. Kellenberg, Denise Smith, Law Student, Notre Dame, Ind., for defendant-appellant; Mary Mullaney, Law Student, Notre Dame, Ind., on the brief.

John R. Wilks, U.S. Atty., Fort Wayne, Ind., John S. Leonardo, Asst. U.S. Atty., South Bend, Inc., for plaintiff-appellee.

Before SWYGERT, PELL and TONE, Circuit Judges.

TONE, Circuit Judge.

In this appeal from a conviction for possessing a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, defendant raises a single issue, viz., whether the search of his motel room at the time of his arrest violated his Fourth Amendment rights. We reverse the judgment on the authority of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

After an evidentiary hearing on defendant's motion to suppress, the District Court denied the motion. The facts, as found by the District Court and as further shown by the evidence, viewed in the light most favorable to the government, are as follows:

On the evening of September 20, 1974, Officer Michael Bolin of the Indiana State Police and Special Agent David Munson of the Federal Drug Enforcement Administration, both operating under cover, went with an informer ¹ to the Eight-Day Inn Motel in St. Joseph County, Indiana. While Munson waited, Bolin and the informer proceeded to room 261, which was occupied by defendant. Upon entering, the informer introduced Bolin to defendant as the person who had purchased a large quantity of amphetamine tablets from the informer earlier in the day. Bolin then negotiated with defendant for the purchase of more tablets, which defendant said he had with him. Arrangements were made to complete the transaction later that evening.

The room contained two beds with a night stand between them and other furniture. On one of the beds was an open suitcase, in which some clothes and two brown paper sacks were visible. Bolin did not see the contents of the sacks. On the other bed was a case three feet long, one foot wide, and three inches thick, which Bolin thought might contain a weapon. On the night stand between the beds was a clear plastic bag containing a green leafy substance which was never further identified. Bolin did not see any amphetamines or money.

Bolin did not arrest the defendant at this meeting, because, the District Court found, 'of concern for his own personal safety as well as wanting to call the United States Attorney and also get more money.' Bolin and the informer left, apparently with the understanding that they would return later that evening.

About one hour later Bolin, Munson, and four other state officers returned to the motel. They had neither an arrest warrant nor a search warrant. Munson, the District Court, found, had talked by telephone with an Assistant United States Attorney 'about obtaining a search warrant and he was unable to locate a local Magistrate or Federal Judge.' ² The officers obtained a pass key from the night clerk, advising him, as the court found, that they were going to make an arrest and they wanted the pass key 'to avoid damaging the door . . . and to minimize the risk to the people.' They then went to room 261 and, without knock or announcement, opened the door with the pass key.

As the officers opened the door and entered the room defendant was 'just exiting the bathroom' in his undershorts. ³ Agent Munson immediately told defendant he was under arrest. Defendant offered no resistance and did not comport himself in a threatening manner or give any indication of an intent to flee. Munson testified that he walked over to defendant, 'took hold of him' and 'placed him up against the wall and told him to place his hands up against the wall where (Munson) could see them.' Munson then advised defendant of his rights and that he was being taken into custody and instructed him to get dressed. Defendant thereupon proceeded to dress. He was not handcuffed and was allowed to move about the room to pick up clothing as he dressed.

Visible in the room at the time the officers entered it were a suitcase lying on one of the beds and a brown paper sack lying next to it. This was one of the two paper sacks Bolin had seen earlier that evening. After Agent Munson placed defendant under arrest, Officer Bolin went over to the bed and looked into the sack, which was open, and saw that it held glassine bags containing white tablets. One officer searched the bathroom and found $5,410 in currency concealed in a towel. The officers also opened the suitcase and found a second brown paper sack containing pills. They gathered defendant's belongings together, in the process of which they found a small quantity of hashish and the glassine bag containing a green leafy substance referred to earlier. They packed all of defendant's belongings, checked him out of the motel room, and took him to the police station.

In his oral argument in support of his motion to suppress the items seized in the search, trail counsel for defendant focused his argument on the legality of the arrest and did not argue that even if the arrest was lawful the search was unreasonable under Chimel v. California, supra. ⁴ Presumably for this reason, the District Court's memorandum of decision supporting the denial of the motion was addressed only to the lawfulness of the arrest. Defendant's counsel on appeal assumes the validity of the arrest and argues that the search was nevertheless unlawful. We likewise assume, without deciding, that the arrest was valid. ⁵

The extent of the officers' right to make a warrantless search incident to the arrest is governed by Chimel v. California, supra, in which, at 395 U.S. at 763, 89 S.Ct. at 2040, the Court laid down the following principles:

'(I)t 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 whthin 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 searching 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 search of the bathroom, a 'room other than that in which (the) arrest occur(red)' (395 U.S. at 763, 89 S.Ct. at 2040), was forbidden by Chimel, as was the search of the closed suitcase and other 'closed or concealed areas in that room itself.' (id.). This leaves the brown paper sack lying on the bed next to the suitcase. The contents were not subject to seizure under the plain-view doctrine even though the sack was 'open,' since Officer's Bolin's inspection was not inadvertent. See Coolidge v. New Hampshire, 403 U.S. 443, 469--470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion of Stewart, J.); Dombrowski v. Cady, 471 F.2d 280, 285--286 (7th Cir. 1972), rev'd on other grounds, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Bolin could see the contents only after walking over to the bed and peering into the sack. Whether this conduct was incident to the arrest depends on whether the sack was in 'the area from within which (defendant) might gain possession of a weapon or destructible evidence' Id. We think it was not. Immediately upon entering the room Agent Munson immobilized defendant. When Officer Bolin walked over to the bed, defendant, clad only in his undershorts, was either leaning on his hands against the wall or had been recently released from that position by Agent Munson. ⁶ Thus at that time the sack lying on the bed either was not within the area of defendant's immediate control or was within that area only because the officers had deliberately chosen to allow defendant to move near the sack.

Once a suspect is under the control of arresting officers, the are of permissible search under Chimel is narrowed accordingly. United States v. Mapp, 476 F.2d 67, 79--80 (2d Cir. 1973); United States v. Shye, 473 F.2d 1061, 1066 (6th Cir. 1973). In neither Mapp nor Shye does it appear that the suspect was handcuffed. While, in other cases, courts have distinguished between the situation in which the suspect is handcuffed and those in which he is not, United States v. Weaklem, 517 F.2d 70, 72--73 (9th Cir. 1975); United States v. Patterson, 447 F.2d 424, 427 (10th Cir. 1971), cert. denied, 404 U.S. 1064, 92 S.Ct. 748, 30 L.Ed.2d 752 (1972), the reason underlying the limited right of search allowed in Chimel is the danger that the defendant will seize a weapon or destructible evidence, and whether that danger exists depends upon the circumstances of each case. Regardless of Officer Bolin's earlier apprehensions about the odd-shaped case that might contain a gun, the officers obviously did not believe defendant was likely to resist, escape, or destroy evidence after he had been placed under arrest. They did not handcuff him, and they allowed him to walk about the room to get dressed instead of bringing his clothes to him.

If the freedom thus permitted defendant created the danger that he would walk within reach of the brown paper sack--and the record does not...