U.S. v. Johnson, 92-8179
| Decision Date | 23 March 1994 |
| Docket Number | No. 92-8179,92-8179 |
| Citation | 18 F.3d 293 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Skirvin George JOHNSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Skirvin George Johnson, pro se.
Adrienne Urrutia and Lucien B. Campbell, Federal Public Defenders, San Antonio, TX, for appellant.
Diane D. Kirstein, Richard L. Durbin, Jr., Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, TX, for appellee.
Appeal from the United States District Court for the Western District of Texas.
(Opinion February 28, 5th Cir., 1994 16 F.3d 69)
Petition for Rehearing
Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.
The petition for rehearing is granted to the extent set forth herein; otherwise same is denied, and the opinion of this court is reaffirmed.
The government appropriately requests a clarification and correction of our opinion with regard to the reference to remand for a new trial. We do not order a new trial; the sole reference to such in the opening paragraph of our opinion was inadvertent and is recalled. On remand the district court is first to review the record and identify any evidence obtained after the illegal seizure of Phoenix-related documents from Johnson's briefcase which may be deemed fruit of the poisonous tree, and thereafter the court is to determine whether the introduction of any illegally obtained evidence was harmless beyond a reasonable doubt.
Our colleague in his partial dissent and the government in its petition for rehearing misread our conclusion and holding about the contents of the briefcase. Both suggest that we have viewed the findings of fact by the trial judge in an inappropriate manner. We have not done so. We have accepted the findings of fact. We review the district court's conclusions of law de novo, however.
For searches which are incident to arrest we review de novo the application of the proper legal standard to the established facts. 1 We view the articulation and definition of the "area within immediate control" as a question of law, obviously dependent on material factual findings, much like the legal determination of probable cause. 2 Applying the proper legal standard to the accepted findings of fact, 3 we conclude that under the facts as developed in this particular case the trial court erred in its legal conclusion that the briefcase was within Johnson's area of immediate control at the time it was searched. It was not.
Except as herein in part granted, the application for rehearing is denied, the opinion is reaffirmed, the convictions are VACATED, and the matter is REMANDED for further proceedings consistent herewith.
For the reasons set forth previously, I continue to dissent in part.
Furthermore, I do not share the majority's view that the central issue in this case--i.e., whether the briefcase was within Johnson's "area of immediate control" 4--is a question of law to be reviewed de novo. The majority's analogy to the standard this Court has adopted for reviewing probable cause determinations is not persuasive authority. Unlike issues of probable cause, the issue of whether an object is within a defendant's area of immediate control does not require us to consider abstract legal doctrines, to weigh underlying policy considerations, or to balance competing legal interests. Consequently, the issue of immediate control is essentially a question of fact, which should be reviewed under a clearly erroneous standard. 5 See Fed.R.Civ.P. 52(a).
This Court has not definitively stated what standard of review applies when reviewing a Chimel determination of immediate control. The Seventh and Eighth Circuits review such determinations for clear error. See United States v. Morales, 923 F.2d 621, 627 (8th Cir.1991) (); United States v. Bennett, 908 F.2d 189, 193 (7th Cir.1990) (). The Ninth Circuit reviews Chimel determinations of immediate control de novo. See United States v. McConney, 728 F.2d 1195, 1206-07 (9th Cir.1984) (en banc).
For the foregoing reasons, I would review for clear error the district court's determination that Johnson's briefcase was within his area of immediate control.
1 United States v. Turner, 926 F.2d 883 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991).
2 See, e.g., United States v. Orozco, 982 F.2d 152 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2430, 124 L.Ed.2d 650 (1993) ().
3 Much has been made of the district court's purported factual findings on the pretrial motion to suppress. A close look at the record is compelled. The district court then stated:
After reviewing the...
To continue reading
Request your trial
-
U.S. v. Nascimento
...Others have undertaken de novo review. See, e.g., United States v. Abdul-Saboor, 85 F.3d 664, 667 (D.C.Cir. 1996); United States v. Johnson, 18 F.3d 293, 294 (5th Cir.1994) (opinion on rehearing). In our judgment, a bifurcated standard of review is appropriate. See United States v. Espinoza......
-
Price v. State
...1428-29 (D.C.Cir. 1990) (search of locked suitcase valid as incident to arrest because within defendant's reach) with U.S. v. Johnson, 18 F.3d 293, 295 (5th Cir.1994) (warrantless search of briefcase invalid when briefcase five or six feet away and out of defendant's Twenty-Fourth Annual Re......
- U.S. v. Oliver
-
State v. Jordan
...was not in arrestee's immediate control when numerous officers stood between arrestee and briefcase), decision clarified on rehearing, 18 F.3d 293 (1994), and United States v. Lyons, 706 F.2d 321, 330 (D.C.Cir.1983) (“[t]o determine whether a warrantless search incident to an arrest exceede......
-
Safe for Work? Analyzing the Supreme Court's Standard of Privacy for Government Employees in Light of City of Ontario v. Quon
...Scalia’s presumption of reasonableness standard. 41 United States v. Johnson, 16 F.3d 69, 73–74 (5th Cir.), clarifying decision on reh’g , 18 F.3d 293 (5th Cir. 1994); Am. Postal Workers Union v. U.S. Postal Serv., 871 F.2d 556, 559–61 (6th Cir. 1989). 32. Quon , 130 S. Ct. at 2628 (describ......