2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-11-2002

USA v. Myers

Precedential or Non-Precedential: Precedential

Docket No. 01-3016

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Recommended Citation

"USA v. Myers" (2002). 2002 Decisions. Paper 647.

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PRECEDENTIAL 

 Filed October 11, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-3016 

UNITED STATES OF AMERICA, 

 Appellee 

v. 

CLIFTON MYERS; 

a/k/a SAMUEL JENKINS, 

 Clifton Myers, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

D.C. Criminal No. 00-cr-00591 

District Judge: Hon. William H. Yohn, Jr. 

Argued: April 8, 2002 

BEFORE: McKEE, BARRY & ALARCON,* 

Circuit Judges 

(Opinion Filed: October 11, 2002) 

_________________________________________________________________ 

* The Honorable Arthur L. Alarcon, Senior Circuit Judge of the United 

States Court of Appeals for the Ninth Circuit, sitting by designation. 

 

 Jonathan D. Libby, Esq. (Argued) 

 Elaine DeMasse, Esq. 

 Defender Association of Philadelphia 

 Suite 540 West--Curtis Center 

 Independence Square West 

 Philadelphia, PA 19106 

 Attorneys for Appellant 

 Lesley S. Bonney, Esq. (Argued) 

 Office of the United States Attorney 

 Suite 1250 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorney for Appellee 

OPINION OF THE COURT 

McKEE, Circuit Judge. 
We are asked to review the district court’s denial of a 

motion to suppress physical evidence that the defendant 

filed before entering a conditional guilty plea under Fed. R. 

Crim. P. 11(a)(2).1 The district court sentenced Clifton 

Myers to 15 years imprisonment after he pled guilty to 

possession of a firearm by a convicted felon, in violation of 

18 U.S.C. SS 922(g)(1) and 924(e). On appeal, Myers 

contends that the district court erred in denying his motion 

to suppress. We agree.2 

I. Background 

On July 19, 2000, Philadelphia Police Officer Leonard 

Azzarano responded to a 911 radio call reporting a 

disturbance in an apartment involving a person with a gun. 

It was later discovered that the 911 call was placed by 12 

year old Diane McKnight, who resided at the reported 

_________________________________________________________________ 

1. Myers reserved the right to challenge the district court’s suppression 

ruling as part of his plea agreement. 

2. The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We 

have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a). 

 2 

 

residence with her mother.3 Upon arriving at the reported 

location, Officer Azzarano saw a young adolescent girl 

standing approximately two feet outside of the apartment 

door. The girl was later identified as Diane McKnight, the 

same girl who had placed the 911 call. McKnight told the 

officer that her mother and her mother’s boyfriend were 

inside the apartment fighting. The girl also said that her 

mother’s boyfriend had a gun. 

After announcing that he was a police officer, Azzarano 

entered the first floor kitchen area but did not see anyone 

there. However, he heard raised voices and a lot of 

movement upstairs. Azzarano drew his gun, and again 

announced that he was a police officer. He then proceeded 

to the second floor where he encountered Lydia Bennett at 

the top of the stairs. The officer asked Bennett where the 

other person was, but Bennett told him that no one else 

was upstairs. Her voice was shaky and she appeared upset. 

Azzarano then noticed a man standing behind a door, 

and the officer ordered him to come out at gun point. The 

man, later identified as the defendant, Clifton Myers, 

complied with the order. As Myers came from behind the 

door, he was carrying a black school bag. The officer 

ordered Myers onto the floor. As Myers got on the floor, he 

threw the black school bag down, and it landed about three 

feet from him. Officer Azzarano handcuffed Myers’ hands 

behind his back as he was lying face down on the floor and 

proceeded to pat him down. The officer did not find 

anything during the pat-down. 

Azzarano then asked Myers his name, and Myers 
responded that it was "Samuel Jenkins." Two other officers 

then arrived on the scene, and they kept watch over Myers 

while Azzarano took Bennett downstairs to question her.4 

_________________________________________________________________ 

3. Appellee’s brief refers to the girl as "Diane Bennett," but Appellant’s 

brief as well as the transcripts in the Appendix refer to her as "Diane 

McKnight." 

4. Officer Azzarano explained that he "wanted to separate him [Myers] 

from his -- girlfriend, the girl’s mom. . . . I wanted to take her 

downstairs because in my experience, a witness or a complainant to a 

domestic abuse is usually unlikely to -- to describe accurately what had 

happened in front of someone who is -- who had been abusing them for 

fear of retribution." App. at 74a. 

 3 

 

During the brief questioning, Bennett told Azzarano that 

her boyfriend’s name was "Clifton." As this name varied 

from the name Myers had first given, Azzarano returned to 

the second floor to again ask Myers his name. As he 

approached Myers, Azzarano noticed that Myers kept 

looking at the black bag he had set down when he was 

arrested. Myers also appeared to be getting increasingly 

nervous and Azzarano noticed that Myers’ voice was 

shaking and halting. 

Azzarano opened the bag and discovered a gun inside. 

Myers was thereafter charged in state court with a violation 

of Pennsylvania’s Uniform Firearms Act. His prosecution 

was subsequently transferred to federal authorities who 

indicted him for violating 18 U.S.C. SS 922(g)(1) and 924(e), 

which makes it illegal for a convicted felon to possess a 

firearm. Prior to the scheduled trial date, the district court 

conducted the aforementioned suppression hearing on 

Myers’ motion to suppress the gun. McKnight and Officer 

Azzarano testified at that hearing on behalf of the 

government. 

At the conclusion of the hearing, the district court issued 

an oral ruling from the bench denying Myers’ suppression 

motion. The court expressed concern that Myers had been 

charged with unlawful possession of a firearm even though 

the weapon was not discovered until after his arrest. 

However, the court reasoned that Officer Azzarano had 

probable cause to arrest Myers either for simple assault 

pursuant to 18 Pa. C.S.A. S 2701, domestic violence5 

pursuant to 18 Pa. C.S.A. S 2711, or a violation of the 

Uniform Firearms Act pursuant to 18 Pa. C.S.A. S 6106 

("VUFA"). The court concluded that even though Myers 

ultimately was only charged in federal court with 

possession of a firearm by a convicted felon in violation of 

18 U.S.C. SS 922(g)(1) and 924(e), this did not negate the 

probable cause to arrest him on other charges. The court 

_________________________________________________________________ 

5. For purposes of clarity, we will use the term"domestic violence" to 

refer to the crime of simple assault committed in the context of a 
domestic relationship. However, as discussed infra, domestic violence is 

not a substantive crime separate and distinct from simple assault under 

the laws of Pennsylvania. 

 4 

 

found that the arrest was therefore valid and that the gun 

was properly seized pursuant to a search incident to that 

arrest. The court concluded: 

 I find, basically, that the backpack was within the 

 defendant’s immediate control and, therefore, I 

 conclude that this was a search incident to the arrest 

 and as I believe the defendant agreed at the time of 

 oral argument, although perhaps he has said 

 something to the contrary in papers since that time. 

App. at 171a.6 We disagree. 

Although we conclude that Officer Azzarano’s initial entry 

into the residence was justified, we hold that there was no 

probable cause to arrest Myers. Moreover, even assuming 

arguendo that Officer Azzarano had probable cause to 

arrest Myers, the suppression motion still should have been 

granted because the government has not satisfied its 

burden of establishing that the ensuing search was incident 

to a lawful arrest. 

II. Discussion 

A. Officer Azzarano did not have Probable Cause 

to Arrest Myers 

Probable cause exists whenever reasonably trustworthy 

information or circumstances within a police officer’s 

knowledge are sufficient to warrant a person of reasonable 

caution to conclude that an offense has been committed by 

the person being arrested. See Beck v. Ohio, 379 U.S. 89, 

91 (1964). The validity of an arrest is determined by the law 

of the state where the arrest occurred. See Ker v. California, 

374 U.S. 23, 37 (1963) (plurality opinion). 

_________________________________________________________________ 

6. The court’s reference to the defendant’s "concession" at oral argument 

is apparently based upon defense counsel’s response to an inquiry the 

court made as counsel was arguing the suppression motion. However, 

we do not believe that a fair reading of this record establishes that 

defense counsel conceded that the gun was properly seized during a 

search incident to an arrest. 

 5 

 

In reviewing a suppression order, we review the district 

court’s findings of fact for clear error. See United States v. 

Roberson, 90 F.3d 75, 77 (3d Cir. 1996), citing Ornelas v. 

United States, 517 U.S. 690, 699-700 (1996). We have 

previously found that: 
 [t]he determination that probable cause exists for a 

 warrantless arrest is fundamentally a factual analysis 

 that must be performed by the officers at the scene. It 

 is the function of the court to determine whether the 

 objective facts available to the officers at the time of 

 arrest were sufficient to justify a reasonable belief that 

 an offense was being committed. 

United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 

1984), citing Beck, 379 U.S. at 96. Our review of the district 

court’s legal conclusion that probable cause existed is de 

novo. See Ornelas, 517 U.S. at 699. 

We construe the record in the light most favorable to the 

government. See United States v. Riddick, 156 F.3d 505, 

509 (3d Cir. 1998). However, in doing so we do not supply 

the testimony that the government failed to elicit during the 

suppression hearing. Similarly, we must refrain from 

drawing inferences that are either not supported by the 

record, or contrary to it, in an effort to uphold an arrest. 

See United States v. Kithcart, 134 F.3d 529, 536 (3d Cir. 

1997) ("Kithcart I"), and United States v. Kithcart, 218 F.3d 

213 (3d Cir. 2000) ("Kithcart II"). 

In reviewing on-the-scene judgments of police officers we 

must, of course, remember that police officers may well 

"draw inferences and make deductions . . . that might well 

elude an untrained person." United States v. Cort, 449 U.S. 

411, 418 (1981). Nevertheless, an officer’s inferences and 

deductions can only justify a warrantless arrest if the 

government satisfies its burden of establishing the probable 

cause necessary to support the arrest. Notwithstanding the 

deference afforded the on-the-scene conclusion of police 

officers, probable cause must ultimately be decided by the 

courts, not the police. Glasser, supra. 

As noted earlier, the district court found probable cause 

to arrest Myers for either simple assault, domestic abuse, 

or a VUFA, and therefore denied the suppression motion. 

 6 

 

We conclude, however, that the police did not have 

probable cause to arrest for any of those offenses. 7 

1. Simple Assault 

The district court concluded that Myers committed an 

"ongoing" simple assault in the presence of Officer 

Azzarano. See App. at 169a. The Dissent agrees. See 

Dissent at 53. However, the facts simply do not support a 

finding that Officer Azzarano witnessed a simple assault, or 

that a simple assault was "ongoing" in his presence. 

The relevant portions of Pennsylvania’s simple assault 

statute are as follows: 

 (a). . . A person is guilty of assault if he: 
 (1) attempts to cause or intentionally, knowingly or 

 recklessly causes bodily injury to another; 

 . . . 

 (3) attempts by physical menace to put another in 

 fear of imminent serious bodily injury. . . . 

18 Pa. C.S.A. S 2701(a) (2002). Under Pennsylvania law, 

simple assault is a misdemeanor. As noted above, 

Pennsylvania law governs the validity of Myers’ arrest. See 

Ker, 374 U.S. at 37. The Pennsylvania legislature has 

specifically limited the authority of police officers to make 

warrantless arrests for misdemeanor offenses. An officer 

may conduct a warrantless arrest for a misdemeanor only 

if the offense is committed in the presence of the arresting 

officer or when specifically authorized by statute. See Pa. R. 

Crim. P. 502; Commonwealth v. Clark, 735 A.2d 1248, 1251 

(Pa. 1999); Commonwealth v. Bullers, 637 A.2d 1326, 1329 

(Pa. 1994). Officer Azzarano arrested Myers without a 

warrant. Therefore, Azzarano’s arrest for simple assault is 

not authorized under Pennsylvania law unless the record 

establishes that a simple assault occurred in his presence. 

_________________________________________________________________ 

7. The district court ruled that the arrest occurred when Myers was 

ordered to the floor and handcuffed behind his back, and we agree. See 

California v. Hodari D., 499 U.S. 621, 626 (1991). Moreover, neither 

party contests that Myers was arrested rather than"detained" at that 

point. 

 7 

 

Absent actual injury, subsection (1) of the simple assault 

statute requires an attempt to cause bodily injury. See 18 

Pa. C.S.A. S 2701(a)(1). Moreover, Pennsylvania requires 

"specific intent to cause bodily injury," in order to commit a 

simple assault. Interest of J.L., 475 A.2d 156, 157 (Pa. 

Super. 1984) (emphasis added). 

Although Azzarano heard Myers and Bennett quarreling, 

the officer never testified that he believed that Myers 

intended to injure Bennett.8 The Dissent suggests that the 

information from the police radio, combined with 

McKnight’s statement upon Azzarano’s arrival, led the 

officer to reasonably conclude that an armed man was 

fighting with "the informant’s" mother. See Dissent at 46.9 

In recounting the facts, the Dissent notes that McKnight 

"is the oldest of six children." Id. That may be interesting 

background, but it has nothing to do with the legality of 

Azzarano’s actions. See United States v. Ubiles , 224 F.3d 

213, 218 (3d Cir. 2000). It is clear that he had no 

knowledge of how many brothers and sisters McKnight had, 

or how many of them lived at that address. The only 

testimony regarding the number of siblings and the identity 

of who lived in the apartment came from McKnight at the 

suppression hearing. See App. at 59a. Moreover, from the 

record it appears that none of her brothers or sisters was 
home during this incident.10 

_________________________________________________________________ 

8. As noted above, the officer did explain that he took Bennett 

downstairs because of a concern that she may not be candid in Myers’ 

presence based upon a fear of retaliation. However, that does not 

amount to a reasonable belief that Myers had committed a simple 

assault in the officer’s presence. The government had every opportunity 

to establish that, but never even attempted to elicit any such testimony. 

9. In describing McKnight as an "informant," the Dissent is apparently 

attempting to draw support from cases that hold that information from 

a reliable informant (such as McKnight) can support probable cause to 

search under the Fourth Amendment. However, as we discuss in more 

detail below, the inquiry into the probable cause to search (and the 

related focus on the reliability of an "informant)," is not the equivalent of 

an inquiry into probable cause to arrest. Steagald v. United States, 451 

U.S. 204 (1981). 

10. Moreover, if the government had established that Azzarano 

reasonably believed that Myers was assaulting Bennett, and that such 

assault occurred in the officer’s presence, the number of children in the 

house would be irrelevant. 

 8 

 

Myers could properly have been arrested for simple 

assault under subsection (3) only if Azzarano reasonably 

believed that Myers was menacing Bennett to such an 

extent as to "put [her] in fear of imminent serious bodily 

injury[.]" 18 Pa. C.S.A. S 2701(a)(3). Azzarano believed there 

was a gun in the house, and common sense suggests that 

one can menace someone within the meaning of subsection 

(3) by waving a gun during an argument. See 

Commonwealth v. Savage, 418 A.2d 629, 632 (Pa. Super. 

1980). However, there is no evidence that Myers pointed a 

gun at Bennett in Azzarano’s presence or otherwise, and 

nothing supports the inference that Azzarano thought he 

had. The Dissent concludes that "Myers’ conduct in Officer 

Azzarano’s presence constituted an attempt by physical 

menace to put Ms. Bennett in fear of imminent serious 

bodily injury." Dissent at 56. However, Azzarano said that 

the only thing Myers did in his presence was hide behind 

a door. See App. at 70a-71a. 

Azzarano’s own statement of what he reasonably 

concluded from Myers’ actions appears on the record. We 

need not read between any lines. The officer testified that 

he pointed his gun at the door and ordered Myers to come 

out. When asked what happened next, he explained:"At 

that point, I was still by myself in the house and to be 

honest with you, did not know exactly what was going on. 

I handcuffed the male and placed him under arrest." Id. at 

71a. There is no testimony that Azzarano believed that 

Myers "menaced" anyone from behind the door by pointing 

a weapon at either Azzarano or Bennett. Although the 

officer certainly acted prudently in ordering Myers from 

behind the door, this does not mean that Myers was 

assaulting either Azzarano or Bennett as he hid from the 

officer, and any finding to the contrary is clearly erroneous. 
Officer Azzarano offered the following account of the 

arrest to the district court: 

 THE COURT: You said you arrested him. What did 

 you arrest him for? 

 OFF. AZZARANO: At that point, I was arresting him 

 for domestic assault. 

 THE COURT: And, what does that mean? 

 9 

 

 OFF. AZZARANO: Well, I was arresting him for -- I 

 could have been arresting him for terroristic threats or 

 domestic -- violations of domestic assault. . . . 

 * * * 

 THE COURT: Well, I’m not familiar with a crime of 

 domestic assault. That’s why I’m asking. 

 OFF. AZZARANO: . . . the arrest for actually 

 terroristic threats and, like I said, for domestic assault. 

 That would be assault or some type of threat level 

 towards someone who he had had a previous 

 relationship with. 

 * * * 

 THE COURT: You mentioned terroristic threats, 

 what was the threat? 

 OFF. AZZARANO: At that -- that’s what I was -- 

 that’s what I was trying to determine at that time. I 

 should -- I said domestic assault. What I meant to say, 

 in fact, was domestic abuse. 

 THE COURT: Well, but you said terroristic threats. 

 What was the threat? 

 OFF. AZZARANO: The threat that -- the threat 

 would be a handgun. 

Id. at 72a-73a (emphasis added). 

The Dissent argues that Azzarano testified that he 

arrested Myers for domestic assault because of his terrorist 

threats with a handgun and suggests that our "refusal . . . 

to accept Officer Azzarano’s undisputed testimony 

concerning the inferences he drew, based on the totality of 

the circumstances, is contrary to our duty as appellate 

judges . . . ." Dissent at 52. However, the only fair 

interpretation of Azzarano’s testimony is that he concluded 

that Bennett had been in a quarrel with Myers, and that 

Myers had a gun. That does not establish a reasonable 

belief that Myers had assaulted Bennett, and it certainly 

does not establish any assault in the officer’s presence.11 

_________________________________________________________________ 
11. As we discuss below, it is not a crime to possess a gun inside of 

one’s own home in Pennsylvania, see 18 Pa. C.S.A. S 6106(a), and 

nothing on the record suggests that Officer Azzarano believed Myers did 

not live with Bennett or that he did not have the right to possess a gun. 

 10 

 

Officer Azzarano’s own explanations of his actions refute 

a finding that Myers was assaulting anyone from behind 

the door. Azzarano ordered Myers to the floor and arrested 

him not because Myers assaulted Azzarano (or Bennett), 

but because the officer was attempting to get control of the 

situation for his own safety. As noted above, he testified 

that he was alone at that time and "did not know what was 

going on." App. at 71a. However, the fact that it was 

prudent to get control of the situation does not create the 

probable cause necessary for an arrest. See Terry v. Ohio, 

392 U.S. 1 (1968). 

In fact, at oral argument, the Assistant United States 

Attorney attempted to analogize Azzarano’s actions to a 

stop and frisk sanctioned by Terry v. Ohio, and the 

government devotes an entire section of its brief to arguing 

that "[t]he search of the bag was valid for a separate 

reason, as incident to a valid Terry search." Government’s 

Br. at 23 - 6. However, Terry has never been applied inside 

a home. Even assuming arguendo that Terry could be 

stretched to cover Officer Azzarano’s actions in a private 

home, Terry would only allow the officer to exercise control 

over Myers to protect himself and secure the situation. See 

Ubiles, 224 F.3d at 217. A Terry stop cannot justify an 

arrest unless additional developments that arise during the 

course of the temporary detention establish the necessary 

probable cause for an arrest. See Florida v. Royer, 460 U.S. 

491, 507 (1983). However, there are no such additional 

circumstances here. 

The Dissent concludes that Myers’ "menacing" behavior 

constituted an ongoing assault on both Bennett and Officer 

Azzarano, because the "threat of imminent harm to Ms. 

Bennett from an armed man did not cease." Dissent at 53. 

However, as we have noted, this record does not establish 

that Myers’ attempt to avoid detection by hiding behind a 

door constituted a simple assault of either Bennett or 

Officer Azzarano, and the officer’s testimony is not to the 

contrary. 

We realize that some of Azzarano’s testimony could, if 

taken out of context, support a finding that Myers and 

Bennett had been involved in a physical altercation, or that 

it was reasonable for Azzarano to have thought so. Such an 

 11 

 

altercation could support an inference that Myers actually 

intended to injure Bennett, or that he had put her in fear 

of imminent serious bodily injury. This is especially true 
given the information about a gun. It appears that the 

district court’s conclusion that Azzarano could have 

arrested Myers for simple assault is based upon just such 

an interpretation of the record, and the Dissent interprets 

the record in a similar fashion. However, when fairly viewed 

in context with all of the testimony here, the district court’s 

finding that Azzarano reasonably concluded that Myers and 

Bennett were "fighting" within the meaning of a simple 

assault is clearly erroneous.12 

The testimony establishes only that Azzarano believed 

that Myers and Bennett had been "fighting" in the sense of 

a verbal quarrel. It does not support a finding that he 

believed they were engaged in a physical altercation or 

struggle. It is also obvious that more than a verbal 

argument is required to commit the crime of simple assault 

under Pennsylvania law, and we suspect Pennsylvania law 

is not unique in that regard. 

Azzarano testified that, before entering the house,"the 

girl outside had stated that her mom was inside arguing 

with her boyfriend." Id. at 68a (emphasis added). Azzarano 

also recalled that McKnight told him that the boyfriend had 

a gun. See id. at 64a. When Azzarano encountered Bennett 

inside her home, her appearance and demeanor led 

Azzarano to conclude, not that she had been in a physical 

fight or threatened by an armed boyfriend, as the Dissent 

and district court conclude, but that she had been arguing. 

Officer Azzarano testified: 

 Her voice was shaky, she seemed upset and seemed 

 that she had not -- it didn’t seem that she had just 

 been involved in a normal discussion with someone. 

 She seemed that she had been involved in some type of 

 dispute. 

_________________________________________________________________ 

12. As we have stressed, even assuming that Azzarano believed that a 

physical altercation occurred between Myers and Bennett, it was clearly 

not in his "presence" as he was on the first floor and the quarrel took 

place out of sight on the second floor. Accordingly, the arrest would still 

not have been authorized under Pennsylvania law. 

 12 

 

Id. at 69a (emphasis added). Azzarano did not say that he 

heard anything that would be consistent with a physical 

altercation. He did not, for example, hear pushing, or 

furniture being thrown about or breaking. Nor did he hear 

anyone scream for assistance. He did not even testify that 

he heard anyone cursing. He merely heard two raised 

voices and "more than one set of footsteps . . . ." Id. 

Significantly, defense counsel objected to the 

characterization of a "fight" at one point during Azzarano’s 

testimony. App. at 65a. The court overruled the objection 

and reminded defense counsel that he could "explore it in 

more detail through questioning," on cross examination. Id. 

The prosecutor decided not to wait for cross examination, 

and attempted to elicit that detail by asking Azzarano: 
"could you be a little more specific about what it was that 

you heard and why you thought it was a fight?" Id. The 

officer responded to that invitation as follows:"I heard 

raised voices, I heard a lot of movement upstairs that did 

not sound like just a normal discussion." Id. 

The Dissent would minimize the significance of such 

testimony by suggesting that we are engaging in a"divide 

and conquer analysis" that ignores the totality of the 

circumstances. See Dissent at 41. However, it is only by 

placing the use of the term "fight" in its proper context on 

this record that we can fairly evaluate Officer Azzarano’s 

testimony, and the totality of the circumstances inside 

Bennett’s home when Myers was arrested. Clearly, we can 

not ignore the totality of the circumstances and focus on an 

isolated word in determining what the officer meant when 

he testified about a "fight." 

The district court attached a great deal of significance to 

Azzarano’s observations of Bennett’s demeanor, and the 

condition of her home. The officer testified that the house 

was "in disarray, especially the upstairs where they had 

been[,] . . . also the demeanor of the woman when I found 

her she seemed upset and visibly shaken." App. at 104a. 

This also falls short of establishing that an assault 

occurred in the officer’s presence. The record is devoid of 

any suggestion that the level of disarray was excessive to 

the point of being probative of a physical altercation. The 

most that we can conclude from the officer’s description of 

 13 

 

the state of the apartment is that it was messy. Despite 

having every opportunity to do so, the government never 

established that the appearance of the home justified a 

conclusion that any physical altercation had occurred 

there, and we can not supply that testimony for the 

government by drawing inferences that stretch the 

testimony beyond the parameters of this record. See 

Kithcart I, supra. 

The Dissent believes that our conclusion that the 

evidence only establishes that the residence was"messy," 

rather than evidencing a physical altercation, is an example 

of appellate fact finding and reweighing of evidence. See 

Dissent at 52. On the contrary, our conclusion is nothing 

more than the appropriate discharge of our function as a 

reviewing court. It is the officer’s testimony , not his 

credibility, that leaves a void in the government’s proof. 

Although we must interpret his testimony in the light most 

favorable to the government and afford it the benefit of all 

reasonable inferences, our appellate function neither allows 

us to turn a blind eye to the holes in the government’s 

proof, nor engage in the level of speculation that would be 

necessary to spackle over them. We do not conclude that 

the apartment was not in "disarray." Rather, we conclude 

that the government has not satisfied its burden of 

establishing that the appearance of the apartment (i.e. the 

"disarray") was such as to support a reasonable conclusion 
that a physical altercation had occurred there. In realizing 

that the government has failed to meet this burden, we do 

not "ignore[ ] Officer Azzarano’s daily experience in 

investigating domestic disputes and his prior observations 

of the condition of residences where violations of 

S 2701(a)(3) have occurred." Id. We are merely noting that 

Officer Azzarano never compared the appearance of 

Bennett’s residence to other residences where he had 

investigated claims of domestic abuse. That comparison is 

one of the missing links that invites speculation. It should 

be furnished by Azzarano’s testimony, not by "appellate fact 

finding" as to how Bennett’s residence compared to others 

that Azzarano had investigated. 

As defense counsel noted in argument at the close of the 

evidence at the suppression hearing: "[t]here’s no 

 14 

 

information that anything was broken. There’s no 

information that the doors or windows or furniture or 

plates or anything else was broken in the house that would 

indicate there was some type of a dispute going on." App. 

at 130a. Clearly, nothing was broken in the officer’s 

presence. To the extent that the district court concluded 

that Officer Azzarano’s testimony established a reasonable 

belief of a "fight" in the sense of a physical altercation 

between Bennett and Myers in the officer’s presence or 

otherwise, the court’s finding was clearly erroneous. 

Although we defer to the suppression court’s findings, we 

do not function as a rubber stamp. See United States v. 

Jones, 994 F.2d 1051, 1055 (3d Cir. 1993) (referring to 

review of magistrate’s determination of probable cause for 

issuance of a search warrant). 

Azzarano explained his apprehension upon seeing Myers 

hiding behind the doorway as follows: 

 [S]omething had happened there or something was 

 happening and there would be no reason for him to 

 hide from me if, in fact, it was just a simple argument 

 between two parties. 

App. at 70a. Thus, Azzarano testified that he was 

suspicious because hiding behind a door at the approach of 

a police officer is inconsistent with a "simple argument." 

Azzarano explained that he pointed his gun at the door 

Myers was hiding behind "because I believed he had a gun 

in his possession based upon the fact that the little girl had 

said so." Id. at 71a (emphasis added). He did not base his 

conclusion that Myers was armed on anything he heard or 

saw after he entered the residence. Azzarano candidly 

conceded that he arrested Myers because he was still by 

himself in the house and, "to be honest with you,[I] did not 

know exactly what was going on. I handcuffed the male and 

placed him under arrest." Id. Thus, we can not conclude 

that Azzarano had probable cause to arrest for assault 

without equating uncertainty and apprehension to probable 

cause. See Terry, supra. 
Based upon our review of this record we conclude that a 

finding that an assault was "ongoing" in the officer’s 

presence is clearly erroneous. We therefore hold that the 

 15 

 

government failed to satisfy its burden of establishing that 

the police had probable cause to arrest Myers for simple 

assault. 

2. Domestic Violence 

The district court also concluded that Officer Azzarano 

was justified in arresting Myers under Pennsylvania’s 

domestic violence law, 18 Pa. C.S.A. S 2711. That statute 

allows police officers to make a warrantless arrest for 

simple assault of a family or household member based 

upon probable cause even if the offense was not committed 

in the presence of the officer. The statute provides: 

 A police officer shall have the same right of arrest 

 without a warrant as in a felony whenever he has 

 probable cause to believe the defendant has violated 

 . . . S 2701 (relating to simple assault) . . . against a 

 family or household member although the offense did 

 not take place in the presence of the police officer. 

18 Pa. C.S.A. S 2711 (2002). 

Officer Azzarano’s testimony establishes that he regarded 

S 2711 as proscribing a substantive offense called "domestic 

abuse," "domestic violence," or "domestic assault."13 

However, S 2711 does not define a substantive offense. 

Rather, it merely authorizes the police to make a 

warrantless arrest for certain specified misdemeanors, 

including simple assault, even though the crime was 

committed outside the presence of the officer. See 

Commonwealth v. Smith, 552 A.2d 292, 295 (Pa. Super. 

1988) ("PA. R. CRIM. P.101 [now PA. R. CRIM. P. 502] allows 

an arrest without a warrant on probable cause when the 

offense is a misdemeanor not committed in the presence of 

_________________________________________________________________ 

13. For example, at one point in his testimony Officer Azzarano testified: 

"it seemed to me that a domestic abuse -- that crime had been 

committed." App. at 105a (emphasis added). As we noted earlier, 

domestic violence is not a crime substantively distinct from simple 

assault. See Commonwealth v. Smith, 552 A.2d 292, 295 (Pa. Super. 

1988) ("The statute [S 2711] added to the list of offenses which allow 

police officers to make warrantless arrests . . .[i]t does not create a new 

class of criminal offenses.") 

 16 

 

the officer only when such arrest is specifically authorized 

by statute."). However, the crime must be committed in the 

context of a domestic relationship, and there must still be 
probable cause to arrest for the underlying substantive 

offense; in this case, simple assault. 

Moreover, the arrest authority conferred by the statute is 

limited by the following proviso: "a police officer may not 

arrest a person pursuant to this section without first 

observing recent physical injury to the victim or other 

corroborative evidence." 18 Pa. C.S.A. S 2711. 

The district court concluded that there was sufficient 

corroboration to sustain an arrest under S 2711. The court 

noted: 

 When he [Officer Azzarano] arrived upstairs, he 

 encountered Cydia Bennett in the hallway. Her voice 

 was shaky. She was upset as if she had just been 

 involved in an altercation. She denied that anyone else 

 was in the house. 

 He also observed that the house was in disarray as if 

 there had been a struggle and he reasonably concluded 

 from Bennett’s demeanor that this was consistent with 

 that of a domestic abuse victim reluctant to walk away 

 with the police in the presence of the offender. 

App. at 167a-168a (emphasis added). 

We have already explained why the testimony does not 

support a finding that the officer had a reasonable belief 

that Myers had been involved in a physical altercation with 

Bennett. Likewise, the testimony does not corroborate that 

a "struggle occurred or that the officer thought one had." 

The officer’s testimony establishes only that he believed 

there had been a "dispute" not a "struggle." It is worth 

repeating that when the Assistant United States Attorney 

attempted to clarify the officer’s testimony by asking him to 

be more specific about "fighting" the officer merely 

confirmed that he believed that it was not a "normal 

discussion. . . ." Id. at 65a. We therefore can not conclude 

that the officer believed Bennett and Myers had been 

involved in a physical altercation without supplying 

testimony for him. 

 17 

 

Moreover, S 2711 only applies when an assault has been 

committed "against a family or household member[.]" 18 Pa. 

C.S.A. S 2711. Officer Azzarano admitted that he could not 

determine whether Myers shared the bedroom with Bennett 

or not. He did not see any personal effects belonging to a 

male in the bedroom area. See App. at 103a. Accordingly, 

there was even less probable cause to arrest for a violation 

of S 2711 than for a violation of S 2701 (simple assault). 

3. Violation of the Uniform Firearms Act ("VUFA") 

The district court reasoned that if Myers did not live in 

the house with Bennett he could not lawfully have a gun 

there without a license, and therefore he could have been 
arrested on a VUFA charge. The court further reasoned 

that, on the other hand, if Myers did live with Bennett, he 

could have been arrested under S 2711 for domestic 

violence even though he could not then have been arrested 

for a VUFA. However, the district court’s reasoning ignores 

the requirements of the respective statutes. 

Under Pennsylvania law, it is a third degree felony for a 

person to carry an unlicensed weapon "on or about his 

person, except in his place of abode or fixed place of 

business[.]"14 18 Pa. C.S.A. S 6106(a)(1). Inasmuch as it is 

not a crime to possess a gun inside one’s own residence, 

the mere fact of possessing a gun inside a residence can 

not supply probable cause to arrest for a VUFA violation. 

The district court justified a possible VUFA arrest by 

reasoning that if the apartment was not Myers’ residence, 

then there was sufficient probable cause to arrest him for 

the gun charge. As noted earlier, Azzarano did not know 

where Myers lived before arresting him, nor did he testify 

about any reasonable belief regarding Myers’ residence. See 

App. at 103a. Therefore, the fact that Azzarano did not 

know if Myers was being arrested in his own home is fatal 

to the reasonableness of the warrantless arrest for a VUFA 

_________________________________________________________________ 

14. Law enforcement officials and certain other individuals authorized by 

statute to carry weapons outside the home or business are excepted 

from this provision. See 18 Pa. C.S.A. S 6106(b). The statute reduces the 

offense to a first degree misdemeanor if the individual has not committed 

any other crimes. See id. at S 6106(a)(2). 

 18 

 

charge.15 See Ubiles, 224 F.3d at 217 (mere possession of a 

gun on a public street can not supply necessary suspicion 

to support even a Terry stop absent reasonable suspicion 

that the possession itself is unlawful). 

Moreover, the gun could not itself have provided probable 

cause to arrest Myers because it was not discovered until 

after he was arrested. It is axiomatic that "[a]n arrest is not 

justified by what the subsequent search discloses[.]" See 

Henry v. United States, 361 U.S. 98, 103 (1959). Myers’ bag 

was not searched until after he had been arrested.16 We 

therefore hold that Azzarano did not have probable cause to 

arrest Myers. 

The Dissent argues that "probable cause existed to arrest 

Myers before Officer Azzarano crossed the threshold," 

Dissent at 42, and argues that we have failed to explain 

how we can conclude that Officer Azzarano’s entry was 

justified and still hold that he did not have probable cause 

to arrest Myers after the officer was inside the home. Id. at 

43. This is based on the Dissent’s belief that holding that 

Azzarano’s entry was justified necessarily means that the 

entry was supported by both probable cause and exigent 

circumstances. Our colleague cites Kirk v. Louisiana, 536 

U.S. ___, 122 S. Ct. 2458, (2002) (per curiam), and Fisher 

v. Volz, 496 F.2d 333, 339 (3d Cir. 1974), to support that 
position. Id. As we note supra at note 9, the Dissent is 

mistakenly equating the circumstances that justified 

Azzarano’s entry to investigate with the probable cause 

required to arrest someone he found inside the home 

during that investigation. Our colleague thus conflates two 

similar, but distinct inquiries. 

_________________________________________________________________ 

15. The totality of Azzarano’s testimony establishes that Azzarano did not 

think the arrest was for a weapons offense at all. Rather, that charge 

was determined by the District Attorney’s Charging Unit after the fact. 

Although there is nothing wrong with that unit determining the 

appropriate offense with which to charge Myers, it is the reasonableness 

of Azzarano’s belief that controls our probable cause analysis. See Beck, 

379 U.S. at 91. 

16. Thus, we do not need to reach the issue of whether an arresting 

officer must have probable cause to believe a defendant is not licensed 

to carry a firearm. See App. at 172a. 

 19 

 

The Fourth Amendment serves two distinctly separate, 

though often intertwined interests. The probable cause 

necessary for an arrest requires a showing "that probable 

cause exists to believe that the subject [in the case of an 

arrest warrant] has committed an offense and thus. . . 

primarily serves to protect an individual from an 

unreasonable seizure." Steagald v. United States, 451 U.S. 

204, 213 (1981). However, the probable cause necessary to 

search "safeguards an individual’s interest in the privacy of 

his [or her] home and possessions. . . ." Id. The facts in 

Steagald were the converse of the facts here, but the 

Court’s Fourth Amendment clarification and distinction is 

no less applicable to Azzarano’s entry, or Myers’ arrest. 

In Steagald, the police had an arrest warrant for a 

suspect named "Lyons" and entered Steagald’s home 

without a warrant in search of Lyons. While inside 

searching for Lyons, they discovered cocaine and Steagald 

was subsequently convicted of the illegal possession of that 

controlled substance. In reversing the conviction, the Court 

held that, although the arrest warrant authorized seizure of 

Lyons, it did not allow police to enter Steagald’s residence 

unless that entry was supported by probable cause, exigent 

circumstances or consent. 451 U.S. at 206. The Court had 

noted this distinction in Texas v. Brown, 460 U.S. 730, 747 

(1983). There, in discussing the limitations on the"plain 

view" doctrine, the Court stated: 

 Although our Fourth Amendment cases sometimes 

 refer indiscriminately to searches and seizures, there 

 are important differences between the two that are 

 relevant to the plain view doctrine. The Amendment 

 protects two different interests of the citizen-- the 

 interest in retaining possession of property and the 

 interest in maintaining personal privacy. A seizure 

 threatens the former, a search the latter. 
460 U.S. at 748 (emphasis added). 

The information Azzarano received from the 12 year old 

girl standing two feet outside her residence certainly 

created a sufficient exigency to allow Azzarano to enter her 

home to investigate. It did not, however, authorize him to 

arrest anyone he found inside.17 Moreover, as the district 

_________________________________________________________________ 

17. The contrary view advocated by the Dissent would hold that 

Azzarano would have been justified in arresting Myers even if he and 

 20 

 

court noted, McKnight consented to the officer’s"intrusion." 

In discussing the suppression ruling, the district court 

noted that if McKnight did not "direct[ ]" Azzarano to enter 

her home, she at the very least consented to it. 18 

Accordingly, we can not agree with the Dissent’s attempt to 

redefine our inquiry by arguing that "probable cause 

existed to arrest Myers before Officer Azzarano crossed the 

threshold." Dissent at 42. Our colleague characterizes the 

district court’s analysis as being a "well-reasoned 

discussion of the pertinent facts and the applicable legal 

principles . . .". Id. at 48. However, nowhere does the 

district court so much as suggest that Azzarano’s entry 

furnished the necessary probable cause to arrest Myers 

inside Bennett’s home. In fact, the court’s entire analysis is 

to the contrary. Moreover, the prosecution does not even 

attempt to uphold this arrest by suggesting that Azzarano 

had probable cause to arrest Myers simply because 

circumstances justified his entry into Bennett’s home. 

Our colleague rests much of his argument that 

Azzarano’s initial entry allowed him to arrest Myers on our 

opinion in Fisher v. Volz, 496 F.2d 333, 339 (3d Cir. 1974), 

and the Supreme Court’s ruling in Kirk v. Louisiana, 536 

U.S. ___, 122 S. Ct. 2458, (2002) (per curiam). In Kirk, the 

state court had upheld a warrantless arrest inside the 

defendant’s home based upon the officers’ reasonable belief 

that the defendant had sold drugs, and that delay would 

jeopardize the evidence. Police obtained an arrest warrant, 

but only after the defendant had been arrested. The state 

_________________________________________________________________ 

Bennett were in the middle of a peaceful dinner, sharing jokes and 

laughing, when Azzarano "crossed the threshold simply because 

Azzarano’s initial entry was justified." 

18. The district court stated, "I find that the officer, in fact, did have an 

implied invitation, if not a direction by McKnight to enter the home and 

stop a potentially deadly situation." App. at 167a. The defendant does 

not focus on that finding on appeal, and we therefore need not decide if 

a minor can "consent" to a police entry of her adult parent’s residence 

under the Fourth Amendment. We note this aspect of the case only to 

ensure that the nature of Azzarano’s Fourth Amendment "intrusion" be 

kept in context, and to further explain why that intrusion does not 

support any arrest he may have made thereafter. 
 21 

 

court had characterized the defendant’s assertion that no 

exigent circumstances justified the warrantless intrusion as 

of his home as "irrelevant." 122 S.Ct. at 2459. In a per 

curiam opinion that is less than two pages long, the Court 

remanded and instructed the state court to determine if 

exigent circumstances justified the entry. 

We are also not persuaded by our colleague’s citation to 

our opinion in Fisher. There, several plaintiffs sued the 

Newark Police Department and various police officers based 

upon a practice of conducting warrantless searches of the 

plaintiffs’ apartments in search of someone who was named 

in an arrest warrant. We noted that we had not previously 

decided a case "involving entry into a third party dwelling 

in reliance on only a valid arrest warrant," and we then 

surveyed the decisions of courts that had addressed that 

issue. We held that "police may not constitutionally enter 

the home of an innocent citizen in search of a suspected 

offender for whom they have a valid warrant, even under 

exigent circumstances, unless they also have probable 

cause to believe that the suspect will be found on the 

premises." 496 F.2d at 342-3. Even if Fisher could 

somehow be stretched to suggest that police may arrest 

someone they find inside a residence based solely upon the 

legality of the entry, we would still have to note that we 

decided Fisher seven years before the Supreme Court 

decided Steagald and clarified the different Fourth 

Amendment interests arising from the distinction between 

a search on the one hand, and a seizure (i.e. arrest) on the 

other. 

Given the distinct inquiry and interests implicated when 

considering the Fourth Amendment’s protection from illegal 

seizures, as opposed to illegal searches, we conclude that, 

despite the exigent circumstances that allowed Azzarano to 

enter this residence, he did not have probable cause to 

arrest Myers once he got inside.19 Accordingly, the evidence 

_________________________________________________________________ 

19. See also United States v. Sheik-Abdi, 37 F.3d 1240 (7th Cir. 1994). 

The court in Sheik-Abdi distinguished between exigent circumstances 

that would justify a warrantless entry into a home, and probable cause 

needed for arrest. See id. at 1246. Though the facts are arguably 

distinguishable from the circumstances of Azzarano’s entry (paramedics 

 22 

 

that was seized pursuant to that arrest should have been 

suppressed.20 Furthermore, even if we assume arguendo 

that the arrest was lawful, we would still find that the gun 

should have been suppressed as the subsequent search 

was not incident to the arrest. 

B. The Search Was Not Incident To An Arrest 

"[W]hen 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." Chimel v. 

California, 395 U.S. 752, 762-63 (1969). This exception to 

the general warrant requirement arises from a common 

_________________________________________________________________ 

were summoned to the arrestee’s home when his wife called an 

ambulance after he passed out, and they in turn called police when 

Sheik-Abdi became belligerent and aggressive), the analysis is relevant 

because it clearly distinguishes between the privacy interests presented 

by the Fourth Amendment’s search warrant requirement, and the 

requirement of probable cause to arrest. The court stated: 

 Once the veil of the home has been legally pierced, we see no need 

 for police officers to turn a blind eye to crime, so long as the arrest 

 is otherwise effected in compliance with the constitutional 

 requirement of probable cause (and other relevant state law). 

Id. (emphasis added) (parenthetical in original). See also Parkhurst v. 

Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (concern for the safety of others 

can justify warrantless entry into private residence). 

20. The Dissent suggests that by insisting that the prosecutor elicit 

sufficient evidence to support a finding of probable cause for a 

warrantless arrest, we are confusing the "quantum of evidence required 

to demonstrate probable cause for an arrest with the heavy burden 

placed on the Government to present sufficient evidence of each element 

of a crime that persuades the trier of fact of the guilt of the defendant 

beyond a reasonable doubt." Dissent at 50, citing Draper v. United States 

358 U.S. 307, 312 (1959). However, we do not insist that the government 

prove the elements of the various crimes that Myers could theoretically 

have been arrested for. We do, however, insist that the government 

satisfy its burden of establishing a reasonable belief that Myers 

assaulted Bennett in the officer’s presence inside this private residence, 

or a reasonable belief that Myers had committed one of the other crimes 

that the district court concluded he could have been arrested for. 

 23 

 

sense acknowledgment of the dynamics of an arrest, the 

right of privacy, and the need to allow police officers to 

protect themselves. It is a carefully tailored and narrowly 

crafted license that addresses the tension between the need 

for effective law enforcement on the one hand, and 

constitutionally guaranteed liberty on the other. 

Accordingly, the scope of such a search must be"strictly 

tied to and justified by the circumstances which rendered 

its initiation permissible." Id. at 762 (internal quotations 

omitted). A search incident to arrest is therefore only 

"reasonable" within the meaning of the Fourth Amendment 

when it is confined to, and controlled by, the circumstances 

that warrant the intrusion. 

Thus, although it might appear "reasonable" for an 

arresting officer to conduct a search that is as broad as 

possible following an arrest, the Constitution does not allow 

it. As the Supreme Court explained in Chimel: 
 It is argued . . . that it is reasonable to search a man’s 

 house when he is arrested in it. But that argument is 

 founded on little more than a subjective view regarding 

 the acceptability of certain sorts of police conduct, and 

 not on considerations relevant to Fourth Amendment 

 interests. Under such an unconfined analysis, Fourth 

 Amendment protection in this area would approach the 

 evaporation point. It is not easy to explain why, for 

 instance, it is less subjectively reasonable to search a 

 man’s house when he is arrested on his front lawn--or 

 just down the street--than it is when he happens to be 

 in the house at the time of arrest. 

Id. at 764-65 (internal quotation marks omitted). 

Although this constitutional principle is now well 

established, its application has been uneven, and 

determining the contours of "reason" within the confines of 

Fourth Amendment privacy interests has led to anything 

but consistent results. 

At the outset, we note that a search incident to arrest 

has both geographic and temporal limitations: 

 A legitimate search incident to arrest is limited to the 

 arrestee’s person and to the area within his immediate 

 24 

 

 control, meaning the area from which he might gain 

 possession of a weapon or destructible evidence. 

United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 

1996) (internal quotation marks omitted), citing Chimel, 395 

U.S. at 763. In United States v. Abdul-Saboor , 85 F.3d 664 

(D.C. Cir. 1996), the D.C. Circuit Court of Appeals noted 

that, in determining if an object is "conceivably accessible 

to the arrestee," we are to assume that "he was neither an 

acrobat [nor] a Houdini." Abdul-Saboor , 85 F.3d at 669 

(D.C. Cir. 1996), citing United States v. Lyons , 706 F.2d 321 

(D.C. Cir. 1983). We can safely assume that Myers was 

neither. Yet, inasmuch as he was handcuffed behind his 

back while lying face down on the floor, and "covered" by 

two armed police officers when Azzarano returned and 

searched the bag, Myers would have had to possess 

qualities of both if we are to conclude that he had access to 

the bag at that point. 

The court in Abdul-Saboor actually upheld the search 

there citing our analysis in Virgin Islands v. Rasool, 657 

F.2d 582 (3d Cir. 1981). However, the circumstances that 

caused the court to uphold the search are quite different 

from the circumstances here. 

In Abdul-Saboor, the arrestee attempted to retrieve a 

loaded shotgun after police entered his room, and he 

"specifically requested entry to the area to be searched." 

Abdul Saboor, 85 F.3d at 670. Moreover, a second gun and 

magazine had been discovered in his apartment before the 
search. In upholding the search, the court in Abdul-Saboor 

took pains to distinguish its earlier holding in United States 

v. Lyons, 706 F.2d 321 (D.C. Cir. 1983), wherein the court 

had reversed the district court’s order denying suppression. 

The Abdul-Saboor court noted that in Lyons, the arrestee 

was handcuffed, the closet that was searched was several 

yards away, six police officers were in the room with Lyons, 

and no weapons had yet been uncovered. See Abdul-Saboor, 

85 F.3d at 670, citing Lyons, 706 F.2d at 330-31. Moreover, 

Lyons never made any attempt to reach the closet and 

Lyons had collapsed and been revived before the search 

began. See Abdul-Saboor, 85 F.3d at 670, citing Lyons, 706 

F.2d at 324. 

 25 

 

In contrast, the arrestee in Abdul-Saboor indicated that 

he would reach for a weapon if given the opportunity, and 

he was not suffering from any "infirmity that would impede 

his physical ability." Abdul-Saboor, 85 F.3d at 670. 

Therefore, the court in Abdul-Saboor was persuaded by the 

arresting officers’ concern over Abdul-Saboor’s ability to 

grab concealed weapons, notwithstanding the fact that he 

was physically restrained. 

Significantly, the Abdul-Saboor court noted: 

 Absent some objective basis upon which to conclude 

 that the arresting officer had no reason to fear either 

 the arrestee or the environment in which the arrest 

 unfolded, we agree with our sister circuits that a 

 search of the area where the arrest occurred in 

 circumstances such as this case presents is a search 

 incident to arrest.21 

Id. (emphasis added). The court then cited numerous cases 

to support that proposition. However, the cases cited by 

Abdul-Saboor, as well as those cited by our dissenting 

colleague, either rely upon the Supreme Court’s analysis of 

the proper scope of a vehicular search in New York v. 

Belton, 453 U.S. 454 (1981), see United States v. Palumbo, 

735 F.2d 1095, 1096-97 (8th Cir. 1984) and United States 

v. Queen, 847 F.2d 346, 352-54 (7th Cir. 1988), 22 or 

directly involve vehicle searches, see United States v. 

Cotton, 751 F.2d 1146, 1147-48 (10th Cir. 1985); and 

Virgin Islands v. Rasool, 657 F.2d 582, 585, 588-89 (3rd 

Cir. 1981). As we shall discuss, vehicle searches are not 

analogous to the search here, and we will take this 

opportunity to clarify the difference between the two 

situations. 

_________________________________________________________________ 

21. As we shall see, circumstances surrounding Myers’ search present 

just such an "objective basis." 

22. The court in Queen cites numerous cases that address the issue of 

whether a search was properly limited to the area of the arrestee’s 

immediate control, including Lyons. See Queen , 847 F.2d at 354. The 

other cases cited in Queen concern vehicular searches (including Belton), 
as well as several non-vehicular searches, and the Queen court does not 

distinguish between those two situations. 

 26 

 

The Supreme Court addressed the scope of a vehicular 

search in New York v. Belton, supra. There, a state trooper 

stopped a speeding car for a traffic citation. Upon 

approaching the car, the officer noticed four male 

occupants and also smelled the odor of burnt marijuana. 

The officer also saw an envelope marked "Supergold" -- 

which he associated with marijuana -- on the floor of the 

car. Belton, 453 U.S. at 456. He therefore ordered all of the 

men out of the car and patted each one down after 

separating them into four separate areas on the highway. 

He then returned to their car, retrieved the envelope 

marked "Supergold," and discovered that it contained 

marijuana. He gave each of the arrestees the warnings 

required under Miranda v. Arizona, 384 U.S. 436 (1966), 

and then searched the passenger compartment of the car. 

The search revealed a black leather jacket belonging to 

Belton on the back seat. The officer unzipped one of the 

pockets and discovered cocaine inside. Id. 

Belton moved to suppress that evidence arguing that it 

was the fruit of an illegal search. The Supreme Court 

granted certiorari defining the issue as follows: 

 When the occupant of an automobile is subjected to a 

 lawful custodial arrest, does the constitutionally 

 permissible scope of a search incident to his arrest 

 include the passenger compartment of the automobile 

 in which he was riding? That is the question at issue in 

 the present case. 

Id. at 455 (emphasis added). 

The Court began its analysis by restating the parameters 

of Terry v. Ohio and Chimel v. California, and reiterating 

that "the scope of [a] search must be strictly tied to and 

justified by the circumstances which rendered its initiation 

permissible." Id. (internal quotation marks omitted). The 

Belton Court noted that Chimel permitted a limited search 

to prevent an arrestee from gaining weapons or destroying 

evidence, but concluded that that justification did not allow 

the police to routinely search an arrestee’s room or"all of 

the desk drawers or other closed or concealed areas of that 

room itself." Id. at 458. (Internal quotation marks omitted). 

The Court observed that, although the principle derived 

 27 

 

from Chimel and Terry was therefore quite straightforward, 

its application had posed difficulties. See id. 

The Court noted, that despite its efforts, "no 

straightforward rule has emerged from the litigated cases 

respecting the question involved here -- the question of a 
proper scope of a search of the interior of an automobile 

incident to a lawful custodial arrest of its occupants." Id. at 

459 (emphasis added). The Belton Court declared that it 

intended to address these difficulties by establishing a clear 

set of principles to govern such searches in the context of 

a warrantless arrest in order to provide police officers with 

a set of rules which would allow them "to reach a correct 

determination beforehand as to whether an invasion of 

privacy is justified in the interest of law enforcement." Id. at 

458 (quoting La Fave, "Case-By-Case Adjudication" versus 

"Standardized Procedures": The Robison Dilemma, 1974 S. 

Ct. Rev. 127, 142). 

The Court declared: 

 While the Chimel case established that a search 

 incident to an arrest may not stray beyond the area 

 within the immediate control of the arrestee, courts 

 have found no workable definition of the area within 

 the immediate control of the arrestee when that area 

 arguably includes the interior of an automobile and the 

 arrestee is its recent occupant. Our reading of the 

 cases suggests the generalization that articles inside 

 the relatively narrow compass of the passenger 

 compartment of an automobile are in fact generally, 

 even if not inevitably, within the area into which an 

 arrestee might reach in order to grab a weapon or 

 evidentiary ite[m]. In order to establish a workable rule 

 this category of cases requires, we read Chimel’s 

 definition of the limits of the area that may be searched 

 in light of that generalization. Accordingly, we hold that 

 when a policeman has made a lawful custodial arrest of 

 the occupant of an automobile, he may, as a 

 contemporaneous incident of that arrest, search the 

 passenger compartment of that automobile. 

Belton, 453 U.S. at 460 (brackets and emphasis in original) 

(note and internal quotation marks omitted). In a further 

 28 

 

attempt to clarify that it was only applying the rule of 

Chimel to the unique circumstances of a post-arrest 

warrantless search of an automobile, the Court stated, "our 

holding today does no more than determine the meaning of 

Chimel’s principles in this particular and problematic 

context. It in no way alters the fundamental principles 

established in the Chimel case regarding the basic scope of 

searches incident to lawful custodial arrest." Id. at 460 n.3. 

In applying its analysis to the facts before it, the Court 

concluded that since the search of Belton’s jacket "followed 

immediately" after the arrest, and since the jacket "was 

located inside the passenger compartment of the car . . . 

the jacket was thus within the reach of the area which we 

have concluded was ‘within the arrestee’s immediate 

control’ within the meaning of the Chimel case.’ " Id. at 462. 

Accordingly, the Court held that the seizure was lawful. 
We applied Belton in Rasool, supra. There, the police also 

stopped an automobile. They then removed the defendant 

from the car and handcuffed him. After the defendant was 

handcuffed, the police searched the inside of the car and 

found a bag on the back seat which they removed and 

searched. Inside, they found a gun. The district court 

suppressed that evidence, but we later reversed. 23 We 

defined the issue pertaining to the seizure as follows: 

"whether the police had probable cause to search the 

vehicle as distinct from any container found within[it]." 

Rasool, 657 F.2d at 585. We ultimately held that the police 

had probable cause for the search. 

We found in Rasool that the Belton court had been 

careful to note that its holding merely applied the teachings 

of Chimel to the special circumstances presented by an 

automobile search. See id. at 587, citing Belton, 453 U.S. at 

460. We emphasized that the Court characterized its 

holding in Belton as "doing no more than determin(ing) the 

meaning of Chimel’s principles in this particular and 

problematic content. It in no way alters the fundamental 

principles established in . . . Chimel . . . ." Rasool, 657 F.2d 

at 588 (emphasis added), quoting Belton, 453 U.S. at 460 

n.3. 

_________________________________________________________________ 

23. The district court ruled before the Supreme Court decided Belton. 

 29 

 

Thus, as Judge Wellford points out in his dissent in 

Davis v. Robbs, 794 F.2d 1129 (6th Cir. 1986), "Belton was 

a case concerning the application of the search incident to 

arrest exception to the search of an automobile." Davis, 794 

F.2d at 1132 n.2 (Wellford, J., dissenting). It does not apply 

in the context of a search inside of a private home where 

"Fourth Amendment rights are preeminent. . . ." Id. at 

1132. The majority in Davis did affirm a search incident to 

arrest although the arrestee was handcuffed and placed in 

a squad car prior to the seizure of a rifle in his house. 

However, it is clear that the Davis majority strayed beyond 

the parameters that the Supreme Court tried to erect in 

Belton. We are neither persuaded by the majority’s analysis 

in Davis nor bound by its holding. 

In United States v. Cotton, 751 F.2d 1146 (10th Cir. 

1985), a car was searched even though the arrestees had 

been handcuffed and removed from the car prior to the 

search. However, since Cotton involved an automobile, it 

was therefore governed by the special rules which the 

Supreme Court set forth in Belton. The court in Cotton was 

careful to note that important consideration. The court 

stated: 

 We therefore believe that a legal analysis of a seizure of 

 an object found within an automobile pursuant to a 

 search incident to a lawful arrest, must of necessity 

 involve special considerations that set it apart from the 

 general law regarding searches incident to lawful 
 arrest. 

Cotton, 751 F.2d at 1148. The court made that statement 

after citing Chimel and Belton and noting that Belton was a 

case "in which a search incident to arrest involving 

automobiles was directly at issue." Id. at 1148. 

The Dissent points to United States v. Silva, 745 F.2d 

840 (4th Cir. 1984), a non-vehicular case. See Dissent at 

55. There, the Court of Appeals for the Fourth Circuit did 

uphold the seizure of a zippered bag although the arrestee 

-- who was handcuffed behind his back -- was sitting on 

a bed in a motel room surrounded by armed FBI agents. 

The court explained its reasoning as follows: "we are of the 

opinion that any objections Silva may have to the validity of 

 30 

 

this search and seizure are disposed of by this court’s 

recent en banc opinions in United States v. Litman, 739 

F.2d 137 (4th Cir. 1984) and United States v. Porter, 738 

F.2d 622 (4th Cir. 1984)." Silva, 745 F.2d at 847. The court 

noted that those cases relied upon Belton in holding that a 

lawful custodial arrest was sufficient to justify a 

contemporaneous warrantless search of the person arrested 

as well as the "immediately surrounding area[.]" Id. Since 

there was "no dispute that the zippered bag [that was 

seized from Silva] was in the immediately surrounding area 

and that it was searched contemporaneously with the 

arrest," the court concluded that the trial court did not err 

in denying the motion to suppress. Id. The Silva court never 

discussed whether the arresting officers actually believed 

that the bag was accessible or under the arrestee’s control. 

It merely relied upon a mechanical application of the rule in 

Belton, even though that rule did not apply to the situation 

before it. Moreover, the authority relied upon -- Litman and 

Porter -- do not make the analysis in Silva any more 

persuasive. 

In Litman, the court upheld the seizure of a shoulder bag 

from the arrestee in a hotel room. However, at the time of 

the seizure, the arrestee was not handcuffed. The arresting 

officers had pointed their weapons at him while he was 

being frisked, but one of the agents then holstered his 

pistol and searched the arrestee’s bags. See Litman, 739 

F.2d at 137. Therefore, the situation in Litman was different 

as the arrestee there was not physically restrained. Myers 

was physically restrained and incapacitated. Further, the 

Litman court concluded that Belton controlled its analysis 

without even acknowledging that Belton was an automobile 

search. The Litman court therefore read far more into 

Belton than the Supreme Court intended. In doing so, it 

ignored the language of the very precedent it sought to 

apply. 

In Porter, supra, the court affirmed the denial of a motion 

to suppress a carry-on bag that had been seized"incident 

to an arrest" at an airport. The court relied upon Belton and 

declared that the Supreme Court had there "established a 
‘bright-line’ rule that a lawful custodial arrest justifies a 

contemporaneous search without a warrant of the person 

 31 

 

arrested in the immediately surrounding area." Porter, 738 

F.2d at 627 (citations omitted), citing Belton , 453 U.S. at 

463 (Brennan, J., dissenting). Again, the court never even 

mentioned the narrowing language in Belton, nor the 

Court’s attempt to limit its holding there to the problematic 

area of applying Chimel to car searches incident to the 

arrest of an occupant of the car. 

United States v. Palumbo, 735 F.2d 1095 (8th Cir. 1984), 

is no more persuasive. See Dissent at 55. There, the Eighth 

Circuit affirmed the district court’s denial of the defendant’s 

motion to suppress evidence seized during a search that 

followed a warrantless arrest in a hotel room. That evidence 

was "hidden behind a dresser drawer . . . ." Palumbo, 735 

F.2d at 1097. The defendant argued that it was therefore 

"inaccessible to him because he was handcuffed in the 

presence of several officers." Id. 

However, it was not at all clear that the defendant was as 

incapacitated as he argued. The Court of Appeals noted 

that the arresting officer’s testimony at the suppression 

hearing "indicates that [the arrestee] was not handcuffed 

when the officers retrieved the cocaine behind the drawer 

within an arm’s reach from where Palumbo sat." Id. at 

1097. The court then ventured further stating: 

"accessibility, as a practical matter, is not the benchmark." 

Id. Rather, the court concluded that the issue was whether 

the seized item "was in the area within the immediate 

control of the arrestee within the meaning of Chimel v. 

California." Id. The court cited Belton and explained that 

"[t]his rule defines the area generally which may be 

searched, and is not constrained because the arrestee is 

unlikely at the time of the arrest to actually reach into that 

area." Id., citing Belton, 453 U.S. at 459-60. However, the 

court’s citation to Belton refers to the portion of Belton 

wherein the Court was attempting to apply the general rule 

of Chimel to the specific circumstance of an automobile 

search. Belton has no application to Palumbo’s hotel room 

nor to the residence in which Myers was searched. 

Finally, United States v. Queen, 847 F.2d 346 (7th Cir. 

1988), cites numerous cases in upholding a search incident 

to an arrest where the arrestee was also handcuffed behind 

his back inside of a residence. See Dissent at 55. There 

 32 

 

again, however, authority is cited by the court with no 

discussion of the distinction between those cases involving 

seizures from vehicles on the one hand,24 and non-vehicular 

searches on the other.25 See Queen, 847 F.2d at 354. 

The court’s discussion in Queen is, however, helpful to 
resolving some of the inconsistencies that have evolved in 

applying the rule of Chimel beyond the vehicular context 

described in Belton. In Queen, agents had a warrant for the 

defendant’s arrest. They knew that he was a convicted felon 

who had not surrendered pursuant to a court order. The 

police also suspected that Queen was armed and 

dangerous. The police executed the warrant at his 

residence after surrounding it. They searched the house 

where an agent observed a pile of clothes and a blanket in 

an open closet. Suspecting Queen to be hiding underneath, 

the agent immediately drew his gun and ordered Queen to 

come out with his hands up. After initially refusing to 

comply with the order, Queen finally emerged from beneath 

the pile. The agents patted him down while keeping their 

guns trained on him. They then handcuffed him in an area 

_________________________________________________________________ 

24. New York v. Belton, 453 U.S. 454 (1981); United States v. Hatfield, 

815 F.2d 1068, 1071 (6th Cir. 1987); Davis v. Robbs, 794 F.2d 1129 (6th 

Cir. 1986); United States v. Cotton, 751 F.2d 1146 (10th Cir. 1985); 

Virgin Islands v. Rasool, 657 F.2d 582 (3d Cir. 1981). 

25. United States v. Palumbo, 735 F.2d 1095 (8th Cir. 1984); United 

States v. Roper, 681 F.2d 1354 (11th Cir. 1982); United States v. 

Fleming, 677 F.2d 602 (7th Cir. 1982); United States v. Garcia, 605 F.2d 

349, 352 (7th Cir. 1979). Fleming is an anomaly. That case involved a 

search of luggage incident to a warrantless arrest at an airport. The 

police had reliable information (much of which was independently 

confirmed) that the arrestee would be arriving with heroin. Police 

watched the arrestee as she claimed her luggage from the baggage area. 

She dropped her luggage when the police approached and identified 

themselves. She then became hysterical, and exclaimed, " ‘I knew I 

shouldn’t have done this,’ and proceeded to urinate on her clothing." 605 

F.2d at 352. Officers then retrieved the luggage from the airport doorway 

where she had dropped it, and actually brought it to"within one foot of 

[the arrestee’s] new position" before opening the bags. She "was not 

handcuffed or otherwise restrained during this time." Id. Fleming 

distinguished that situation from the situation in United States v. 

Chadwick, 433 U.S. 1 (1977), and ruled that the search was reasonable 

under Chimel. 

 33 

 

that was approximately three feet from the open closet 

where he had been hiding. See id. at 349. After he was 

handcuffed, one of the agents inspected the area around 

the blanket and found an uncovered .357 magnum revolver 

which was loaded with six bullets. See id. at 350. 

Queen moved to suppress the fruits of that search 

contending that it exceeded the permissible scope of 

Chimel. He argued that "it was inconceivable that, with his 

hands cuffed behind his back, he could have twisted away 

from two armed agents and dived past a third to grab the 

handgun lying on the closet floor." Id. at 353. The 

government responded by arguing that the agents 

"reasonably believed that any weapon on the floor of the 

closet was within the grabbing range of Mr. Queen. .. . 

[and that] policemen do not need to presume, that, in a 
stressful situation like the arrest here, the defendant will 

act in a wholly rational manner." Id. The court accepted the 

government’s argument noting that, although Queen was 

"neither an acrobat [nor] a Houdini[,]" the nature of the 

circumstances that the officers were facing counseled 

against requiring "punctilious judgments regarding what is 

within and what is just beyond the arrestee’s grasp. Thus, 

searches have sometimes been upheld even when hindsight 

might suggest that the likelihood of the defendant reaching 

area in question was slight." Id. (internal citations and 

quotations omitted). 

This concern over using "hindsight" to punctiliously 

overrule an officer’s split-second judgment explains courts’ 

justifiable reluctance to suppress a weapon where the 

objective circumstances suggest that the officer’s actions at 

the time of the arrest reflect the officer’s belief that an 

arrestee may gain access to the weapon. As the Supreme 

Court noted in United States v. Chadwick, 433 U.S. 1 

(1977): 

 The potential dangers lurking in all custodial arrests 

 make warrantless searches of items within the 

 immediate control area reasonable without requiring 

 the arresting officer to calculate the probability that 

 weapons or destructible evidence may be involved. 

Chadwick, 433 U.S. at 14-15 (internal quotation omitted). 

 34 

 

Thus, where, in the heat of an arrest, an officer 

concludes that a particular item is within the arrestee’s 

grasp, courts are extremely reluctant to subsequently 

determine that the officer’s conclusion was unreasonable 

and thereby suppress whatever evidence may have been 

found. This explains the result in Queen and further 

explains why the court in Abdul-Saboor stated that it would 

uphold such seizures as being incident to arrest under 

Chimel, "absent some objective basis [to conclude] that the 

arresting officer had no reason to fear either the arrestee or 

the environment in which the arrest unfolded." AbdulSaboor, 85 F.2d at 670 (emphasis added).26 

Of course here, Officer Azzarano’s actions provide just 

such an "objective basis" to conclude that he was not 

concerned with Myers reaching into the bag. Officer 

Azzarano handcuffed Myers’ hands behind his back while 

Myers was face-down on the floor. The officer then 

immediately conducted a brief search that included 

"frisking" Myers’ waistband.27 See App. at 72a. However, 

Azzarano then left Myers and went downstairs to speak 

with Bennett. During that interval, Myers remained 

"covered" by two backup officers who arrived immediately 

after Azzarano had arrested and handcuffed Myers. The bag 

was approximately three feet away from Myers and zipped 

closed. Obviously, if the officer had been worried at the time 

of the arrest that Myers could reach the black bag though 

handcuffed and covered by two police officers, he would 
have searched the black bag when he searched Myers’ 

waistband. Instead, he felt secure enough to leave Myers 

and go downstairs to speak with Bennett. Indeed, Azzarano 

did not state that he opened the bag because he was 

concerned that Myers had access to it. He testified that he 

_________________________________________________________________ 

26. In explaining the inconsistent application of Chimel, we do not mean 

to suggest that a reviewing court must be bound by the officer’s on-thescene conclusion about the necessity of a search regardless of the 

environment where the arrest occurs or the extent to which an arrestee 

is actually incapacitated and under police control. 

27. As noted earlier, the arrest was effectuated when Myers was ordered 

to the ground at gunpoint and handcuffed. If the arrest had been valid, 

the initial frisk of Myers’ waistband could clearly be characterized as a 

search incident to an arrest under Chimel. 

 35 

 

was concerned about possibly leaving a weapon behind in 

a home with Bennett and her minor child. This is a far cry 

from Chimel’s license to search for a weapon that could be 

used to effectuate an escape, injure the arresting officer(s) 

or destroy evidence. Had he searched the bag along with 

the waistband before going downstairs, we would have a 

different set of circumstances to consider against the 

teachings of Chimel and its progeny. However, he did go 

downstairs and his explanation for seizing the bag leaves 

us confident that the seizure was not "reasonable" within 

the meaning of the Fourth Amendment because it was not 

incident to Myers’ arrest. 

We agree with the district court’s conclusion that the bag 

was "within [Myers’] immediate control and possession 

when Azzarano first observed him." App. at 171a (emphasis 

added). The district court also stated that "at this moment 

[referring to when Azzarano first saw Myers], Azzarano still 

felt that someone else could be in the home and his 

primary purpose and concern was to obtain the weapon 

and to get it out of the house where Bennett and the 

children lived." Id. (emphasis added). 

That is when Myers was arrested, and that is when 

Myers’ waistband was searched. However, that is not when 

the bag was searched. The search of the bag came 

sometime later, after Azzarano left Myers and went 

downstairs, leaving Myers restrained, physically 

incapacitated, and under the control of two armed police 

officers. 

Moreover, the district court’s analysis conflates two 

separate and independent justifications for searching 

incident to an arrest. In addition to conducting a search for 

the protection of the officer or to prevent the destruction of 

evidence, the police may also conduct a protective"sweep" 

under certain circumstances when they fear an accomplice 

may be lurking nearby. See Sharrar v. Felsing , 128 F.3d 

810 (3d Cir. 1997). Nothing on this record suggests that 
Azzarano was concerned that any confederate was lurking 

about. 

Moreover, Azzarano’s testimony establishes that he was 

not initially concerned about the bag even when he went 

 36 

 

back upstairs and returned to Myers. He did not return to 

search the bag. Azzarano testified: "I went back upstairs to 

find out what this -- what the defendant’s name actually 

was, because he had, in fact, given a fake name." App. at 

76a (emphasis added). Azzarano only decided to open the 

bag because Myers appeared to look at it in a manner that 

suggested he did not want the police to see what was 

inside. He stated: "[t]he defendant’s demeanor led me to 

believe that there was something in the bag that he didn’t 

want me to see. At that point, I opened the bag, and 

discovered this handgun." Id. at 77a. Moreover, since he 

returned to Myers to question him about his name, not to 

search the bag, the record establishes that Azzarano’s 

concern for the danger the gun posed arose only after he 

opened the bag. Therefore, this search can not be sustained 

as a search incident to an arrest. See Chimel , 395 U.S. at 

762-63.28 

III. 

Before concluding we pause to amplify a point we made 

at the beginning of our discussion. We briefly mentioned 

the constitutional imperative that we not overlook our 

institutional role when reviewing police conduct and 

applying the exclusionary rule. See Mapp v. Ohio , 367 U.S. 

643 (1961). Given our colleague’s concern, that point merits 

amplification. We are, of course, mindful of the exceedingly 

difficult nature of the split-second decisions police officers 

must make on a daily basis. The Dissent scoldingly 

cautions against "[a]ppellate judges [who] spend their days 

cloistered in secure buildings guarded by United States 

Marshals, protected from strangers and the public by 

electronically controlled doors and elevators[,]" reviewing 

_________________________________________________________________ 

28. The Dissent notes that "Ms. Bennett’s residence was not searched. 

No property of hers was seized. She was not arrested or charged with 

any crime." Dissent at 44. That is, of course, irrelevant. Myers clearly 

had a reasonable expectation of privacy while in Bennett’s home and 

neither the Government, nor the district court suggests otherwise. See 

Minnesota v. Olson, 495 U.S. 91 (1990). Accordingly the fact that his 

property rather than his host’s was seized is as irrelevant as the fact 

that he was in someone else’s home when his own reasonable 

expectation of privacy was violated and he was seized. 

 37 

 

arrest decisions of trained police officers. Dissent at 53. As 

our dissenting colleague reminds us, "[w]e have no 

expertise in the investigation of volatile domestic 
altercations. We have no first-hand experience regarding 

the threat of violence presented by persons involved in a 

domestic dispute when a police officer attempts to act as a 

peacemaker in calming their fury." Id. 

Although such sentiments have a great deal of popular 

appeal, we must never allow our lack of police training to 

seduce us into abdicating our judicial function for the sake 

of preserving evidence of criminal activity. It is obvious that 

police officers do not enjoy the secure and contemplative 

atmosphere afforded judges, and judges do not patrol city 

streets. It is just as obvious that judges are not trained in 

policing. Nevertheless, the Constitution mandates that the 

ultimate determination of the legality of an arrest be made 

by judges, not by police officers. 

Though a concerned public may not always appreciate it, 

the Supreme Court has explained that it can hardly be 

otherwise under the Constitution: "If subjective good faith 

[of the arresting officer] alone were the test, the protections 

of the Fourth Amendment would evaporate, and the people 

would be secure in their persons, houses, . . . and effects, 

only in the discretion of the police." Beck , 379 U.S. at 97 

(internal quotation marks omitted). "[T]here is nothing new 

in the realization that the Constitution sometimes insulates 

the criminality of a few in order to protect the privacy of us 

all." Arizona v. Hicks, 480 U.S. 321, 329. Thus, our respect 

for, and appreciation of, the difficulties and dangers of law 

enforcement do not justify surrendering our constitutional 

duties to police officers. 

More than half a century ago, the Supreme Court 

warned: 

 The point of the Fourth Amendment, which often is not 

 grasped by zealous officers, is not that it denies law 

 enforcement the support of the usual inferences which 

 reasonable men draw from evidence. Its protection 

 consists in requiring that those inferences be drawn by 

 a neutral and detached magistrate instead of being 

 judged by the officer engaged in the often competitive 

 enterprise of ferreting out crime. 

 38 

 

Johnson v. United States, 333 U.S. 10, 13-14 (1948). 

Despite the understandable concerns voiced in dissent by 

our esteemed and distinguished colleague, we do not 

believe that we can uphold this arrest or search without 

doing violence to the Fourth Amendment guarantees that 

we are sworn to uphold. As we stated in Fisher , "effective 

law enforcement . . . can only be maintained by a respect 

for the law." 496 U.S. at 342. 

IV. Conclusion 

For all the reasons set forth above, we conclude that the 

district court erred in denying the defendant’s motion to 
suppress physical evidence. Therefore, we will reverse the 

order of the district court denying the motion to suppress 

and remand for further proceedings consistent with this 

opinion.29 

_________________________________________________________________ 

29. Myers also argues that 18 U.S.C. S 922(g)(1) is unconstitutional as it 

improperly proscribes purely intrastate possession of a firearm and 

therefore lacks the requisite nexus to interstate commerce. However, that 

argument is clearly foreclosed by our holding in United States v. 

Singletary, 268 F.3d 196 (3d Cir. 2001), and we therefore reject it 

without discussion. 

 39 

 

ALARCON, Senior Circuit Judge, Dissenting: 

I respectfully dissent. I cannot join the Majority’s opinion 

for several reasons: 

First. The Majority has failed to discuss the dispositive 

issue raised by Myers in this appeal: Whether "the 

warrantless entry to 3203-B Henry Avenue was conducted 

without probable cause to believe a crime had been 

committed and without exigent circumstances." (emphasis 

added). Instead, the Majority states summarily:"Although 

we conclude that Officer Azzarano’s initial entry into the 

residence was justified, we hold there was no probable 

cause to arrest Myers." Maj. Op. at 5. As I will explain later, 

this conclusion ignores recent Supreme Court authority 

and is inconsistent with the law of this circuit which holds 

that a warrantless entry violates the Fourth Amendment 

unless the police have probable cause even in the presence 

of exigent circumstances. 

Second. I would affirm the district court’s opinion 

because the record shows that, prior to entering, Officer 

Azzarano had probable cause to believe that a person 

within the residence was armed with a weapon and fighting 

with a resident. 

Third. Exigent circumstances justified the warrantless 

entry to protect Ms. Bennett from death or serious injury 

from a man armed with a gun. 

Fourth. The record demonstrates that the search of 

Myers’s backpack was incident to a lawful arrest. 

I 

In reviewing a district court’s findings of historical facts, 

we must "give due weight to inferences drawn from those 

facts by resident judges and local law enforcement officers." 

Ornelas v. United States, 517 U.S. 690, 699 (1996). We 

must also construe the record in the light most favorable to 

the Government. United States v. Lawes, 292 F.3d 123, 126 

(2d Cir. 2002); United States v. Runyan, 290 F.3d 223, 234 

(5th Cir. 2002); United States v. Cook, 277 F.3d 82, 84 (1st 

Cir. 2002). 
 40 

 

The "totality of the circumstances" informs a probable 

cause determination. Illinois v. Gates, 462 U.S. 213, 230-31 

(1983). In evaluating the totality of the circumstances in a 

given case, a court may not consider each fact in isolation. 

United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 750- 

51 (2002). In United States v. Arvizu, the Court rejected the 

Ninth Circuit’s "divide and conquer analysis" that 

considered each circumstance separately to determine 

whether it was susceptible of an innocent explanation. Id. 

at 751. 

The Majority has concluded, in alternative analyses, that 

Officer Azzarano did not have probable cause to arrest 

Myers, and "even if we assume arguendo that the arrest 

was lawful, we would still find that the gun should have 

been suppressed as the subsequent search was not 

incident to the arrest." Maj. Op. at 23. Clearly, at least one 

of these conflicting conclusions, if not the entire Majority 

opinion, is dictum.1 

My review of the record has persuaded me that the 

district court did not clearly err in concluding that Officer 

Azzarano was aware of "reasonably trustworthy information 

. . . sufficient to warrant a prudent man in believing that 

[Myers] had committed or was committing an offense." Beck 

v. Ohio, 379 U.S. 89, 91 (1964). Because the reasonably 

trustworthy information obtained by Officer Azzarano from 

Diane McKnight was sufficient to warrant him to believe 

that an armed man was presently threatening the safety of 

his victim, the officer’s entry into the residence was 

supported by probable cause and exigent circumstances. 

His observations within the residence corroborated the 

information that he received from Ms. McKnight. The record 

also demonstrates that the district court did not err in 

_________________________________________________________________ 

1. "Indeed, any time the Court relies on alternative reasoning, both 

analyses are not necessary to the decision of the case, and are therefore 

dicta. Thus, by adding additional reasons for its decision, the Court is 

effectively undermining what precedential value the opinion may have." 

Matthew F. Weil & William C. Rooklidge, Stare Un-Decisis: The Sometimes 

Rough Treatment of Precedent in Federal Circuit Decision-Making, 80 J. 

Pat. & Trademark Off. Soc’y 791, 795 (1998) (emphasis added) (internal 

quotation marks and citation omitted). 

 41 

 

concluding that the search of Myers’s backpack was 

incident to a lawful arrest. 

II 

Viewed in the light most favorable to the Government, the 

record demonstrates that Officer Azzarano received a radio 

dispatch that "a person with a gun" was involved in "a 

disturbance with a female companion" at 3202 Henry 
Avenue, Apartment B. When he received the assignment to 

go to that location, Officer Azzarano was a block and a half 

or two blocks away. He was so close to the scene that he 

did not have to activate his emergency lights and siren. At 

3202 Henry Avenue, Officer Azzarano observed an 

adolescent female, Diane McKnight, standing approximately 

two feet outside the doorway to Apartment B. Ms. McKnight 

was the source of the 911 call. She is the daughter of the 

female inside the apartment. She is the oldest of six 

children. Ms. McKnight appeared to be frightened. 

Ms. McKnight informed Officer Azzarano that "her mom 

and her mom’s boyfriend were in the house arguing and 

having a fight and that her mom’s boyfriend was armed 

with a gun." Ms. McKnight’s statement and her distraught 

demeanor provided Officer Azzarano with reliable 

information that her mother’s boyfriend was threatening 

her safety while armed with a gun. "[W]here an informant 

is not a paid, unknown tipster but instead an identified 

eyewitness to a crime who voluntarily reports his 

observations to the police, the trustworthiness of such a 

person may be presumed." Commonwealth v. Weidenmoyer, 

539 A. 2d 1295 (Pa. 1988). See also United States v. 

Valentine, 232 F.3d 350, 354-55 (3d Cir. 2001) (discussing 

informant reliability). Based on this information alone, an 

officer would reasonably believe that Ms. McKnight’s 

mother was facing a threat of serious bodily injury. Thus, 

probable cause existed to arrest Myers before Officer 

Azzarano crossed the threshold. 

Myers contends that "the warrantless entry of 3202-B 

Henry Avenue was conducted without probable cause to 

believe a crime had been committed and without exigent 

circumstances. Therefore, everything that followed-- the 

 42 

 

arrest and subsequent seizure of the gun -- were unlawful, 

and the gun should have been suppressed for this reason, 

without more." The Majority has failed to address this 

dispositive contention. It has failed to consider whether Ms. 

McKnight’s information was sufficient to cause Officer 

Azzarano reasonably to believe that her mother was 

threatened with an assault by an armed man. The Majority 

has also failed to respond to Myers’s contention that an 

insufficient showing of exigent circumstances was made 

that compelled an entry to save lives. 

"[P]robable cause is an indispensable element for a 

warrantless search of a dwelling even in the presence of 

exigent circumstances." Fisher v. Volz, 496 F.2d 333, 339 

(3d Cir. 1974) (internal quotation marks omitted). Ms. 

McKnight’s report that a man armed with a gun was 

involved in a fight with her mother was sufficient to 

warrant a person of reasonable caution to conclude that an 

offense that threatened the life of Ms. McKnight’s mother 

and endangered the safety of her five brothers and sisters 

was on-going. Her information provided Officer Azzarano 

with probable cause to enter and arrest Myers without a 
warrant. 

The Majority has concluded that "Officer Azzarano’s 

initial entry into the residence was justified." Maj. Op. at 5. 

The Majority has also determined, however, that"there was 

no probable cause to arrest Myers." Id. The Majority has 

not explained how Officer Azzarano’s warrantless entry can 

be "justified" if he did not have probable cause to arrest 

Myers. Without probable cause to arrest Myers, Officer 

Arrazano’s warrantless entry in the residence would not be 

justified under the Fourth Amendment pursuant to Kirk v. 

Louisiana, 536 U.S. ___, 122 S. Ct. 2458, 2459(2002) (per 

curiam), and Fisher v. Volz, 496 F.2d at 339.2 I know of no 

_________________________________________________________________ 

2. In footnote 19, the Majority relies on Sheik-Abdi v. McClellan, 37 F.3d 

1240 (7th Cir. 1994) in support of its finding that Azzarano did not have 

probable cause to arrest while conceding that his entry was "justified." 

The Majority states that "[t]he court in Sheik-Abdi distinguished between 

exigent circumstances that would justify a warrantless entry into a 

home, and probable cause needed for arrest." Maj. Op. at p. 22, n.19. 

The Majority’s reliance on Sheik-Abdi is misplaced. The Sheik-Abdi 

 43 

 

case that holds that the probable cause to make an arrest 

that is necessary to justify a warrantless entry disappears 

as soon as an officer steps into the residence. The Majority 

has cited none. If, as the Majority appears to have 

concluded, Officer Azzarano did not have probable cause to 

believe a crime was being committed prior to his entry into 

the apartment, it would be our duty to reverse the denial of 

the motion to suppress the seizure of the gun "for that 

reason, without more," as requested by Myers. 

The Fourth Amendment protects "[t]he right of the people 

to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures." U.S. Const. 

amend IV. Evidence seized as the result of an unreasonable 

search and seizure must be suppressed. Mapp v. Ohio, 367 

U.S. 643, 654-55 (1961). 

In this matter, the narrow question we must decide is 

whether the warrantless arrest of Myers in Ms. Bennett’s 

residence, and the search of his person conducted as an 

incident thereto, were unreasonable under the Fourth 

Amendment. Ms. Bennett’s residence was not searched. No 

property of hers was seized. She was not arrested or 

charged with any crime. 

In Payton v. New York, 445 U.S. 573 (1980), the Supreme 

Court held that a New York statute that authorized the 

warrantless and nonconsensual entry of a private residence 

to make an arrest based on probable cause to believe a 

felony had been committed was unconstitutional. Id. at 

576. The Court stated that it would not reach the question 

whether a warrantless entry to effect an arrest based on 

_________________________________________________________________ 
decision does not involve the validity of a warrantless entry based on 

exigent circumstances. The Seventh Circuit noted that "Sheik-Abdi does 

not challenge the lawfulness of the officers’ presence in his home." Id. at 

1245. In fact, Sheik-Abdi "concede[d] that while in the home, the officers 

presumably could have prevented any breach of the peace that occurred 

or as likely to occur." Id. The Seventh Circuit’s decision in Sheik-Abdi 

does not support the Majority’s finding that a warrantless entry can be 

"justified" without probable cause and exigent circumstances, as 

required by the Supreme Court in Kirk v. Louisiana and this circuit’s 

decision in Fisher v. Volz. 

 44 

 

probable cause is reasonable if accompanied by exigent 

circumstances because "none of the New York courts relied 

on such justification." Id. at 582-83. The Court commented: 

"Accordingly, we have no occasion to consider the sort of 

emergency or dangerous situation described in our cases as 

‘exigent circumstances’ that would justify a warrantless 

entry into a home for the purpose of either arrest or 

search." Id. at 583. In a later passage, the Court stated: 

 "In terms that apply equally to seizures of property and 

 to seizures of persons, the Fourth Amendment has 

 drawn a firm line at the entrance to the house. Absent 

 exigent circumstances, that threshold may not be 

 crossed without a warrant." Id. at 590. 

More recently, in Kirk v. Louisiana, the Court 

paraphrased its holding in Payton v. New York as follows: 

"As Payton makes plain, police officers need either a 

warrant or probable cause plus exigent circumstances in 

order to make a lawful entry into a home." Id. at 2459. 

(Emphasis added). Because the Majority appears to have 

concluded that Officer Azzarano did not have probable 

cause to cross the entrance to Ms. Bennett’s residence, its 

conclusion that the entry was justified violates the Supreme 

Court’s decisions in Payton v. New York and Kirk v. 

Louisiana. 

The Majority’s discussion of Steagald v. United States, 

451 U.S. 204 (1981) in footnote 9 of its opinion to refute my 

reliance on Kirk v. Louisiana and this court’s decision in 

Fisher v. Volz is puzzling. Steagald involves a completely 

distinguishable factual scenario and legal analysis. The 

Supreme Court summarized the question presented to it in 

Steagald v. United States in the following words: "[T]he 

narrow issue before us is whether an arrest warrant-- as 

opposed to a search warrant -- is adequate to protect the 

Fourth Amendment interests of persons not named in the 

warrant, when their homes are searched without their 

consent and in the absence of exigent circumstances." Id. 

at 212. The Court held that "warrantless searches of a 

home are impermissible absent consent or exigent 

circumstances." Id. at 216. (Emphasis added). 

In Steagald, police officers entered Steagald’s residence 

without a search warrant, consent, or exigent 
 45 

 

circumstances to serve an arrest warrant on Ricky Lyons. 

Lyons was not in Steagald’s residence. Nevertheless, the 

officers proceeded to conduct a search of Steagald’s 

residence. They discovered controlled substances. Steagald 

was arrested and indicted on federal charges. Steagald 

moved to suppress the evidence seized in his home on the 

ground that the officer did not have a search warrant when 

they entered his residence. Id. at 207-08. The Supreme 

Court noted in Steagald that "the Fourth Amendment claim 

here is not being raised by Lyons. Instead, the challenge to 

the search is asserted by a person not named in the 

warrant who was convicted on the basis of evidence 

uncovered during a search of the residence for Ricky 

Lyons." Id. at 212. (Emphasis added.) The Court reversed 

the Fifth Circuit’s judgment in Steagald holding that the 

fact that the officers had a warrant for the arrest did not 

justify the search of Steagald’s residence. Id. at 205. The 

Supreme Court concluded in Steagald that, absent consent 

or exigent circumstances, the police cannot conduct a 

warrantless search of a residence in order to seize the 

homeowner’s property. Id. at 216. Here, the police did not 

conduct a search of Ms. Bennett’s residence nor did they 

seize property belonging to her. Thus, Steagald has no 

relevance to the issues presented in this case. 

I agree with the Majority’s conclusion that Officer 

Azzarano’s entry was "justified" but on totally discrete 

grounds. Officer Azzarano’s undisputed testimony 

demonstrates that he received information from a credible 

informant that exigent circumstances compelled a 

warrantless entry because an armed man was fighting with 

the informant’s mother. This information also was sufficient 

to demonstrate that there was probable cause to arrest 

Myers for the commission of a serious crime. 

I also agree with the district court that failure to enter 

the residence and arrest Myers under these circumstances 

would have been a grave dereliction of Officer Azzarano’s 

duty to protect the safety of his fellow citizens. The record, 

viewed in the light most favorable to the Government, 

demonstrates that Officer Azzarano had probable cause to 

believe a serious crime was being committed and that 

exigent circumstances required an immediate entry based 

on Ms. McKnight’s report. 

 46 

 

III 

When Officer Azzarano entered the apartment, he heard 

raised voices and a lot of movement which he characterized 

as "what appeared to be some type of fight occurring on the 

second floor." Officer Azzarano called out "police." He did 

not receive a response. At the top of the stairs, Officer 

Azzarano encountered Lydia Bennett. He testified that she 

"seemed upset to me and seemed that she had just been 
involved in some type of altercation." He further testified 

that her "demeanor seemed to be consistent with someone 

who had been involved in some type of dispute. Her voice 

was shaky, she seemed upset." 

Officer Azzarano asked Ms. Bennett where the person 

was who had been upstairs with her. She replied there was 

no one upstairs with her. Based on Officer Azzarano’s police 

experience in responding to domestic-dispute calls, her 

response suggested to him that "she had, in fact, been 

involved in some type of dispute and there was someone 

nearby." Officer Azzarano was aware that Ms. Bennett’s 

statement that she had been alone was not true because he 

had heard at least two voices, and more than one set of 

footsteps. He inferred from her false response that she was 

afraid that Myers would retaliate if she complained of his 

conduct. 

As of the date of the suppression hearing, Officer 

Azzarano had been a member of the Philadelphia Police 

Department for three years. During that time, he had 

responded to at least one domestic disturbance call a day. 

He testified that such calls are very dangerous because the 

anger level of the persons engaged in the altercation is 

elevated and "lots of times you don’t exactly know what 

you’re walking into." In United States v. Arvizu, the 

Supreme Court instructed that the totality of the 

circumstances standard "allows officers to draw on their 

own experience and specialized training to make inferences 

from and deductions about the cumulative information 

available to them that might well elude an untrained 

person." 122 S. Ct. at 750-51 (internal quotation marks 

omitted). Thus, it was reasonable, based on his experience 

in investigating domestic violence, for Officer Azzarano to 

infer from her distraught condition, and her denial that 

 47 

 

anyone was upstairs with her, that she feared that 

revealing where Myers was hiding might endanger her 

safety. 

Officer Azzarano’s own observations corroborated Ms. 

McKnight’s information that her mother was involved in an 

altercation with an armed man. After receiving Ms. 

Bennett’s deceptive reply, Officer Azzarano saw Myers 

hiding behind a partially open bedroom door. The fact that 

the person behind the door was attempting to avoid 

detection caused Officer Azzarano to conclude that there 

was no reason for Myers "to hide from me if, in fact, it was 

just a simple argument between two parties." 3 Thus, based 

on Ms. McKnight’s request for police intervention to protect 

her mother from a man with a gun, and his independent 

observations, Officer Azzarano aimed his gun at Myers and 

ordered him to step out from behind the door. When Myers 

stepped out, he was carrying a black backpack. Officer 

Azzarano ordered Myers to lie down on the floor. Myers 

complied and while doing so, placed the backpack on the 

floor approximately three feet away from his body. Officer 
Azzarano handcuffed Myer’s hands behind his back and 

placed him under arrest for domestic assault. Officer 

Azzarano defined the Pennsylvania crime of domestic 

assault as "assault or some type of threat level towards 

someone who [Myers] had a previous relationship with." 

Officer Azzarano checked Myers’s waistband to see if he 

was carrying a concealed weapon. Myers was not carrying 

a weapon on his person. 

IV 

In a well-reasoned discussion of the pertinent facts and 

the applicable legal principles, the district court held that 

Officer Azzarano had probable cause to believe that a 

domestic disturbance was in progress involving a man 

armed with a gun and that these exigent circumstances 

justified a warrantless entry of the residence. I am 

persuaded that each of the district court’s factual findings 

_________________________________________________________________ 

3. Nor were Myers and Bennett "in the middle of a peaceful dinner, 

sharing jokes and laughing." See Maj. Op. at 21 n.17. 

 48 

 

is supported by evidence in the record and that it did not 

commit any legal errors. 

A. 

The district court determined that Officer Azzarano had 

probable cause to arrest Myers for the crime of simple 

assault pursuant to 18 Pa. C.S. S 2701(a)(3) (2000). Section 

2701(a)(3) provides that "a person is guilty of assault if he 

. . . attempts by physical menace to put another in fear of 

imminent serious bodily injury." At the time of Myers’s 

arrest, a police officer had the right to arrest a person for 

simple assault that did not take place in the presence of 

the police officer if "he has probable cause to believe that 

the defendant has violated section . . . 2701 (relating to 

simple assault) . . . against his spouse or other person with 

whom he resides or has formerly resided." 18 Pa. C.S. 

S 2711(a) (2000). An officer may not arrest a person under 

section 2711 "without first observing recent physical injury 

to the victim or other corroborative evidence ." 18 Pa. C.S. 

S 2711(a) (2000) (emphasis added). It is quite true that 

Officer Azzarano did not see Myers assault Ms. Bennett, nor 

did he observe recent physical injury. The record, however, 

is replete with corroborative evidence known to Officer 

Azzarano that would support an inference that Myers 

"attempt[ed] by physical menace to put[Ms. Bennett] in 

fear of imminent serious bodily injury." 18 Pa. C.S. 

S 2701(a)(3). 

As summarized above, before arresting Myers, Officer 

Azzarano was aware of the following circumstances: 

1. The Philadelphia Police Department had received a 

911 telephone call that a person with a gun was involved in 
a disturbance with a female companion. 

2. Officer Azzarano was told by Ms. McKnight that her 

mother and her boyfriend were involved in a fight and the 

boyfriend was armed with a gun. 

3. Officer Azzarano heard what sounded like a fight on 

the second floor. 

4. When Officer Azzarano observed Ms. Bennett, she 

appeared to be upset as if she had been involved in an 

altercation. 

 49 

 

5. When asked about the whereabouts of the other 

participant in the dispute, Ms. Bennett falsely represented 

she had been alone. 

6. Based on his prior experience in investigating 

domestic disputes, Officer Azzarano inferred from her false 

response that she was afraid to respond truthfully because 

she was afraid of violent retribution. 

7. Myers did not respond when Officer Azzarano 

announced his presence as a police officer, and instead hid 

behind a partially open bedroom door. 

8. Myers was holding a backpack just prior to being 

placed under arrest. 

The totality of these circumstances provided corroborative 

evidence that Myers had attempted to place Ms. Bennett in 

fear of bodily injury. 

In rejecting the district court’s findings, the Majority has 

made its own credibility findings, reweighed the evidence, 

and failed to consider the record in the light most favorable 

to the Government, in contravention of clearly established 

principles of appellate review. See United States v. Igbonwa, 

120 F.3d 437, 440-41 (3d Cir. 1997). The Majority also 

appears to have confused the quantum of evidence required 

to demonstrate probable cause for an arrest with the heavy 

burden placed on the Government to present sufficient 

evidence of each element of a crime that persuades the trier 

of fact of the guilt of the defendant beyond a reasonable 

doubt. Draper v. United States, 358 U.S. 307, 312 (1959). 

B. 

The district court’s findings concerning the 

circumstances that demonstrated probable cause for an 

arrest for simple assault under Pennsylvania law read as 

follows: 

 Now, with reference to the arrest and the information 

 that the officer had available to him at that time, 

 Pennsylvania Statute defines an assault as-- among 

 other things, as an attempt to cause or intentionally, 
 knowingly or recklessly causing bodily injury to 

 50 

 

 another and also includes attempts by physical menace 

 to put another in fear of serious bodily injury. 

 In this regard, I find that there was an ongoing simple 

 assault in the presence of Officer Azzarano and, 

 therefore, conclude that he had probable cause to 

 arrest for that ongoing assault at that time, since it 

 was occurring in his presence. This is based on the 

 totality of the circumstances that I have mentioned, 

 including the 9-1-1 report, the conversation with 

 McKnight, the statement that McKnight said they were 

 fighting and that the boyfriend has a gun, that he 

 heard the raised voices upstairs and the movement 

 which suggested an ongoing fight, his conversation 

 with Bennett and her denial of his presence and also 

 her demeanor, and that the house was in array (sic) 

 and that the defendant was hiding and she denied that 

 he was there. So, I conclude, therefore, that he did 

 have the probable cause to make an arrest for simple 

 assault at that time. 

(emphasis added). 

The Majority appears to have concluded that the term 

"fighting" as used by Ms. McKnight in describing the ongoing crime being committed against her mother refers 

solely to a "physical altercation or struggle." Maj. Op. at 12. 

The term "fight," however, includes "a verbal disagreement." 

Webster’s Third New International Dictionary 847 (1976). It 

is undisputed that Officer Azzarano heard raised voices, 

observed Ms. Bennett’s distraught condition, and saw that 

the upstairs area was in disarray, as if there had been a 

struggle. He had also been informed by a person whose 

information is presumed to be trustworthy that Myers was 

armed with a gun. Officer Azzarano’s independent visual 

and auditory perception of these circumstances involving 

an armed man would lead a reasonable person to conclude 

that the information he had received from Ms. McKnight 

was accurate and that there was probable cause to believe 

Myers was attempting to place Ms. Bennett in fear of 

imminent serious bodily injury. 

The Majority has made a factual finding that the upstairs 

area where Officer Azzarano encountered Ms. Bennett was 

 51 

 

not in disarray. The district court’s contrary finding that 

the area was in disarray was based on Officer Azzarano’s 

undisputed testimony. The Majority states: 

 "The record is devoid of any suggestion that the level of 

 disarray was excessive to the point of being probative 

 of a physical altercation. The most that we can 
 conclude from the officer’s description of the state of 

 the apartment is that it was messy." (Emphasis added.) 

Maj. Op. at 13-14. 

The Majority’s finding that the apartment was "messy," 

and not in disarray, violates the rule that appellate courts 

cannot reweigh the evidence, or engage in fact-finding. 

Igbonwa, 120 F.3d at 440-41. Officer Azzarano’s description 

of the condition of the apartment was undisputed. The 

Majority’s finding also ignores Officer Azzarano’s daily 

experience in investigating domestic disputes and his prior 

observations of the condition of residences where violations 

of section 2701(a)(3) had occurred. 

The quoted language also ignores the fact that evidence 

of a physical altercation is not required to prove a violation 

of section 2701(a)(3). That crime is committed if a person 

attempts to put another in fear of imminent serious bodily 

injury by physical menace. 18 Pa. C.S. S 2701(a)(3). Proof of 

a physical injury is not required. 

The Majority states that "there is no evidence that Myers 

pointed a gun at Bennett in Azzarano’s presence or 

otherwise, and nothing supports the inference that 

Azzarano thought he had." Maj. Op. at 9. In fact, Officer 

Azzarano testified that he arrested Myers for "domestic 

assault" because of his "terrorist threats" with a handgun. 

The refusal of the Majority to accept Officer Azzarano’s 

undisputed testimony concerning the inferences he drew, 

based on the totality of the circumstances, is contrary to 

our duty as appellate judges to construe the record in the 

light most favorable to the Government in reviewing the 

denial of a motion to suppress. Cook, 277 F.3d at 84. 

C. 

In reweighing the evidence in the record, the Majority has 

also minimized what Azzarano saw, finding that "the only 

 52 

 

thing Myers did in [Azzarano’s] presence was hide behind a 

door." Maj. Op. at 9. This finding is also inconsistent with 

Officer Azzarano’s undisputed testimony. As Officer 

Azzarano ascended the stairway, Myers attempted to 

conceal himself behind a partially open doorway. The threat 

of imminent harm to Ms. Bennett from an armed man did 

not cease. It continued -- but with Officer Azzarano as an 

additional victim of Myers’s menacing behavior. Officer 

Azzarano testified: 

 When I saw the defendant was hiding behind the door, 

 my fear level increased greatly. I figured something 

 had, in fact -- something happened or something was 

 happening and there would be no reason for him to 

 hide from me if, in fact, it was a simple argument 

 between two parties. 
(emphasis added). 

Appellate judges spend their days cloistered in secure 

buildings guarded by United States Marshals, protected 

from strangers and the public by electronically controlled 

doors and elevators. We have no expertise in the 

investigation of volatile domestic altercations. We have no 

first-hand experience regarding the threat of violence 

presented by persons involved in a domestic dispute when 

a police officer attempts to act as a peacemaker in calming 

their fury. Instead of engaging in a reductio ad absurdum 

dissection of an officer’s recitation of the totality of the 

circumstances confronted in making an arrest under lifethreatening conditions, in clear violation of the Supreme 

Court’s instruction in United States v. Arvizu , we should 

adhere to this court’s admonition that "when the district 

court’s decision is based on testimony that is coherent and 

plausible, not internally inconsistent and not contradicted 

by external evidence, there can almost never be a finding of 

clear error." Igbonwa, 120 F.3d at 440-41 (internal 

quotation marks and citations omitted). The district court 

did not clearly err in concluding that Officer Azzarano had 

probable cause to believe that Myers committed a violation 

of section 2701(a)(3) in the officer’s presence. 

 53 

 

V 

The district court denied the motion to suppress because 

it was persuaded by the totality of the circumstances that 

Officer Azzarano had probable cause to arrest Myers and 

that the search of the backpack was incident to a lawful 

arrest. The Majority has concluded that Officer Azzarano 

did not have probable cause to arrest Myers for any crime.4 

This observation, if correct, would invalidate the 

warrantless entry of the residence and eliminate the need to 

determine whether the search of the backpack was incident 

to a lawful arrest. In a discussion which lacks any 

precedential value because it is unnecessary to its decision, 

and casts doubt on its conclusion that Azzarano did not 

have probable cause to arrest Myers, the Majority has 

opined that the search of the backpack was not incident to 

Myers’s arrest. 

The Majority states that, because Myers was handcuffed 

behind his back and covered by two armed police officers, 

the backpack was not accessible to Myers because"he was 

neither an acrobat [nor] a Houdini" Maj. Op. at 25. (quoting 

United States v. Abdul-Saboor, 85 F.3d 664, 669 (D.C. Cir. 

1996). The quoted language from Abdul-Saboor is dictum. 

In Abdul-Saboor, the D.C. Circuit affirmed the denial of a 

motion to suppress. Id. at 666. In that matter, the record 

showed that the search was conducted after the defendant 

was handcuffed and sitting on a chair in a hallway about 

four feet outside the bedroom door in the custody of at least 

one armed police officer. Id. at 669-70. The D.C. Circuit 

held in Abdul-Saboor that the subsequent search of the 

bedroom was a lawful search incident to an arrest. Id. at 
670. Thus, Abdul-Saboor supports the conclusion of the 

district court here that the search of the backpack was 

accessible to Myers and incident to a lawful arrest, 

notwithstanding the fact he was handcuffed and in the 

custody of an officer. 

_________________________________________________________________ 

4. As discussed above, the Majority’s holding is starkly inconsistent with 

its determination that the warrantless entry of the residence did not 

violate the Fourth Amendment because it was "justified." A warrantless 

entry of a dwelling must be supported by probable cause "even in the 

presence of exigent circumstances." Fisher v. Volz, 496 F.2d at 339 

(internal quotation marks omitted). 

 54 

 

Other circuits have also upheld searches conducted as 

an incident to an arrest where the defendant was 

handcuffed and in the presence of police officers. In United 

States v. Queen, 847 F.2d 346 (7th Cir. 1988), the Seventh 

Circuit affirmed the denial of a motion to suppress a loaded 

revolver seized from the floor of a closet as incident to an 

arrest although the defendant’s hands were handcuffed 

behind his back and he was guarded by two armed Federal 

Bureau of Investigation agents. Id. at 353. 

In United States v. Silva, 745 F.2d 840 (4th Cir. 1984), 

the arrestees were handcuffed behind their backs, and as 

they sat on a motel room bed, an officer searched a locked, 

zippered bag which contained two firearms and 

ammunition. Id. at 847. The Fourth Circuit upheld the 

search as incident to a lawful arrest. Id. 

In United States v. Palumbo, 735 F.2d 1095 (8th Cir. 

1984), the Eighth Circuit rejected the appellant’s argument 

that a search was not incident to his arrest because"the 

cocaine, hidden behind a dresser drawer, was inaccessible 

to him because he was handcuffed and in the presence of 

several officers." Id. at 1097. 

The Majority has failed to cite any decision that supports 

its theory that the fact that a person is handcuffed and 

covered by more than one police officer makes a weapon 

three feet away inaccessible. Its dictum to that effect is 

contrary to the express holdings of four of our sister 

circuits. 

The undisputed evidence, when viewed in the light most 

favorable to the Government, shows that Officer Azzarano 

decided to search the backpack when he noted that Myers 

kept looking at the bag and "he was getting more and more 

nervous as he answered my questions. His voice was more 

shaking and halting." Officer Azzarano further testified that 

based on his experience as an officer "[t]he defendant’s 

demeanor led me to believe that there was something in the 

bag that he didn’t want me to see." As discussed in the 

authorities cited above, whether or not Myers could get to 

the bag to open it is not relevant in determining whether 

the search was incident to the arrest. In discussing the 
question of accessibility at the time of a search, the D.C. 

 55 

 

Circuit reasoned as follows in United States v. Lyons, 706 

F.2d 321 (D.C. Cir. 1983): 

 Custodial arrests are often dangerous; the police must 

 act decisively and cannot be expected to make 

 punctilious judgments regarding what is within and 

 what is just beyond the arrestee’s grasp. Thus, 

 searches have sometimes been upheld even when 

 hindsight might suggest that the likelihood of the 

 defendant reaching the area in question was slight. 

Id. at 330 (citing United States v. Mason, 523 F.2d 1122, 

1125-26 (D.C. Cir. 1975)). 

CONCLUSION 

I would affirm the district court’s denial of the motion to 

suppress. Based on Ms. McKnight’s report, when Officer 

Azzarano entered Ms. Bennett’s residence, he had probable 

cause to believe that she was threatened with imminent 

bodily harm by an armed man. Officer Azzarano’s entry into 

the apartment without a warrant was also justified by 

exigent circumstances -- to protect Ms. Bennett and her 

children from physical injury. The facts he observed after 

entering the apartment confirmed the eye witness report of 

Ms. McKnight that Myers was committing a serious crime. 

Officer Azzarano’s search of Myers’s backpack was 

incident to a lawful arrest for a violation of 

section 2701(a)(3), based on Ms. McKnight’s reliable 

information that a serious crime was being committed 

within the residence, and the corroborating facts the officer 

perceived within Ms. Bennett’s residence. Myers’s conduct 

in Officer Azzarano’s presence constituted an attempt by 

physical menace to put Ms. Bennett in fear of imminent 

serious bodily injury. The fact that Myers was in the 

custody of two officers and handcuffed did not invalidate 

the search as incident to a lawful arrest. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 56