UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-8179

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SKIRVIN GEORGE JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(Opinion February 28, 5th Cir., 1994 F3d )

(March 23, 1994)

Petition for Rehearing

Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GA RZA, Circuit

Judges.

POLITZ, Chief Judge:

The petition for rehearing is granted to the extent set forth

herein; otherwise same is denied, and the opinion of this court is

reaffirmed.

The government appropriately requests a clarification and

correction of our opinion with regard to the reference to remand1 United States v. Turner , 926 F.2d 883 (9th Cir.), c ert

.

denied , 112 S.Ct. 103 (1991).

2 See

, e.g.

, United States v. Orozco

, 982 F.2d 152 (5th Cir.),

cert

. denied

, 113 S.Ct. 2430 (1993) (the ultimate determination of

probable cause is a question of law).

2 for a new trial. We do not order a new trial; the sole reference

to such in the opening paragraph of our opinion was inadvertent and

is recalled. On remand the district court is first to review the

record and identify any evidence obtained after the illegal seizure

of Phoenix-related documents from Johnson's briefcase which may be

deemed fruit of the poisonous tree. Any evidence so identified is

to be disregarded when the distri ct court then evaluates the

remainder to determine whether the record contains s u fficient

evidence to support Johnson's convictions.

Our colleague in his partial dissent and the government in its

petition for rehearing misread our conclusion and holding about the

conte nts of the briefcase. Both suggest that we have viewed the

findings of fact by the trial judge in an inappropriate manner. We

have not done so. We have accepted the findings of fact. We

review the district court's conclusions of law de novo , however.

For searches which are incident to arrest we review de novo

the application of the prope r legal standard to the established

facts. 1 We view the articulation and definition of the "area

within immediate control" as a question of law, obviously dependent

on material factual findings, much like the legal determination of

probable cause. 2 Applying the proper legal standard to the3 Much has been made of the district court's purported factual

findings on the pretrial motion to suppress. A close look at the

record is compelled. The district court then stated:

After reviewing the record evidence, the Court

specifically finds from the credible evidence that

Phoenix police officer Sterrett executed an Arizona

arrest warrant on the defendant at defendant's workplace

with the City of Austin. According to officer Sterrett,

defendant's open briefcase was on one of the chairs

approximately six to e ight feet from defendant's de s k

where defendant was sitting. The defendant indicated

that the briefcase was five to six feet away. The

officer could see a checkbook inside the briefcase when

he entered the office.

During the arrest, defendant Johnson got out of his

chair two or three times, and the officer repeatedly told

Johnson to sit down. The officer did indicate that it

was a passive situation. He also testified that he

cursorily searched th e briefcase to make sure that it

contained no gun. He also searched areas i n defendant's

immediate vicinity at defendant's workstation in his ten

foot by 12 foot office. [Emphasis added.]

The district court appears to have distinguished areas within

Johnson's immediate vicin ity from the area around his briefcase.

In our op inion, we concluded that the evidence seized from

Johnson's workstation/desk was admissible. That seized from his

briefcase was not. We reiterate those conclusions.

-3- acc epted findings of fact, 3 we conclude that under the facts as

developed in this particular case the trial court erred in its

l egal conclusion that the briefcase was within Johnson's area of

immediate control at the time it was searched. It was not.

Except as herein in part g ranted, the application for

rehearing is denied, the opinion is reaffirmed, the convictions are

VACATED, and the matter is REMANDED for further proce edings

consistent herewith.4 See Chimel v. California, 89 S. Ct. 2034 (1969).

5 That the issue of immediate c ontrol may be considered an ultimate

question of fact, dependent upon certain subsidiary facts, does not mean that

Rule 52(a) no longer applies. See Pullman-Standard v. Swint, 102 S. Ct. 1781,

1789 (1982) (holding that ultimate findings of fact are reviewed for clear

error). To the extent that the issue of immediate control may be considered a

mixed question of law and fact )) i.e., because it involves an application of the

Chimel rule to the established facts )) the general rule in this Circuit is that

such questions are freely reviewable. See, e.g., Barrientos v. United States,

668 F.2d 8 38, 841 (5th Cir. 1982). H owever, we have recognized that to the

extent such questions are predominantly factual, they are reviewable for clear

error. S ee, e.g., Connally v. Transcon Lines, 583 F.2d 199, 202 (5th Cir. 1978);

Backar v. Western States Prod. Co., 547 F.2d 876, 884 (5th Cir. 1977). EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:

For the reasons set forth previously, I continue to dissent in

part.

F urthermore, I do not share the majority's view that the

central issue in this case )) i.e., whether the briefcase was within

Johnson's "area of immediate control" 4 )) is a question of law to be

reviewed de novo. The majority's analogy to the standard this

Court has adopted for reviewing p robable cause determinations is

not persuasive authority. Unlike issues of probable cause, the

issue of whether an object is within a defendant's area of

immediate con trol does not require us to consider abstract legal

doctrines, to weigh underlying policy considerations, or to balance

competing legal inter ests. Consequently, the issue of immediate

control is essentially a question of fact, which should be reviewed

under a clearly erroneous standard. 5 See Fed. R. Civ. P. 52(a).

This Court has not definitively stated what standard of review

applies when reviewing a Chimel determination of immediate control.-5-

The Seventh a nd Eighth Circuits review such determinations for

clear error. S ee United States v. Morales, 923 F.2d 621, 627 (8th

Cir. 1991) ("We conclude that the finding of the magistrate adopted

by the district court that the bags w ere within Morales' area of

immediate control is not clearly erroneous."); U nited States v.

Bennett, 908 F.2d 189, 193 (7th Cir. 1990) ("We find that although

the defendants were handcuffed and placed against the wall of the

room at th e time of the search, the facts of this case are such

that the district court's finding that the search was limited to

the area within their immediate control is not clearly

erroneous."). The Ninth Circuit reviews Chimel determinations of

immediate control de novo. S ee United States v. McConney, 728 F.2d

1195, 1206-07 (9th Cir. 1984) (en banc).

For the foregoing reasons, I would review for clear error the

district court's determination that Johnson's briefcase was within

his area of immediate control.