The Permissible Scope of a Premises Search Incident to Arrest under Chimel v. California: Divergent Definitions of Immediate Control Plague the Lower Courts

standard, the Court noted, 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 the area would approach the evaporation point.8 The majority's rejection of a reasonableness standard is underscored by the dissenting opinion of Justice White, joined by Justice Black."' After noting that the fourth amendment does not prohibit warrantless, but only unreasonable searches, Justice White chastised the majority for not adhering to that standard. He posited that while the justifications which make reasonable the search of the arrestee and the area within his or her immediate control "do not apply to the search of areas to which the accused does not have ready physical access [, t]his is not, however, enough to prove such searches unconstitutional. ' 2 Justice White then argued that, if there is probable cause to search, a warrantless search of the premises upon which an arrest occurs is reasonable because it is unreasonable to require the police to leave the scene in order to obtain a search warrant when -they are already legaliy there to make a valid arrest, and when there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search. 83 79. See, e.g., text accompanying notes 37, 77 supra. 80. 395 U.S. at 764-65. 81. Id. at 770. 82. Id. at 773 (emphasis added). 83. Id. at 774. The fact that there is a "strong possibility" that others may destroy evidence at the scene of the arrest and that, in effect, the arrest inherently creates exigent circumstances is not a valid reason to abrogate the rule announced by the majority in Chimel. First, it is arguable whether such circumstances exist in all cases of searches of premises incident to arrest. And it is questionable whether the protection accorded by the fourth amendment should be dissipated upon the basis of "strong probabilities." Second, if the circumstances set forth by the dissent actually exist in a given situation, it is possible to resolve the conflict between the fourth amendment [Vol. 9 1976] PREMISES SEARCHES INCIDENT TO ARRESTS 367 Thus it was the dissent and not the majority which argued that the reasonableness of the police conduct should determine the scope of a search incident to arrest. The incantation of the legal axiom of reasonableness cannot support the argument that the physical proximity test is the correct interpretation of the immediate control rule. B. The Factual Analysis Test In addition to rejecting a reasonableness standard, a substantial portion of the majority opinion is directed to examining the justifications for the search incident to arrest exception. 4 The Court suggested that a similarity exists between the "stop and frisk" and the search incident to arrest situations and concluded: When 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. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.85 The Court's opinion is not free from ambiguity, but this passage indicates that the Court was abandoning fictionalized concepts of control,86 requiring instead that the search extend only to those areas over which the arrestee may have actual control. Otherwise, how is the search to be limited to and justified by the initial circumstances authorizing it? If this is the rationale behind Chimel, then courts would have to engage in a detailed factual examination of the setting where the arrest took place protection and the desire to aid police enforcement without doing away with the immediate control rule. If there are confederates of an arrestee who realistically pose a threat to the preservation of evidence, law enforcement officers may argue that the facts give rise to a situation wherein the "exigent circumstances" exception to the search warrant should apply. See note 2 supra. Another approach would be to recognize such situations as an exception to the general limitations of Chimel, and a legitimate justification for the extension of the search to areas not directly under the immediate control of the defendant. Several courts have recognized such an exception to Chimel on several different theories. See notes 121-29, 150-75 infra and accompanying text. 84. See 395 U.S. at 762-64. 85. Id. at 762-63. 86. See note 20 supra and accompanying text. LOYOLA OF LOS ANGELES LAW REVIEW -examining the number of officers present, the position of the officers in relation to the arrestee, the physical restraints placed on the arrestee, and the capabilities of the arrestee. The Sixth Circuit Court of Appeals adopted such a factual analysis test in United States v. Shye. 7 In that case six or seven officers arrested four defendants in an apartment for armed robbery. The arrestees were lined up against a wall in the apartment "spread-eagle" by one officer, and other officers then seized a sack of money discovered behind a water heater by an adjoining wall about four feet from the nearest suspect.88 Between the suspect and the water heater was a hallway, and the water heater was set in a closet-like recess. 89 Emphasizing that the search incident to arrest exception can be invoked only when there is danger to the officers or the possibility of destruction of evidence and agreeing with the district court that "'the officers had the situation completely under control,' " the court rejected the prosecution's argument that the item was lawfully seized incident to arrest. The court noted that an officer had been stationed between the water heater and the nearest suspect and therefore the item could not be under the suspect's immediate control as defined in Chimel.' Subsequently, this same circuit court conducted an examination of a similar situation but, because of factual variations, reached a contrary conclusion. In United States v. Becker9 the defendant was arrested but had not been handcuffed or bound, and an officer opened a desk drawer three to five feet from the defendant. 93 The officer stated that his purpose in doing so was to search for weapons and to secure the desk from the defendant's control.9 4 Relying on the officer's testimony and the fact that the defendant was resisting arrest and attempting to move in directions other than those prescribed by the officer, the court held the search to be within the permissible scope of a search incident to arrest.9 5 The court also distinguished Shye since there was no officer 87. 473 F.2d 1061 (6th Cir. 1973). 88. Id. at 1063. 89. Id. 90. Id. at 1066. 91. Id. 92. 485 F.2d 51 (6th Cir. 1973), cert. denied, 416 U.S. 992 (1974). 93. Id. at 53. 94. Id. 95. Id. at 55. It should be noted that a test which calls for an analysis of the facts surrounding the search can lead to diverse conclusions based on the same facts. Compare United States v. Becker, 485 F.2d 51, 51-55 (6th Cir. 1973) (majority opinion) with id. at 58-59 (McCree, J., dissenting). Judge McCree relied heavily on portions of the officer's testimony that indicated the defendant was under control at the time of tho [Vol. 9 1976] PREMISES SEARCHES INCIDENT TO ARRESTS 369 between the arrestee and the desk drawer until the officer moved to look for weapons. 96 The Sixth Circuit thus made it clear that the application of Chimel in its estimation requires an examination of at least the position of any officers in relation to the defendant and the area searched, and the existence of any effective restraints placed upon the