Search incident to arrest; unlawful possession of firearm, § 941.29

State v. Mark A. Sanders, 2013 WI App 4; case activity

Search incident to arrest — area within arrestee’s “immediate control”

Search of bed in room from which defendant emerged just before being arrested upheld under Chimel v. California, 395 U.S. 752 (1969), which permits an arresting officer to search the person arrested and the area within the arrestee’s “immediate control” in order to prevent the destruction of evidence of the crime and protect officers’ safety.

¶4        …. Acting on an informant’s tip that Sanders was armed, the police had approached Sanders, who was standing outside a residence with another man.  When the police identified themselves and ordered the men to put their hands in the air, Sanders ran into the residence.  As he did so, the police saw him adjust something at his waistband which, based on the officers’ training and experience, suggested that Sanders was carrying a weapon.  After pursuing Sanders into the house, the police encountered him near the door of a bedroom and noticed that the bedcoverings were rumpled in a manner that suggested to the officers, again based on their experience, that an object may have been recently hidden there.

¶5        Under these circumstances, the rumpled bedcovers on the nearby bed suggested that the gun reported in the tip was likely hidden there.  The police did not conduct a general search of the house or the room where they located Sanders; instead, they searched only the bed because they reasonably inferred from the rumpled bedding that Sanders had just stashed a weapon.  Given the circumscribed nature of the scope of the police search and the timeframe—just seconds after entering the house and seeing Sanders and the disturbed bedding—this search was reasonable as incident to Sanders’ arrest.

Chimel construed “area within an arrestee’s immediate control” to mean “the area from within which he might gain possession of a weapon or destructible evidence.” Citing this language and some additional facts, a dissenting judge concludes the search was improper:

 ¶11      Sanders was arrested in the hall.  He was taken by officers to the kitchen, seated at a table, and handcuffed.  One or more officers remained with him.  The gun was discovered under a mattress in a bedroom six to eight feet from the kitchen.
¶12      A bed, in a bedroom six to eight feet from the kitchen, is not “within the immediate control” of a handcuffed and guarded arrestee in the kitchen.  In these circumstances, the bedroom is clearly not an “area into which [Sanders] might reach in order to grab a weapon.”….  The warrantless search of the bedroom is, in my view, exactly the type of search Chimel explains is prohibited by the Fourth Amendment….

Neither the majority nor the dissent discusses Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009), which Sanders cited in his brief and which arguably supports the dissent’s conclusion. Gant rejected the rule many courts adopted after New York v. Belton, 453 U.S. 454 (1981), allowing the passenger area of a car to be searched incident to the arrest of the driver or a passenger even when the arrestee was handcuffed and placed in a squad car. In doing so Gant emphasized that searches incident to arrest must hew to Chimel’s limitation of the area within an arrestee’s immediate control to the area from within which he might gain possession of a weapon or destructible evidence:

 That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. … If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.

Gant, 129 S.Ct. at 1716. Gant’s reaffirmation of Chimel should be useful to support an argument that a search was outside the area of an arrestee’s immediate control.

Unlawful possession of firearm, § 941.29 – Sufficiency of evidence

Evidence held sufficient to sustain convictions for possession of a firearm, ¶¶7-9. The trial testimony established that the police went to a specific location based on a tip of an armed man and saw Sanders, who ran into the residence when police identified themselves. As he did so, he adjusted something at his waistband, suggesting he was carrying a weapon. After pursuing Sanders into the house, the police encountered him near the door of a bedroom and noticed that the bed covering was rumpled. A search under the mattress of the bed revealed a gun. The evidence also established Sanders was a felon and subject to a restraining order. Standard of review for sufficiency of evidence recited, ¶6, citing State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).