The First Circuit deals with the “moveable area of immediate control” aspect of search incident and finds that officers could search a closet compartment when they had a defendant in custody who was allowed to get dressed. He went into the closet area, and the officers first did a cursory search of the area and found a gun frame which he was indicted for. United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007) (1st Circuit’s website does not provide usable links; you have to enter the case name; and note the potential frivolousness of the court’s language):
Before moving to the heart of Nascimento’s argument, we pause to brush aside a potential complication. The police originally encountered Nascimento in the front of the apartment. At that time, the cabinet was unquestionably beyond his immediate control. Under the circumstances, however, it was not inappropriate for the police to escort Nascimento to his bedroom in order that he might get dressed.
When police encounter and arrest a partially clothed individual in his home, the need to dress him may constitute an exigency justifying the officers in entering another room in order to obtain needed clothing. See United States v. Gwinn, 219 F.3d 326, 333 (4th Cir. 2000). Generalizations are hazardous because one can imagine infinitely variable fact patterns. It suffices to say that both human dignity and the New England climate counseled here in favor of a more complete wardrobe. In addition, the district court supportably found that the police neither manipulated the situation nor used Nascimento’s dishabille as a pretext to carry out an otherwise impermissible search. Accordingly, the conduct of the police in deciding to dress the suspect falls within the reasonable latitude afforded arresting officers in coping with exigent circumstances. See United States v. Cook, 277 F.3d 82, 86 (1st Cir. 2002) (explaining that “common sense and practical considerations must guide judgments about the reasonableness of searches and seizures”).
This brings us to the search itself. The evidence at the suppression hearing indicated that, as a matter of policy, Boston police officers in similar situations allowed arrestees to select the clothes that they wished to wear. The arrestee, however, typically would not be given direct access to the closet. Thus, the question reduces to whether a cabinet eight to ten feet away from an unrestrained suspect can be said to be within the suspect’s immediate control. Emphasizing that there were two officers between him and the closet, Nascimento argues that we should answer this question in the negative. To buttress his argument, he calls our attention to United States v. Johnson, 16 F.3d 69 (5th Cir. 1994), modified on rehearing, 18 F.3d 293, in which the Fifth Circuit found that a briefcase some eight feet away from an unrestrained suspect was not under his immediate control. See id. at 70-72. In so holding, the court stressed that four officers were present in the room. Id. at 71.
In our estimation, Johnson is of little help to Nascimento. There, unlike in the case at hand, the officers “never felt threatened” and never “believed that Johnson was about to destroy evidence.” Id. at 72. Despite that mindset, they engaged in “precisely the type of generalized, warrantless search prohibited by Chimel.” Id.
This case is a horse of a different hue. The officers were arresting a person whom they knew to have been charged with a crime of violence. Law enforcement officers who embark on perilous duties are not expected to ignore the need for commonsense precautions. And here, in sharp contradistinction to Johnson, the officers targeted their search to the closet, which was about to become the locus of activity. The district court found as a fact that the closet was readily accessible to Nascimento. That finding was not clearly erroneous.
That is game, set, and match. Given the finding of accessibility, the closet (and, thus, the cabinet) was within Nascimento’s immediate control. Accordingly, we uphold the district court’s ultimate conclusion that the scope of the search was within permissible limits. See Abdul-Saboor, 85 F.3d at 671 (holding an area that is “conceivably accessible” to arrestee to be within his immediate control). On that basis, the district court appropriately denied the motion to suppress.
(Comment: This is a RICO case that also admittedly created a circuit split on the commerce question.)
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
