CT: Was SI of closet near def handcuffed face down within his reach? Close question, so harmless error applied

Was a defendant handcuffed face down potentially still enough of a risk of danger that a search incident of a closet four feet from him might have been reasonable? Pills were found instead of a weapon. This is a close issue, and the court decides instead that, if it was error, it was harmless in light of all the other evidence in the case. State v. Jordan, 2014 Conn. LEXIS 306 (October 14, 2014):

In our view, there is no doubt that, given the defendant’s criminal history; see footnote 11 of this opinion; the police officers had a reasonable basis to believe that the defendant may have had a weapon in the closet. Moreover, given the defendant’s lack of compliance with the officers at the scene, it was reasonable for the officers to assume that, even after being restrained, the defendant might act irrationally by attempting to access the closet to obtain a weapon if one had in fact been hidden there.12 See United States v. McConney, 728 F.2d 1195, 1207 (9th Cir. 1984) (“Chimel does not require the police to presume that an arrestee is wholly rational. Persons under stress may attempt actions which are unlikely to succeed.”), overruled on other grounds by Estate of Merchant v. Commissioner Internal Revenue Service, 947 F.2d 1390, 1392-93 (9th Cir. 1991).

Nonetheless, the facts present a close case as to whether there was a realistic possibility that the defendant could have gained access to the closet interior such that it could be said to be within the defendant’s immediate control under Chimel. Because the defendant was surrounded by four police officers, some of whom were armed, and was lying facedown with his hands cuffed behind his back, it would have been extremely difficult for the defendant to gain access to the small closet in which two more officers were located, let alone access a weapon therein. The remoteness of this possibility seems to be supported by the fact that the officers continued to search the closet for up to ten minutes while leaving the defendant in close proximity rather than removing him from the scene.

We also acknowledge that the law is unsettled on what it means for an area to be within an arrestee’s immediate control. In particular, courts disagree over whether there must be some realistic possibility that the defendant would be able to reach the area searched at the time of the search or whether such a possibility only need to have existed at the time of arrest. Moreover, federal courts are split as to whether Gant established a more limited search incident to arrest standard that is applicable in all contexts or is limited to automobile searches. See United States v. Curtis, 635 F.3d 704, 713 n.22 (5th Cir. 2011) (acknowledging split of authority); United States v. Brewer, 624 F.3d 900, 905-906 (8th Cir. 2010) (declining to apply Gant to search of arrestee’s person), cert. denied, ___ U.S. ___, 131 S. Ct. 1805, 179 L. Ed. 2d 670 (2011); United States v. Shakir, 616 F.3d 315, 318 (3d Cir.) (concluding Gant applies beyond automobile searches), cert. denied, ___ U.S. ___, 131 S. Ct. 841, 178 L. Ed. 2d 571 (2010).