ID: Jacket a companion was sitting on while def was handcuffed was subject to search incident

Defendant was handcuffed and a woman with him wasn’t. She was sitting on his jacket. The jacket was still subject to search incident because she could have done something to aid him. State v. Pedersen, 2014 Ida. App. LEXIS 106 (October 8, 2014):

Although it might be argued that Gant has no application outside the context of automobile searches, that is not readily apparent from the Gant opinion itself. The Gant Court emphasized “the justifications underlying the Chimel exception,” Gant, 556 U.S. at 343, and Chimel did not involve a vehicle search. Gant does not suggest that the Court intended to placegreater restrictions upon searches of automobiles incident to arrest than would be applicable to other Chimel searches. Instead, it insisted that focus be directed to the factors identified in Chimel as justifying the search incident to arrest exception–the arrestee’s potential access to weapons or ability to destroy evidence–when the search is conducted. We thus conclude that Gant’s posture cautioning against a broadening of the search incident to arrest exception beyond the limitations expressed in Chimel is not restricted to vehicle searches, but is a reminder that all searches incident to arrest must be tethered to the Chimel justifications.

This conclusion does not mean, however, that the search of Pedersen’s jacket was unjustified as a search incident to arrest. In our view, neither the factors identified in Bowman to be considered in determining the area of an arrestee’s immediate control, nor the ultimate result in Bowman, is inconsistent with Gant or Chimel. The Third Circuit Court of Appeals decision in United States v. Shakir, 616 F.3d 315 (3d Cir. 2010) lends support to this conclusion. In Shakir,the defendant was arrested in a hotel lobby. He had been handcuffed and was guarded by two officers before police searched a bag that he had just dropped to the floor. Although the Shakir court concluded that Gant’s admonitions against loosening of the search incident to arrest standard applied beyond automobile searches, it nonetheless held that the search of Shakir’s bag was a legitimate search incident to his arrest. The court reasoned that the bag was within the defendant’s area of control because it was close at hand and because he was arrested in a public area with several bystanders and a suspected confederate nearby. The court interpreted Gant “to stand for the proposition that police cannot search a location or item when there is no reasonable possibility that the suspect might access it,” id. at 320, but found the possibility of access not eliminated in the case before it. The court noted that “handcuffs are not fail-safe,” id., and concluded that “reading Gant to prohibit a search incident to arrest whenever an arrestee is handcuffed would expose police to an unreasonable risk of harm.” Id. at 321. Although recognizing that the standard “requires something more than the mere theoretical possibility that a suspect might access a weapon or evidence,” the court said that “it remains a lenient standard.”