D.Haw.: Search incident does not have to be exactly contemporaneous with arrest

The search incident of a bag in the defendant’s hand after he arrived in Hawai’i from Oakland was with probable cause, and it did not have to be immediately contemporaneous with the arrest to be valid. Here, exigency justified dealing with the defendant before the search. United States v. Seals, 2014 U.S. Dist. LEXIS 162417 (D. Haw. November 20, 2014):

The search of Seals’s bag was not remote in time from his arrest. While “[t]here is no fixed outer limit for the number of minutes that may pass between an arrest and a valid, warrantless search that is a contemporaneous incident of the arrest,” United States v. McLaughlin, 170 F.3d 889, 892 (9th Cir. 1999), the Ninth Circuit has upheld searches incident to arrest occurring up to fifteen minutes after the arrest, and invalidated searches occurring thirty to forty-five minutes after the arrest. Compare United States v. Weaver, 433 F.3d 1104, 1106-07 (9th Cir. 2006) (upholding a search that took place “ten to fifteen minutes” after the arrest as “a contemporaneous incident” of the arrest), with United States v. Vasey, 834 F.2d 782, 787-88 (9th Cir. 1987) (invalidating a search conducted “anywhere from thirty to forty-five minutes” after the arrest). The search of Seals’s bag appears to have occurred within ten to fifteen minutes of the arrest, the same time frame the Ninth Circuit permitted in Weaver. See ECF No. 287, PageID # 950-51. Nothing in the record suggests that the time between Seals’s arrest and the search of his bag invalidates the search, and Seals’s counsel conceded at the hearing on this motion that, without more, the time gap was not problematic.

Moreover, the short delay appears to have been the result of exigent circumstances. Agents were concerned that Penitani and possibly others would arrive on the scene and create a dangerous situation.

Nor does the location of the search of Seals’s bag invalidate the search. Although agents searched Seals’s bag at a location other than that of Seals’s arrest, it is similarly clear that agents transported Seals and his bag to the HATF office out of concern about the imminent arrival of people who might create a safety issue. Id. The agents were so anxious to move Seals before Penitani arrived that they did not even search Seals himself before moving him to the HATF office. The HATF office was within the airport complex, a short distance from the site of the arrest, and Seals and his bag were searched in the office.