S.D.N.Y.: Handcuffing a defendant alone does not bar a search incident in close proximity to him

Handcuffing a defendant alone does not bar a search incident in close proximity to him; there are plenty of things that a handcuffed defendant can still do. United States v. Cushnie, 2014 U.S. Dist. LEXIS 178919 (S.D. N.Y. December 31, 2014):

Assuming arguendo that Gant applies to searches outside the automobile context, that case does not require suppression of Cushnie’s cell phone, keys, and wallet. Unlike Cushnie, Gant “clearly was not within reaching distance of [the area searched]”; indeed, Gant was both handcuffed and placed in the back of a locked patrol car. See Gant, 556 U.S. at 344. Accordingly, it was beyond question that Gant had no “possibility of access” to his automobile. Here, by contrast, the items seized were located only two or three feet away from Cushnie. Although Cushnie was handcuffed, and several officers were present in the living room where he had been detained, these facts do not demonstrate that there was no possibility that Cushnie could have reached his wallet, cell phone, or keys. Indeed, courts interpreting Gant have upheld searches incident to arrest even where an arrestee is handcuffed or otherwise restrained by police. See, e.g., United States v. Perdoma, 621 F.3d 745, 750 (8th Cir. 2010) (citing cases and noting that Gant does not hold that “an arrestee who is restrained in some fashion by law enforcement necessarily is secured”). In sum, even where an arrestee is restrained, the critical issue is whether the item in question remains in “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 763.

This analysis recognizes the reality that “handcuffs are not fail-safe.” United States v. Shakir, 616 F.3d 315, 320 (3d Cir. 2010) (upholding search of the contents of defendant’s bag pursuant to search incident to arrest exception where defendant was handcuffed and physically restrained by two policemen at the time of the search). As the Third and Fifth Circuits have noted,

it is not true that “by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will flee or do them harm …. Handcuffs are a temporary restraining device; they limit but do not eliminate a person’s ability to perform various acts. They obviously do not impair a person’s ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person’s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person’s size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. Finally, like any mechanical device, handcuffs can and do fail on occasion.”

Id. at 320-21 (quoting United States v. Sanders, 994 F.3d 200, 209 (5th Cir. 1993)).

In sum, the fact that Cushnie was handcuffed and in the presence of several officers does not demonstrate that he had no ability to destroy or conceal evidence, or obtain a weapon, located two or three feet away. Assuming arguendo that Gant applies here, this Court concludes that “there remain[ed] a reasonable possibility that [Cushnie] could access a weapon or destructible evidence in the … area [within his immediate control]” — an area in which his cell phone, car keys, and wallet were found. Id. at 321. Accordingly, these items were properly seized incident to Cushnie’ s arrest.