CA9: Drug arrestee was handcuffed face down; search incident of backpack next to him was valid under Gant

Defendant was arrested for drug offenses, and he was face down and handcuffed behind his back with his backpack next to him. The quick search incident of the backpack for weapons stopped once it was apparent there were none was valid, and this was different than Gant. United States v. Cook, 797 F.3d 713 (9th Cir. 2015), amended, United States v. Cook, 2015 U.S. App. LEXIS 22722 (9th Cir. Dec. 24, 2015):

We agree that Cook’s position at the time of the search—face down on the ground with his hands cuffed behind his back—is a highly relevant fact in determining whether the search was justified. Yet Cook’s argument ignores other countervailing facts that we must also consider. The search, both quick and cursory, was “spatially and temporally incident to the arrest.” Camou, 773 F.3d at 937. It occurred immediately after Officer Knight arrived on the scene, as Cook was being taken into custody. Cook’s backpack was right next to him. And, within twenty to thirty seconds, as soon as Officer Knight determined that the backpack contained no weapons, he immediately stopped the search. The brief and limited nature of the search, its immediacy to the time of arrest, and the location of the backpack ensured that the search was “commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that [Cook] might conceal or destroy.” Gant, 556 U.S. at 339.

Cook relies heavily on Gant, but the circumstances here are entirely different. Unlike Gant, who was arrested for driving on a suspended license, Cook was arrested for serious felony drug offenses. Significantly, Gant was locked inside a patrol car, while Cook’s backpack was easily within “reaching distance.” Id. at 344. The fact that Cook was already handcuffed is significant, but not dispositive. See United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993) (stating that “[a]lbeit 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 … like any mechanical device, handcuffs can and do fail on occasion”). We cannot say here that there was “no possibility” that Cook could break free and reach for a backpack next to him. Gant, 556 U.S. at 339.