N.D.Ill.: Gant does not apply to dwellings

Defendant was arrested after he walked out of a bedroom, and a search incident was conducted of the bedroom. The court finds that Gant does not apply to houses. United States v. Harris, 2009 U.S. Dist. LEXIS 86269 (N.D. Ill. September 21, 2009)*:

Assuming the seizure of the gun occurred before law enforcement obtained Truss’ consent to search, the gun was justifiably seized as incident to Defendant’s lawful arrest because the gun was recovered from the bedroom after Defendant was arrested coming out of the bedroom. See United States v. Tejada, 524 F.3d 809 (7th Cir. 2008) (law enforcement justified in searching the area that was in the immediate reach of the defendant at the time he was arrested, even though he was no longer there at the time of the search). In Tejada, the Seventh Circuit reasoned that “if the police could lawfully have searched the defendant’s grabbing radius at the moment of arrest, he has no legitimate complaint if, the better to protect themselves from him, they first put him outside that radius.” Id. at 812.

Here, it is uncontested that Defendant was in the bedroom at the time that agents entered the residence and that Defendant was apprehended by agents as he was coming out of the bedroom. The bedroom, and specifically the mattress, was within Defendant’s grabbing radius at the time of his arrest. See Tejada, 524 F.3d at 811 (entertainment center that was within a few steps of the defendant at the time of his arrest was within defendant’s grabbing distance). Thus, even though at the time of the search the Defendant was removed from the radius, under Tejada, the agents were justified in recovering the gun.

Defendant argues that Arizona v. Gant compels a different result. 129 S.Ct. 1710 (2009). In Gant, the Supreme Court recently held that a warrantless search of vehicle incident to arrest is only authorized if the arrestee is within reaching distance at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. Id. at 1723. However, the holding in Gant was limited to searches of vehicles incident to the arrest of the vehicle’s recent occupant. Id. at 1723-24. As such, Gant fails to abrogate Tejada, on which I rely.

The room next to where defendant was arrested was subject to a valid protective sweep and not a search incident. United States v. Lemus, 582 F.3d 958 (9th Cir. 2009)*:

According to Buie, a “protective search ‘incident to the arrest'” to protect the arresting officers from the danger of a surprise attack can be completed without reasonable suspicion or probable cause if two conditions are present. First, the area searched must “immediately adjoin []” the area of arrest. Id. Second, the area searched must be one “from which an attack could be immediately launched,” and thus in any event must be capable of concealing at least one person. Id. Both of these conditions are satisfied here.