CA3: Search incident of gym bag of handcuffed defendant was valid

The officer had a warrant for the defendant and saw him in a check-in line at a hotel with a gym bag in hand. When the defendant’s confederate saw the officer, he shouted out to the defendant who turned to look at him. Hotel security grabbed the confederate. The officer grabbed defendant to arrest him, and the defendant dropped the gym bag to his feet. Defendant was handcuffed, and the search incident of the bag on the spot was valid under Gant. United States v. Shakir, 616 F.3d 315 (3d Cir. 2010):

We held that this search was not lawfully incident to Myers’s arrest. In doing so, we quoted with approval an opinion of the Court of Appeals for the District of Columbia Circuit which suggested that a search under these circumstances would be valid as incident to the arrest “[a]bsent some objective basis upon which to conclude that the arresting officer had no reason to fear either the arrestee or the environment in which the arrest unfolded.” Id. at 267 (quoting United States v. Abdul-Saboor, 85 F.3d 664, 670, 318 U.S. App. D.C. 98 (D.C. Cir. 1996) (emphasis omitted)). We also acknowledged that “where, in the heat of an arrest, an officer concludes that a particular item is within the arrestee’s grasp, courts are extremely reluctant to subsequently determine that the officer’s conclusion was unreasonable and thereby suppress whatever evidence may have been found.” Id. at 273. Nevertheless, the facts of Myers’s case presented an objective basis to conclude that he was no longer dangerous when the search occurred: he was lying on the floor and guarded by two policemen, he had already been frisked for weapons, the bag that was searched was three feet away from him and zipped shut, and the searching officer had not seen the need to search the bag at the time of arrest, but instead went downstairs and interviewed a witness first. Id. Significantly for purposes of the instant appeal, we noted that, “[h]ad [the officer] searched the bag . . . before going downstairs, we would have a different set of circumstances to consider against the teachings of Chimel and its progeny.” Id. at 274. We also emphasized that the officer’s testimony suggested that he was not concerned about the possible presence of a weapon until after he opened the bag. Id. at 274.