{"id":3500,"date":"2010-02-11T16:50:52","date_gmt":"2009-11-02T07:34:34","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-11-02T07:34:34","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3500","title":{"rendered":"Cal.6: SI of house when handcuffed in police car unreasonable"},"content":{"rendered":"

On a Gant<\/a> remand, the search incident of defendant’s house when he was in handcuffs in a police car was unreasonable. If, however, another person were likely present, the situation might be different. People v. Leal<\/a>, 178 Cal. App. 4th 1051, 100 Cal. Rptr. 3d 856 (6th Dist. 2009):<\/p>\n

The handgun found in defendant’s home was found in the area that was under his immediate control when he was arrested. The question, though, is whether it was under his immediate control when he was confined in a police car in handcuffs at some distance from the premises. The answer, plainly, is no, and thus the warrantless search was unreasonable under the Fourth Amendment. “‘Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.'” (Chambers v. Maroney (1970) 399 U.S. 42, 47.) “[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house” (ibid.)–nor when the suspect is safely lodged in a police car outside the home.<\/p>\n

. . .<\/p>\n

This case is different. In contrast to Summers, in which the suspect “was still being removed” (People v. Summers, supra, 73 Cal.App.4th at p. 291), “one roommate was present and free of police control” (ibid.), and “another was unaccounted for” (ibid.), the police here had determined that defendant was the only one on the premises during his arrest and they had safely confined him outside his house and fully secured the scene. Neither he nor anyone else was in a position to jeopardize the officers’ safety or destroy evidence. Summers properly stated the general rule, namely that when “there is no threat to the officers because the suspect has been immobilized [and] removed, and no one else is present, it makes no [constitutional] sense that the place he was removed from remains subject to search merely because he was previously there.” (Id. at pp. 290-291.) Summers departed from that rule only because the circumstances the case presented were fluid, unstable, and dangerous.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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