Arresting defendant at his door and removing him did not permit search incident of house; Thornton does not apply to homes

Defendant was arrested at his door on a warrant, handcuffed, and put in a police car. The police conducted a protective sweep of the premises and then went back in and looked for evidence, finding a gun under a sweatshirt. The defendant was too far from the house to be able to obtain evidence or contraband. The search was governed by Chimel and not Thornton because the rationales are different. People v. Leal, 160 Cal. App. 4th 701, 73 Cal. Rptr. 3d 34 (6th Dist. 2008):

For Fourth Amendment purposes, the difference between an automobile and one’s private residence is significant. “[S]eizures of automobiles ‘deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.'” (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 54 (dis. opn. of Rehnquist, C. J.).) Automobiles are mobile and exposed, whereas homes are immobile and relatively unexposed. Even if a suspect has been arrested and taken outside the vehicle (see Thornton v. United States, supra, 541 U.S. at p. 618), the suspect could still fight for control of the vehicle, putting at risk officers’ safety and the preservation of evidence. Or the vehicle could be driven off by someone else, towed by a towing company to a remote location and left unguarded, or struck by a passing vehicle, leading to the loss of evidence. For reasons like this, “the officer faces a highly volatile situation.” (Id. at p. 621.) The circumstances accompanying defendant’s arrest were diametrically different.

The People rely on U.S. v. Hudson (9th Cir. 1996) 100 F.3d 1409, 1412-1413, 1418-1419, U.S. v. Nohara (9th Cir. 1993) 3 F.3d 1239, 1243, U.S. v. Turner (9th Cir. 1991) 926 F.2d 883, 888, and People v. Rege (2005) 130 Cal.App.4th 1584. All of these cases honor Chimel in the breach, paying homage to Chimel while going beyond what the Fourth Amendment permits under Chimel. (E.g., Hudson, at p. 1419 [stating that a “search may be conducted shortly after the arrestee has been removed from the area” and announcing another constitutionally questionable rule, namely that a warrantless search of the entire room in which the person was arrested is valid]; Nohara, at p. 1243 [tautologically stating that “events between the time of the arrest and search must not render the search unreasonable” and questionably holding that a search is permissible two to three minutes after the arrest with the suspect removed from the room]; Turner, at pp. 886-888 [approving warrantless search of part of room after suspect had been handcuffed and removed, partly on the ground that the Constitution should not be “‘entirely at odds with safe and sensible police procedures,'” but showing unease, stating “This holding is limited to the narrow facts of a short time span and the arrestee’s close proximity.” (Id. at fn. 2.)].)

The reasoning of U.S. v. Turner, supra, 926 F.2d 883, is flawed for reasons pithily and accurately set forth in Justice Scalia’s concurring opinion in Thornton v. United States, supra, 541 U.S. at page 627: “If ‘sensible police procedures’ require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search.” Justice Scalia’s opinion also disposes of the view in People v. Rege, supra, 130 Cal.App.4th 1584, that police must be “remove[d] … from the horns of a dilemma which would require them either to forego search incident to arrest, or to keep the suspect at least figuratively within arm’s reach while conducting such a search, thereby assuring the very danger it was meant to prevent.” (Id. at p. 1590.) And we are not the first court to decline to rely on U.S. v. Hudson, supra, 100 F.3d 1409. (State v. LaMay, supra, 140 Idaho at p. 840 [103 P.3d at p. 453].)

The fundamental flaw in the analysis contained in the cases we have criticized “is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government’s right; it is an exception–justified by necessity–to a rule that would otherwise render the search unlawful.” (Thornton v. United States, supra, 541 U.S. at p. 627 (conc. opn. of Scalia, J.).) Agreeing with Justice Scalia, U.S. v. Yanez (S.D. Tex. 2007) 490 F. Supp. 2d 765, stated: “The twin rationales of Chimel make clear that this doctrine is an exception to the warrant requirement borne of necessity–for the preservation of probative evidence and officer safety.” (Id. at p. 776.)