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Arrest — Search Incident to Arrest — Chimel “Immediate Control” Rule – Inapplicable Where Defendant Removed from Scene

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified2007 WI App 174
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Where the defendant had already been removed from the premises following his arrest, a search of his bedroom couldn’t be justified under a search-incident rationale:

¶51      The State contends that Officer Garcia’s second search of the defendant’s bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was “within [the defendant’s] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers’ sight.” [28]

¶52      Although the bedroom might be considered within the defendant’s immediate presence or control for Chimel purposes, we do not agree with the State that the second search of the bedroom was a search incident to arrest under the circumstances of the present case. The second search occurred after the defendant had been removed from the home. [29]  The defendant could not have gained possession of a weapon or destructible evidence from his bedroom when the defendant was not even inside the home when the bedroom and canister were searched and the contents of the canister seized.

The court distinguishes State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990),  but in the process stresses that the Chimel rule remains available even when the arrestee is handcuffed; the line is drawn when the defendant is removed from the scene: “The purposes of the search incident to arrest were achieved by removing the defendant from his home. By removing the defendant from the home, the officers eliminated the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape or to prevent the destruction or concealment of evidence,” ¶56.

Like effect: People v. Leal, Cal App No. H031174, 2/28/08 (“In sum, Thornton is limited to automobile-involved police action. (¶) For Fourth Amendment purposes, the difference between an automobile and one’s private residence is significant.”).

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