PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2665
UNITED STATES OF AMERICA
v.
NAIM NAFIS SHAKIR,
a/k/a Naim Shakir
a/k/a James Perry
NAIM NAFIS SHAKIR,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cr-00488)
District Judge: Honorable Anita B. Brody
Argued April 13, 2010
Before: FISHER, HARDIMAN and COWEN, Circuit Judges.
(Filed: August 10, 2010)
Joseph F. Minni [Argued]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-0000
Attorney for Appellee
Christy Unger [Argued]
David L. McColgin
James J. McHugh, Jr.
Leigh M. Skipper
Brett G. Sweitzer
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106-0000
Attorneys for Appellant
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
In this appeal we consider the legality of a warrantless
search incident to arrest in light of the Supreme Court’s decision
in Arizona v. Gant, 129 S. Ct. 1710 (2009).
2
I.
On May 22, 2007, a Pennsylvania state magistrate judge
issued an arrest warrant for Naim Nafis Shakir, who police
believed was involved in an armed robbery of a PNC Bank a
month earlier. The warrant was promptly entered into the
database of the National Crime Information Center and came to
the attention of Federal Bureau of Investigation agents in
Pennsylvania. Because those agents believed Shakir had
gambling ties to Atlantic City, New Jersey, they enlisted the help
of FBI Special Agent Joseph Furey in New Jersey.
The following day, Special Agent Furey learned that
Shakir had recently stayed in the Trump Plaza Hotel and Casino.
In response, Furey asked Atlantic City Police Detective David
Smith, who was assigned to an FBI task force, to investigate the
lead. Detective Smith visited the Trump Plaza and was
informed that not only had Shakir been gambling at the casino
the previous day, but he was expected to check into the hotel at
4:00 that afternoon. Since it was already around 2:00 p.m.,
Smith immediately notified Special Agent Furey, who began to
organize a team to arrest Shakir upon his appearance at the
hotel. Before the arrest team arrived, however, security spotted
Shakir entering the hotel. When he learned this, Smith asked
Special Agent Furey to expedite his arrival to effectuate the
arrest. Smith also called the Atlantic City Police to request a
squad car. Smith then proceeded to the lobby with two hotel
security personnel; all three were dressed in plainclothes.
Soon after he entered the lobby, Detective Smith spotted
Shakir standing at the end of the check-in line some 25 feet
3
away, holding a gym bag. As Smith drew closer to Shakir, he
heard a man about 15 feet away yell “shit!,” which Smith took
as a warning to Shakir. Although Shakir turned as if to respond,
he simply maintained eye contact with the shouter. Meanwhile,
Detective Smith asked the hotel security agents, both of whom
were unarmed, to detain Shakir’s apparent confederate while
Smith hurried over to Shakir, grabbed his arm, and placed him
under arrest. Shakir complied and dropped his bag on the floor
at his feet.
Detective Smith immediately patted down Shakir and
found no weapons on his person. Smith attempted to handcuff
Shakir, but was unable to do so because of Shakir’s girth.
Indeed, Shakir advised Smith that police “usually use three sets
of handcuffs.” Shakir was polite and compliant during the
arrest, and after the initial excitement, the arrest was “very low
key.” There were approximately 20 people in the hotel lobby
during and following the arrest.
Within five minutes of Shakir’s initial arrest, two armed
police officers arrived with handcuffs which Smith used to
restrain Shakir. While the other officers held Shakir by the
arms, Smith bent down to investigate the contents of the bag at
Shakir’s feet. Therein Smith found clothes and a large amount
of cash, but no weapons. Some of the cash in the bag was later
identified as having been stolen during an armed robbery of the
Belco Credit Union in Lancaster, Pennsylvania on May 21, 2007
(not from the PNC Bank robbery that prompted the warrant for
Shakir’s arrest).
4
Shakir was indicted on one count of armed robbery of the
Belco Credit Union in violation of 18 U.S.C. §§ 2113(d) and 2.
Prior to trial, Shakir filed a motion to suppress evidence,
claiming Detective Smith’s search of his gym bag violated his
Fourth Amendment right to be free from unreasonable searches.
After the District Court denied the motion, Shakir proceeded to
trial and was convicted by a jury.
II.
The District Court had jurisdiction under 18 U.S.C. §
3231 and we have jurisdiction under 28 U.S.C. § 1291. We
review the District Court’s factual findings for clear error, and
we exercise plenary review over its application of law to those
facts. United States v. Bond, 581 F.3d 128, 133 (3d Cir. 2009).
III.
Shakir’s sole argument on appeal is that the cash found
by police was inadmissible at trial because it was the fruit of an
illegal search. The Government counters that it conducted a
legal search incident to arrest. Under this well-recognized
exception to the warrant requirement of the Fourth Amendment,
“[w]hen an arrest is made, it is reasonable for the arresting
officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist arrest
or effect his escape.” Chimel v. California, 395 U.S. 752, 762-
63 (1969). The permissible scope of a search incident to arrest
includes “the arrestee’s person and the area ‘within his
immediate control’—construing that phrase to mean the area
5
from within which he might gain possession of a weapon or
destructible evidence.” Id. at 763.
The crux of Shakir’s appeal is that because he was
already handcuffed at the time Detective Smith searched his bag,
he had no access to any weapon or destructible evidence that
might have been in the bag. The Government responds by citing
several appellate decisions upholding searches incident to arrest
conducted after the suspect was handcuffed. See, e.g., Virgin
Islands v. Rasool, 657 F.2d 582, 584-85, 588-89 (3d Cir. 1981);
United States v. Horne, 4 F.3d 579, 587 (8th Cir. 1993); United
States v. Nohara, 3 F.3d 1239, 1243 (9th Cir. 1993); United
States v. Helmstetter, 56 F.3d 21, 23 (5th Cir.1995); United
States v. Mitchell, 64 F.3d 1105, 1110-11 (7th Cir. 1995);
United States v. Abdul-Saboor, 85 F.3d 664, 668-69 (D.C. Cir.
1996). These decisions followed a general trend among the
courts of appeals, following the Supreme Court’s decision in
New York v. Belton, 453 U.S. 454, 460 (1981), toward a rule that
although “the search is limited to the area under the defendant’s
control at the time of his arrest, the fact that it is no longer under
his control at the time of the search does not invalidate the
search.” United States v. Tejada, 524 F.3d 809, 812 (7th Cir.
2008); see also Abdul-Saboor, 85 F.3d at 669 (“[I]f the courts
were to focus exclusively upon the moment of the search, we
might create a perverse incentive for an arresting officer to
prolong the period during which the arrestee is kept in an area
where he could pose a danger to the officer.”); United States v.
McLaughlin, 170 F.3d 889, 893 (9th Cir. 1999); United States
v. Currance, 446 F.3d 554, 557 (4th Cir. 2006) (“[O]fficers may
separate the suspect from the item to be searched, thereby
6
alleviating their safety concerns, before they conduct the
search.”) (citation, quotation marks and alteration omitted).
Like the District Court’s decision denying Shakir’s
motion to suppress, however, the cases upon which the
Government relies all predated the Supreme Court’s decision in
Arizona v. Gant, 129 S. Ct. 1710 (2009), which narrowed the
scope of the search-incident-to-arrest doctrine. In Gant the
Supreme Court held that officers could not search an arrestee’s
car after he had been removed from the vehicle and secured,
noting that “[t]o read Belton as authorizing a vehicle search
incident to every recent occupant’s arrest would thus untether
the rule from the justifications [i.e., officer safety and preventing
the destruction of evidence] underlying the Chimel exception.”
Gant, 129 S. Ct. at 1719. Accordingly, the Gant Court
concluded that searches of a suspect’s automobile are not
permitted incident to an arrest when the police “could not
reasonably have believed . . . that [the arrestee] could have
accessed his car at the time of the search.” Id.
Because Gant involved an automobile search, and
because it interpreted Belton, another automobile case, the
Government contends that the rule of Gant applies only to
vehicle searches. We do not read Gant so narrowly. The Gant
Court itself expressly stated its desire to keep the rule of Belton
tethered to “the justifications underlying the Chimel exception,”
id., and Chimel did not involve a car search. Moreover, as we
noted above, many courts of appeals perceived Belton to
establish a relaxed rule for searches incident to arrest in all
contexts. See, e.g., Tejada, 524 F.3d at 812 (applying Belton to
search of a cabinet in a home); Abdul-Saboor, 85 F.3d at 669
7
(applying Belton to an apartment search). Because Gant
foreclosed such a relaxed reading of Belton, there is no plausible
reason why it should be held to do so only with respect to
automobile searches, rather than in any situation where the item
searched is removed from the suspect’s control between the time
of the arrest and the time of the search. Although this Court has
never explicitly adopted a “time of the arrest” rule like that
adopted in the aforementioned cases, we do read Gant as
refocusing our attention on a suspect’s ability (or inability) to
access weapons or destroy evidence at the time a search incident
to arrest is conducted.
It is in this vein that Shakir points to our decision in
United States v. Myers, 308 F.3d 251 (3d Cir. 2002), which we
regard as being consistent with Gant despite predating it. In
Myers, a single policeman responded to a 911 call reporting a
disturbance involving a gun in an apartment. Id. at 253. Upon
arriving at the scene, he found the defendant hiding. The
defendant came out and laid face down on the floor when
ordered, throwing a bag down three feet away from himself in
the process. Id. The officer handcuffed the defendant and
patted him down, finding nothing. Two other officers then
arrived, and they took custody of the defendant while the first
officer went downstairs to briefly interview a woman who had
been arguing with the defendant. Id. at 254. The first officer
later returned upstairs, where Myers was still lying face down,
handcuffed and attended by the two officers. Noticing that
Myers was looking at the bag on the floor and acting nervously,
the first officer searched the bag and found a gun inside. Id.
8
We held that this search was not lawfully incident to
Myers’s arrest.1 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 (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
1
The Government notes that we also concluded that there
was no probable cause to arrest Myers, which was an alternative
basis for suppression. The Government therefore argues that
our conclusions in Myers with respect to the search-incident-to-
arrest doctrine were dicta. Contrary to the Government’s
argument, “[w]hen two independent reasons support a decision,
neither can be considered obiter dictum; each represents a valid
holding of the court.” Kushner v. Winterthur Swiss Ins. Co., 620
F.2d 404, 408 n.4 (3d Cir. 1980).
9
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.
As in Myers, Shakir was handcuffed and restrained by
two policemen at the time his bag was searched. Unlike in
Myers, however, Shakir was standing up at the time of the
search, he was in a public place with some 20 people around,
and his bag was right next to him. In addition, the police had
reason to believe that one or possibly more of Shakir’s
accomplices was nearby, and the suspected accomplice Smith
had identified was restrained only by two unarmed private
security officers. Moreover, Detective Smith did not leave the
scene before searching the bag, and he testified that his chief
concern in searching the bag was to prevent any weapons that
might be inside from being used to injure police or the innocent
bystanders in the hotel lobby. As a result, several of the key
elements of the objective basis on which we concluded that
Myers was no longer dangerous are not present in this case.
Because Myers is not binding here, we are left to
consider, under Gant and other relevant precedents, whether
Shakir retained sufficient potential access to his bag to justify a
warrantless search. Specifically, we must consider whether the
fact that Shakir was handcuffed and guarded by two armed
10
policemen precluded his access to the contents of the bag. Gant
makes clear that whether a suspect is “secured” is an important
consideration in assessing the lawfulness of a warrantless
search. In fact, the Gant Court “h[e]ld that the Chimel rationale
authorizes police to search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of
the search.” Gant, 129 S. Ct. at 1719. This language could be
read to prohibit the search of the bag unless at the time of the
search Shakir was both (1) unsecured and (2) within reaching
distance of the bag. Under this reading, once a suspect is
“secured,” no searches would be permitted incident to his arrest,
regardless of whether the searched items are within his reaching
distance.
We find such an aggressive reading of Gant to be
unpersuasive, however, because it is inconsistent with the
remainder of the Gant opinion, with other Supreme Court
precedents, and with the valid concern for the safety of police
and the public. First, a closer reading of Gant reveals that the
Court’s references to a suspect being “unsecured” and being
“within reaching distance” of a vehicle are two ways of
describing a single standard rather than independent prongs of
a two-part test. In later formulations of its holding, the Gant
Court omitted any reference to whether Gant was secured or
unsecured, and looked instead simply to Gant’s ability to access
his vehicle. Thus, the Court stated: “[b]ecause police could not
reasonably have believed . . . that Gant could have accessed his
car at the time of the search . . . the search in this case was
unreasonable.” Id. at 1719. And in its final summation, the
Court explained that “[p]olice may search a vehicle incident to
11
a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search
. . . .” Id. at 1723. The conspicuous absence of any mention of
the “secured” status of a suspect suggests that the Court did not
regard it as an independent element that must be satisfied in
order to justify a search incident to arrest. Accordingly, we
understand Gant to stand for the proposition that police cannot
search a location or item when there is no reasonable possibility
that the suspect might access it.
Second, if Gant is construed to forbid all container
searches after a suspect is handcuffed or held by police, it would
not only narrow Belton but also effectively eliminate a major
element of the search-incident-to-arrest doctrine. In Chimel, the
Supreme Court stated that searches of “the arrestee’s person”
and “the area into which an arrestee might reach” could be
aimed at finding weapons the arrestee might use to “effect his
escape.” 395 U.S. at 763. The Court thus contemplated that
such searches would take place after the suspect is restrained in
some way. To hold that a container search incident to arrest
may not occur once the suspect is under the control of the
police, but before he has been moved away from the item to be
searched, would eviscerate this portion of Chimel. Gant did not
purport to do any such thing.
Third, we note that handcuffs are not fail-safe. As the
Court of Appeals for the Fifth Circuit has stated, it is not true
that
by handcuffing a suspect, the police instantly and
completely eliminate all risks that the suspect will
12
flee or do them harm. . . . Handcuffs are a
temporary restraining device; they limit but do not
eliminate a person’s ability to perform various
acts. They obviously do not impair a person’s
ability to use his legs and feet, whether to walk,
run, or kick. Handcuffs do limit a person’s ability
to use his hands and arms, but the degree of the
effectiveness of handcuffs in this role depends on
a variety of factors, including the handcuffed
person's size, strength, bone and joint structure,
flexibility, and tolerance of pain. Albeit difficult,
it is by no means impossible for a handcuffed
person to obtain and use a weapon concealed on
his person or within lunge reach, and in so doing
to cause injury to his intended victim, to a
bystander, or even to himself. Finally, like any
mechanical device, handcuffs can and do fail on
occasion.
United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993).
The Sanders court noted that “in 1991 alone . . . at least four
police officers were killed by persons who had already been
handcuffed.” Id. at 209-10. And such incidents continue. See,
e.g., United States Dep’t of Justice, 2008 Law Enforcement
O f f i c e r s K i l l e d & A s s a u l t e d ,
http://www.fbi.gov/ucr/killed/2008/summaries.html (follow
“TX” link) (officer killed by handcuffed suspect); United States
Dep’t of Justice, 2006 Law Enforcement Officers Killed &
Assaulted, http://www.fbi.gov/ucr/killed/2006/summaries.html
(follow “TX” link) (same). Thus, reading Gant to prohibit a
13
search incident to arrest whenever an arrestee is handcuffed
would expose police to an unreasonable risk of harm.
For the foregoing reasons, we hold that a search is
permissible incident to a suspect’s arrest when, under all the
circumstances, there remains a reasonable possibility that the
arrestee could access a weapon or destructible evidence in the
container or area being searched. Although this standard
requires something more than the mere theoretical possibility
that a suspect might access a weapon or evidence, it remains a
lenient standard.
IV.
Applying the legal standard we have enunciated to the
facts of this appeal, we conclude that there remained a sufficient
possibility that Shakir could access a weapon in his bag to
justify its search. Although he was handcuffed and guarded by
two policemen, Shakir’s bag was literally at his feet, so it was
accessible if he had dropped to the floor. Although it would
have been more difficult for Shakir to open the bag and retrieve
a weapon while handcuffed, we do not regard this possibility as
remote enough to render unconstitutional the search incident to
arrest. This is especially true when we consider that Shakir was
subject to an arrest warrant for armed bank robbery, and that he
was arrested in a public area near some 20 innocent bystanders,
as well as at least one suspected confederate who was guarded
only by unarmed hotel security officers. Under these
circumstances, the police were entitled to search Shakir’s bag
incident to arresting him. Consequently, suppression of the cash
14
found within the bag was not required and we will affirm the
judgment of the District Court.
15