United States v. Kenneth Wayne Johnson, United States of America v. Derrick Dewayne Goodman

LAY, Circuit Judge

(concurring).

I concur in the result of the opinion. However, I express substantial doubt that the plain view doctrine should be applicable when the officer is involved in making a search. I would sustain the admissibility of the evidence on the ground that Johnson was under custodial arrest and, as such, the officers had probable cause to reasonably search his person, as well as his nearby automobile, for any weapons that he might have. See Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969); cf. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Moodyes v. United States, 400 F.2d 360 (8th Cir. 1968), cert. denied, 397 U.S. 998, 90 S.Ct. 1141, 25 L.Ed.2d 407 (1970). At the time of the search Johnson was a known fugitive. The extent of the initial search was limited to weapons, which were found. Under the circumstances, the search was reasonable and should be upheld.