dissenting.
I am deeply concerned by the majority’s ruling on the issue of suppression of physical evidence and must respectfully dissent. By holding that the search conducted in the defendant’s hotel room was reasonable, this court has permitted an unwarranted extension of the rules that have evolved under the Fourth Amendment.
The purpose of the Warrant Clause of the Fourth Amendment is to protect individuals from “unreasonable government intrusions into their legitimate expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). Therefore, when confronted by a warrantless search, a court must determine whether the search was reasonable in light of the surrounding circumstances. Because the defendant concedes that the police officers had probable cause to arrest him, the specific question is whether this search was properly conducted incident to an arrest.
It is well established that when a search is conducted incident to an arrest, the officers may search both the arrestee and the area within the arrestee’s control in order to remove any weapons and to seize any evidence which might be concealed or destroyed. Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, once a defendant is arrested and under the control of officers, the area of permissible search is narrowed. United States v. Griffith, 537 F.2d 900, 904 (7th Cir. 1976). Yet the district court did not use this more limited standard when ruling on the defendant’s motion to suppress, despite the fact that the defendant was under control at the time of the search.
Instead, the judge stated that because of the presence of the third party in the room, he found the search of the bed and turning back of the bed covers to be reasonably incident to the arrest. He further found that the search of the handbag and the discovery of the “gun” was “not an unreasonable search and seizure.” He so ruled despite the fact that many officers were present, that the third party was a nude woman holding a sheet for cover, and that officer Grant testified he was searching for evidence.
In making his determination that the search and seizure was reasonable, the judge used an incorrect standard. In light of all the other factors, the mere presence of the third party alone cannot justify a search of the area within that person’s control. Only a clear and present danger to the officers could justify such a search. Instead of permitting the woman to dress, posting a guard outside the room, obtaining a warrant and later returning to search the room, the officers chose to proceed immediately by searching the area near this nude woman. To hold such a search was reasonable is to extend the Chimel decision beyond permissible constitutional limits.
I therefore would reverse and remand for a new trial.