concurring in part and dissenting in part.
In all respects, save one, I am in agreement with the panel decision. I respectfully dissent, however, to that portion of the majority’s opinion that deals with the post-arrest seizure of plaintiff’s rifle. The majority attempts to justify the seizure of the rifle under the incident to arrest exception to the fourth amendment's requirement that police obtain a warrant before a search and seizure of a citizen’s property. The majority cites Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), for the proposition that the search incident to arrest principle justifies the search and seizure of evidence on “the arrestee’s person and ‘area within his immediate control’ — construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.” The majority takes the position that since at the time of plaintiffs arrest his rifle was accessible to him, the police officers’ later seizure of the rifle was lawful.
But the rationale justifying the search incident to arrest exception is that some exigency exists at the time of the search or seizure, not arrest. Otherwise, no actual exigency, such as danger to the safety of the police or others, would exist. The actual exigency at the time of arrest would become fictional through transplantation to the time of the search and seizure. At the time the police seized the rifle in the present case, plaintiff was handcuffed and in the squad car. He no longer had access to the gun nor posed any danger to the police. Neither does the record suggest that the rifle would have been later unavailable for seizure had the police obtained a warrant. Thus, the rationale justifying the exception does not support the seizure of the rifle.1 The danger had passed.
I therefore find the majority’s expansion of the exception unwarranted.2
. The search incident to arrest exception does apply to the seizure of the knife on Davis’ person at the time of his arrest. The knife was within Davis’ reach when seized and posed a danger to the police.
. I am unpersuaded by the reasoning of the court in United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir.), cert. denied, — U.S. —, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984). The Palumbo court concluded that the search incident to arrest exception "is not constrained because the arrestee is unlikely at the time of the arrest to actually reach into that area.” The court cited New York v. Belton, 453 U.S. 454, 459-60, 101 S.Ct. 2860, 2863-64, 69 L.Ed.2d 768 (1981). Belton did approve a warrantless search when the arrestees arguably no longer had access to the seized evidence. But Belton was a case concerning the application of the search incident to arrest exception to the search of an automobile. The present case concerns a seizure in the arrestee’s home. Fourth amendment rights are preeminent in the home. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).