                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-1395
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

APOLINAR TEJADA,
                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 05 CR 810—Elaine E. Bucklo, Judge.
                          ____________
    ARGUED NOVEMBER 14, 2007—DECIDED APRIL 10, 2008
                          ____________


 Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. The defendant pleaded guilty
to federal drug offenses (and was sentenced to 120 months
in prison), reserving however his claim that the drugs used
in evidence against him had been seized in violation of
the Fourth Amendment by DEA agents who did not have
a search warrant. The district judge, after a hearing on
the defendant’s motion to suppress the evidence, ruled
that the drugs had been seized as a lawful incident to his
arrest and alternatively that they would inevitably have
been discovered.
2                                              No. 07-1395

  One of the agents, posing as a buyer of cocaine, met
with the defendant in the parking lot of a restaurant and
was shown by him a small blue travel bag containing
the cocaine that the agent had agreed to buy. But the
defendant told him that the sale would have to take
place not there but in the defendant’s apartment, which
was nearby. The defendant drove from the parking lot,
and the agent followed him to the apartment house and
saw him enter an attic apartment by an exterior staircase
and stand at the window holding the bag. Together with
12 to 15 other undercover agents, the agent entered the
apartment house and forced open the door of the defen-
dant’s tiny apartment (400 square feet). When the defen-
dant refused to obey their order to get down on the floor,
they forced him down and handcuffed his hands behind
his back. During the scuffle he reached for a gun in his
waistband, but the agents seized it.
  With the defendant handcuffed and face down on the
floor, the agents did a protective sweep of the apartment to
make sure that no one else was in it and that there were no
weapons that the defendant might grab for. One of the
places searched was an “entertainment center” in the
living room. It seems, though the record is unclear and
the district judge made no finding, that by this time
the defendant was on the floor in the kitchen; but the
kitchen was close to the entertainment center.
  In the entertainment center was a closed cabinet, which
the agents opened. And in the cabinet was the blue travel
bag that the defendant had exhibited to the agent in the
parking lot. The agents unzipped the bag and inside
found another bag, which they opened, discovering
cocaine. By the time they unzipped the blue travel bag,
the agents knew there was no one else in the apartment
besides themselves and the defendant.
No. 07-1395                                                 3

  The defendant was arrested lawfully, even though the
arrest took place in his home and the police did not have
a warrant. They could not have gotten a warrant in time
and were therefore justified in arresting the defendant
without one (“exigent circumstances”). The sale of the
cocaine was originally to have taken place in the restau-
rant’s parking lot, and had that happened the agent
would have had the bag of cocaine and no need for a
warrant. Unexpectedly, the defendant at the last minute
insisted that the sale take place in his apartment. The
agent decided to arrest the defendant on the spot. The
defendant had shown him the drugs, so there was prob-
able cause to arrest him. The agent gave a signal to fellow
officers to assist with the arrest, but something went awry
and they did not appear, so the agent went to the defen-
dant’s building and when he arrived he was able to sig-
nal to the other officers. Before they arrived, the defendant
entered the building and went into his apartment—at
which point the sound of the sirens of the arriving
police cars could be heard. With the defendant alerted
to their arrival, the police were justified in entering the
apartment immediately.
  As an incident to a lawful arrest, the police can search not
only the person they have arrested to make sure he
doesn’t have a weapon but also and for the same purpose
they can search the area within his immediate control—the
area within grabbing distance—in which a weapon
might be concealed that he could attempt to use against
the officers or in which there might be evidence of his
crime that he could destroy. Chimel v. California, 395 U.S.
752, 763 (1969); United States v. Thomas, 512 F.3d 383, 387
(7th Cir. 2008). There is no doubt that the police were
entitled to open the cabinet in the entertainment center.
4                                              No. 07-1395

The defendant had identified himself as a dangerous
person by resisting arrest and reaching for a gun even
though he knew the crowd of officers were indeed law
enforcement officers and not rival gangsters. He had a
gun in his waistband; he might have other guns in the
apartment—perhaps in the “entertainment center.” The
apartment was tiny, which meant not only that there
were few other places in which to hide another gun or
other guns but also that the defendant was within a
few steps of the entertainment center. Handcuffed, lying
face down on the floor, and surrounded by police, he
was unlikely to be able to make a successful lunge for
the entertainment center. But the police did not know
how strong he was, and he seemed desperate.
   So they could open the cabinet in the entertainment
center. In it was the telltale blue travel bag. They knew
it contained cocaine. It might also have contained a gun.
But while it is conceivable though unlikely that the de-
fendant could have make a successful lunge for the en-
tertainment center and opened the cabinet and grabbed
something inside it, it is inconceivable that having
opened the cabinet door he would have had time to unzip
the travel bag without being wrestled to the floor once
again by the more than dozen police, who having ascer-
tained that there was no one else in the apartment would
not have been distracted from the task of re-subduing him.
  But if this is wrong, what is inconceivable squared is
that he could have unzipped not only the blue travel bag
but also the bag inside it. That was the bag containing
the cocaine used in evidence against him. The agents did
not need to unzip that bag in order to protect themselves
or prevent the destruction of evidence, and there is author-
ity that that is enough to condemn the search. United States
No. 07-1395                                                 5

v. Lyons, 706 F.2d 321, 324-25, 330-31 (D.C. Cir. 1983);
United States v. Cueto, 611 F.2d 1056, 1062 (5th Cir. 1980).
Most cases, however, including our own United States
v. Fleming, 677 F.2d 602, 607 (7th Cir. 1982), uphold the
lawfulness of such searches. E.g., United States v. Williams,
483 F.3d 425, 430 (6th Cir. 2007); United States v. Currence,
446 F.3d 554, 557 (4th Cir. 2006); United States v. Hudson,
100 F.3d 1409, 1413-14, 1420 (9th Cir. 1996); United States
v. Turner, 926 F.2d 883, 887-88 (9th Cir. 1991); see Myron
Moskovitz, “A Rule in Search of a Reason: An Empirical
Reexamination of Chimel and Belton,” 2002 Wis. L. Rev. 657,
682-85. Hudson, for example, a case factually similar to
this one, upheld the search of a closed rifle case that had
been next to the defendant in his bedroom when he
was arrested, even though the search was conducted
after he had been handcuffed and removed from the house.
  These cases, going beyond Chimel, hold that if 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. E.g., United States v. Currence, supra, 446 F.3d at
557; United States v. Hudson, supra, 100 F.3d at 1419. Their
rationale, as well explained in United States v. Abdul-Saboor,
85 F.3d 664, 669 (D.C. Cir. 1996), is that if the police
could lawfully have searched the defendant’s grabbing
radius at the moment of arrest, he has no legitimate
complaint if, the better to protect themselves from him,
they first put him outside that radius.
  Were this rationale wrong or inapplicable, the defendant
would find himself up against the doctrine of inevitable
discovery. Nix v. Williams, 467 U.S. 431 (1984); United
States v. Gravens, 129 F.3d 974, 979-80 (7th Cir. 1997). It
is true that cases such as United States v. Virden, 488 F.3d
6                                                No. 07-1395

1317, 1323 (11th Cir. 2007); United States v. Conner, 127 F.3d
663, 667-68 (8th Cir. 1997), and United States v. Mejia,
69 F.3d 309, 320 (9th Cir. 1995), say that the doctrine
should be confined to the situation in which the police
are gathering evidence with a view toward obtaining a
search warrant and it is certain or nearly so that had one
of them not jumped the gun and searched without a
warrant the investigation would have culminated in a
successful warrant application. And the agents never
had plans to obtain a search warrant.
   Against these cases it could be argued that the doctrine
of inevitable discovery should apply in any case in which
the police have probable cause to obtain a warrant; for
if they would have obtained one had they asked, why
should a defendant benefit from their failure to ask? But
while that is mentioned as a possible rule in United States
v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006), it is not en-
dorsed there and no court has embraced it. The obvious
objection is that if it were adopted the police might
never bother to apply for a warrant, in order to avoid the
risk that the application would be denied. United States v.
Johnson, 22 F.3d 674, 683 (6th Cir. 1994); United States v.
$639,558 in U.S. Currency, 955 F.2d 712, 710-21 (D.C. Cir.
1992); Robert M. Bloom, “Inevitable Discovery: An Ex-
ception Beyond the Fruits,” 20 Am. J. Crim. L. 79, 96 (1992).
But the opposite rule, which would allow the doctrine to
be invoked only if the police were in the process of ob-
taining a warrant, would be equally untenable. It would
confer a windfall, in violation of “the familiar rule of tort
law,” which has force in the criminal context as well (think
of the doctrine of harmless error, Fed. R. Crim. P. 51(a)),
“that a person can’t complain about a violation of his
rights if the same injury would have occurred even if they
No. 07-1395                                                  7

had not been violated.” United States v. Johnson, 380 F.3d
1013, 1014 (7th Cir. 2004); see also United States v. Stefonek,
179 F.3d 1030, 1035-36 (7th Cir. 1999).
  An attractive middle ground is to require the govern-
ment, if it wants to use the doctrine of inevitable discovery
to excuse its failure to have obtained a search warrant,
to prove that a warrant would certainly, and not merely
probably, have been issued had it been applied for. This
was the approach taken in United States v. Buchanan, 910
F.2d 1571, 1573 (7th Cir. 1990), and explained in United
States v. Elder, supra, 466 F.3d at 1091: “when a warrant is
sure to issue (if sought), the exclusionary ‘remedy’ is not
a remedy, for no legitimate privacy interest has been
invaded without good justification, but is instead a sub-
stantial punishment of the general public” (emphasis
added). A requirement of sureness—of some approach to
certainty—preserves the incentive of police to seek war-
rants where warrants are required without punishing
harmless mistakes excessively. For we must bear in mind
that the people who are punished when criminals
escape justice are not the police; they are the people on
whom criminals prey.
  Judged by this intermediate test, inevitable discovery
has been shown. The police unquestionably were lawfully
in the apartment, and unquestionably entitled to open
the cabinet in the entertainment center. And there in
plain view was the blue travel bag that they knew con-
tained cocaine. (Whether, though the bag itself did not
reveal its contents, those contents could be thought in
“plain view” because known with certainty, is an issue
that has divided the circuits, e.g., compare United States
v. Gast, 405 F.3d 797, 801-02 (9th Cir. 2005), with United
States v. Williams, 41 F.3d 192, 197-98 (4th Cir. 1994), and on
8                                                 No. 07-1395

which our court has not taken a position and need not
do so in this case.) There isn’t even the shadow of a
doubt that had they applied for a warrant to search the
bag, knowing what they knew, the warrant would have
been issued. The case is remote from one in which the
police, having probable cause to search a person’s house,
barge in and search without benefit of a warrant and
defend their conduct by invoking inevitable discovery. If
that defense prevailed, the requirement of obtaining a
warrant to search a person’s home would be out the
window. The requirement of obtaining a warrant to
search inside a container, when the container is known to
contain contraband or other evidence of crime, is far
from the core of the Fourth Amendment; as this case
illustrates, there is a diminished risk of error or fabrication.
                                                    AFFIRMED.




                    USCA-02-C-0072—4-10-08
