                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2002

USA v. Myers
Precedential or Non-Precedential: Precedential

Docket No. 01-3016




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PRECEDENTIAL

       Filed October 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3016

UNITED STATES OF AMERICA,

       Appellee

v.

CLIFTON MYERS;
a/k/a SAMUEL JENKINS,

       Clifton Myers,

       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 00-cr-00591
District Judge: Hon. William H. Yohn, Jr.

Argued: April 8, 2002

BEFORE: McKEE, BARRY & ALARCON,*
Circuit Judges

(Opinion Filed: October 11, 2002)
_________________________________________________________________

* The Honorable Arthur L. Alarcon, Senior Circuit Judge of the United
States Court of Appeals for the Ninth Circuit, sitting by designation.


       Jonathan D. Libby, Esq. (Argued)
       Elaine DeMasse, Esq.
       Defender Association of Philadelphia
       Suite 540 West--Curtis Center
       Independence Square West
       Philadelphia, PA 19106

        Attorneys for Appellant

       Lesley S. Bonney, Esq. (Argued)
       Office of the United States Attorney
       Suite 1250
       615 Chestnut Street
       Philadelphia, PA 19106

        Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.
We are asked to review the district court’s denial of a
motion to suppress physical evidence that the defendant
filed before entering a conditional guilty plea under Fed. R.
Crim. P. 11(a)(2).1 The district court sentenced Clifton
Myers to 15 years imprisonment after he pled guilty to
possession of a firearm by a convicted felon, in violation of
18 U.S.C. SS 922(g)(1) and 924(e). On appeal, Myers
contends that the district court erred in denying his motion
to suppress. We agree.2

I. Background

On July 19, 2000, Philadelphia Police Officer Leonard
Azzarano responded to a 911 radio call reporting a
disturbance in an apartment involving a person with a gun.
It was later discovered that the 911 call was placed by 12
year old Diane McKnight, who resided at the reported
_________________________________________________________________

1. Myers reserved the right to challenge the district court’s suppression
ruling as part of his plea agreement.

2. The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We
have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a).

                                2


residence with her mother.3 Upon arriving at the reported
location, Officer Azzarano saw a young adolescent girl
standing approximately two feet outside of the apartment
door. The girl was later identified as Diane McKnight, the
same girl who had placed the 911 call. McKnight told the
officer that her mother and her mother’s boyfriend were
inside the apartment fighting. The girl also said that her
mother’s boyfriend had a gun.

After announcing that he was a police officer, Azzarano
entered the first floor kitchen area but did not see anyone
there. However, he heard raised voices and a lot of
movement upstairs. Azzarano drew his gun, and again
announced that he was a police officer. He then proceeded
to the second floor where he encountered Lydia Bennett at
the top of the stairs. The officer asked Bennett where the
other person was, but Bennett told him that no one else
was upstairs. Her voice was shaky and she appeared upset.

Azzarano then noticed a man standing behind a door,
and the officer ordered him to come out at gun point. The
man, later identified as the defendant, Clifton Myers,
complied with the order. As Myers came from behind the
door, he was carrying a black school bag. The officer
ordered Myers onto the floor. As Myers got on the floor, he
threw the black school bag down, and it landed about three
feet from him. Officer Azzarano handcuffed Myers’ hands
behind his back as he was lying face down on the floor and
proceeded to pat him down. The officer did not find
anything during the pat-down.

Azzarano then asked Myers his name, and Myers
responded that it was "Samuel Jenkins." Two other officers
then arrived on the scene, and they kept watch over Myers
while Azzarano took Bennett downstairs to question her.4
_________________________________________________________________

3. Appellee’s brief refers to the girl as "Diane Bennett," but Appellant’s
brief as well as the transcripts in the Appendix refer to her as "Diane
McKnight."

4. Officer Azzarano explained that he "wanted to separate him [Myers]
from his -- girlfriend, the girl’s mom. . . . I wanted to take her
downstairs because in my experience, a witness or a complainant to a
domestic abuse is usually unlikely to -- to describe accurately what had
happened in front of someone who is -- who had been abusing them for
fear of retribution." App. at 74a.

                                3


During the brief questioning, Bennett told Azzarano that
her boyfriend’s name was "Clifton." As this name varied
from the name Myers had first given, Azzarano returned to
the second floor to again ask Myers his name. As he
approached Myers, Azzarano noticed that Myers kept
looking at the black bag he had set down when he was
arrested. Myers also appeared to be getting increasingly
nervous and Azzarano noticed that Myers’ voice was
shaking and halting.

Azzarano opened the bag and discovered a gun inside.
Myers was thereafter charged in state court with a violation
of Pennsylvania’s Uniform Firearms Act. His prosecution
was subsequently transferred to federal authorities who
indicted him for violating 18 U.S.C. SS 922(g)(1) and 924(e),
which makes it illegal for a convicted felon to possess a
firearm. Prior to the scheduled trial date, the district court
conducted the aforementioned suppression hearing on
Myers’ motion to suppress the gun. McKnight and Officer
Azzarano testified at that hearing on behalf of the
government.

At the conclusion of the hearing, the district court issued
an oral ruling from the bench denying Myers’ suppression
motion. The court expressed concern that Myers had been
charged with unlawful possession of a firearm even though
the weapon was not discovered until after his arrest.
However, the court reasoned that Officer Azzarano had
probable cause to arrest Myers either for simple assault
pursuant to 18 Pa. C.S.A. S 2701, domestic violence5
pursuant to 18 Pa. C.S.A. S 2711, or a violation of the
Uniform Firearms Act pursuant to 18 Pa. C.S.A. S 6106
("VUFA"). The court concluded that even though Myers
ultimately was only charged in federal court with
possession of a firearm by a convicted felon in violation of
18 U.S.C. SS 922(g)(1) and 924(e), this did not negate the
probable cause to arrest him on other charges. The court
_________________________________________________________________

5. For purposes of clarity, we will use the term"domestic violence" to
refer to the crime of simple assault committed in the context of a
domestic relationship. However, as discussed infra, domestic violence is
not a substantive crime separate and distinct from simple assault under
the laws of Pennsylvania.

                                4


found that the arrest was therefore valid and that the gun
was properly seized pursuant to a search incident to that
arrest. The court concluded:

       I find, basically, that the backpack was within the
       defendant’s immediate control and, therefore, I
       conclude that this was a search incident to the arrest
       and as I believe the defendant agreed at the time of
       oral argument, although perhaps he has said
       something to the contrary in papers since that time.

App. at 171a.6 We disagree.

Although we conclude that Officer Azzarano’s initial entry
into the residence was justified, we hold that there was no
probable cause to arrest Myers. Moreover, even assuming
arguendo that Officer Azzarano had probable cause to
arrest Myers, the suppression motion still should have been
granted because the government has not satisfied its
burden of establishing that the ensuing search was incident
to a lawful arrest.

II. Discussion

A. Officer Azzarano did not have Probable Cause
to Arrest Myers

Probable cause exists whenever reasonably trustworthy
information or circumstances within a police officer’s
knowledge are sufficient to warrant a person of reasonable
caution to conclude that an offense has been committed by
the person being arrested. See Beck v. Ohio, 379 U.S. 89,
91 (1964). The validity of an arrest is determined by the law
of the state where the arrest occurred. See Ker v. California,
374 U.S. 23, 37 (1963) (plurality opinion).
_________________________________________________________________

6. The court’s reference to the defendant’s "concession" at oral argument
is apparently based upon defense counsel’s response to an inquiry the
court made as counsel was arguing the suppression motion. However,
we do not believe that a fair reading of this record establishes that
defense counsel conceded that the gun was properly seized during a
search incident to an arrest.

                                5


In reviewing a suppression order, we review the district
court’s findings of fact for clear error. See United States v.
Roberson, 90 F.3d 75, 77 (3d Cir. 1996), citing Ornelas v.
United States, 517 U.S. 690, 699-700 (1996). We have
previously found that:
       [t]he determination that probable cause exists for a
       warrantless arrest is fundamentally a factual analysis
       that must be performed by the officers at the scene. It
       is the function of the court to determine whether the
       objective facts available to the officers at the time of
       arrest were sufficient to justify a reasonable belief that
       an offense was being committed.

United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir.
1984), citing Beck, 379 U.S. at 96. Our review of the district
court’s legal conclusion that probable cause existed is de
novo. See Ornelas, 517 U.S. at 699.

We construe the record in the light most favorable to the
government. See United States v. Riddick, 156 F.3d 505,
509 (3d Cir. 1998). However, in doing so we do not supply
the testimony that the government failed to elicit during the
suppression hearing. Similarly, we must refrain from
drawing inferences that are either not supported by the
record, or contrary to it, in an effort to uphold an arrest.
See United States v. Kithcart, 134 F.3d 529, 536 (3d Cir.
1997) ("Kithcart I"), and United States v. Kithcart, 218 F.3d
213 (3d Cir. 2000) ("Kithcart II").

In reviewing on-the-scene judgments of police officers we
must, of course, remember that police officers may well
"draw inferences and make deductions . . . that might well
elude an untrained person." United States v. Cort, 449 U.S.
411, 418 (1981). Nevertheless, an officer’s inferences and
deductions can only justify a warrantless arrest if the
government satisfies its burden of establishing the probable
cause necessary to support the arrest. Notwithstanding the
deference afforded the on-the-scene conclusion of police
officers, probable cause must ultimately be decided by the
courts, not the police. Glasser, supra.

As noted earlier, the district court found probable cause
to arrest Myers for either simple assault, domestic abuse,
or a VUFA, and therefore denied the suppression motion.

                                6


We conclude, however, that the police did not have
probable cause to arrest for any of those offenses. 7

1. Simple Assault

The district court concluded that Myers committed an
"ongoing" simple assault in the presence of Officer
Azzarano. See App. at 169a. The Dissent agrees. See
Dissent at 53. However, the facts simply do not support a
finding that Officer Azzarano witnessed a simple assault, or
that a simple assault was "ongoing" in his presence.

The relevant portions of Pennsylvania’s simple assault
statute are as follows:

       (a). . . A person is guilty of assault if he:
        (1) attempts to cause or intentionally, knowingly or
       recklessly causes bodily injury to another;

        . . .

        (3) attempts by physical menace to put another in
       fear of imminent serious bodily injury. . . .

18 Pa. C.S.A. S 2701(a) (2002). Under Pennsylvania law,
simple assault is a misdemeanor. As noted above,
Pennsylvania law governs the validity of Myers’ arrest. See
Ker, 374 U.S. at 37. The Pennsylvania legislature has
specifically limited the authority of police officers to make
warrantless arrests for misdemeanor offenses. An officer
may conduct a warrantless arrest for a misdemeanor only
if the offense is committed in the presence of the arresting
officer or when specifically authorized by statute. See Pa. R.
Crim. P. 502; Commonwealth v. Clark, 735 A.2d 1248, 1251
(Pa. 1999); Commonwealth v. Bullers, 637 A.2d 1326, 1329
(Pa. 1994). Officer Azzarano arrested Myers without a
warrant. Therefore, Azzarano’s arrest for simple assault is
not authorized under Pennsylvania law unless the record
establishes that a simple assault occurred in his presence.
_________________________________________________________________

7. The district court ruled that the arrest occurred when Myers was
ordered to the floor and handcuffed behind his back, and we agree. See
California v. Hodari D., 499 U.S. 621, 626 (1991). Moreover, neither
party contests that Myers was arrested rather than"detained" at that
point.

                                7


Absent actual injury, subsection (1) of the simple assault
statute requires an attempt to cause bodily injury. See 18
Pa. C.S.A. S 2701(a)(1). Moreover, Pennsylvania requires
"specific intent to cause bodily injury," in order to commit a
simple assault. Interest of J.L., 475 A.2d 156, 157 (Pa.
Super. 1984) (emphasis added).

Although Azzarano heard Myers and Bennett quarreling,
the officer never testified that he believed that Myers
intended to injure Bennett.8 The Dissent suggests that the
information from the police radio, combined with
McKnight’s statement upon Azzarano’s arrival, led the
officer to reasonably conclude that an armed man was
fighting with "the informant’s" mother. See Dissent at 46.9

In recounting the facts, the Dissent notes that McKnight
"is the oldest of six children." Id. That may be interesting
background, but it has nothing to do with the legality of
Azzarano’s actions. See United States v. Ubiles , 224 F.3d
213, 218 (3d Cir. 2000). It is clear that he had no
knowledge of how many brothers and sisters McKnight had,
or how many of them lived at that address. The only
testimony regarding the number of siblings and the identity
of who lived in the apartment came from McKnight at the
suppression hearing. See App. at 59a. Moreover, from the
record it appears that none of her brothers or sisters was
home during this incident.10
_________________________________________________________________

8. As noted above, the officer did explain that he took Bennett
downstairs because of a concern that she may not be candid in Myers’
presence based upon a fear of retaliation. However, that does not
amount to a reasonable belief that Myers had committed a simple
assault in the officer’s presence. The government had every opportunity
to establish that, but never even attempted to elicit any such testimony.
9. In describing McKnight as an "informant," the Dissent is apparently
attempting to draw support from cases that hold that information from
a reliable informant (such as McKnight) can support probable cause to
search under the Fourth Amendment. However, as we discuss in more
detail below, the inquiry into the probable cause to search (and the
related focus on the reliability of an "informant)," is not the equivalent of
an inquiry into probable cause to arrest. Steagald v. United States, 451
U.S. 204 (1981).
10. Moreover, if the government had established that Azzarano
reasonably believed that Myers was assaulting Bennett, and that such
assault occurred in the officer’s presence, the number of children in the
house would be irrelevant.

                                8


Myers could properly have been arrested for simple
assault under subsection (3) only if Azzarano reasonably
believed that Myers was menacing Bennett to such an
extent as to "put [her] in fear of imminent serious bodily
injury[.]" 18 Pa. C.S.A. S 2701(a)(3). Azzarano believed there
was a gun in the house, and common sense suggests that
one can menace someone within the meaning of subsection
(3) by waving a gun during an argument. See
Commonwealth v. Savage, 418 A.2d 629, 632 (Pa. Super.
1980). However, there is no evidence that Myers pointed a
gun at Bennett in Azzarano’s presence or otherwise, and
nothing supports the inference that Azzarano thought he
had. The Dissent concludes that "Myers’ conduct in Officer
Azzarano’s presence constituted an attempt by physical
menace to put Ms. Bennett in fear of imminent serious
bodily injury." Dissent at 56. However, Azzarano said that
the only thing Myers did in his presence was hide behind
a door. See App. at 70a-71a.

Azzarano’s own statement of what he reasonably
concluded from Myers’ actions appears on the record. We
need not read between any lines. The officer testified that
he pointed his gun at the door and ordered Myers to come
out. When asked what happened next, he explained:"At
that point, I was still by myself in the house and to be
honest with you, did not know exactly what was going on.
I handcuffed the male and placed him under arrest." Id. at
71a. There is no testimony that Azzarano believed that
Myers "menaced" anyone from behind the door by pointing
a weapon at either Azzarano or Bennett. Although the
officer certainly acted prudently in ordering Myers from
behind the door, this does not mean that Myers was
assaulting either Azzarano or Bennett as he hid from the
officer, and any finding to the contrary is clearly erroneous.
Officer Azzarano offered the following account of the
arrest to the district court:

        THE COURT: You said you arrested him. What did
       you arrest him for?

        OFF. AZZARANO: At that point, I was arresting him
       for domestic assault.

        THE COURT: And, what does that mean?

                                9


        OFF. AZZARANO: Well, I was arresting him for -- I
       could have been arresting him for terroristic threats or
       domestic -- violations of domestic assault. . . .

       * * *

        THE COURT: Well, I’m not familiar with a crime of
       domestic assault. That’s why I’m asking.

        OFF. AZZARANO: . . . the arrest for actually
       terroristic threats and, like I said, for domestic assault.
       That would be assault or some type of threat level
       towards someone who he had had a previous
       relationship with.

       * * *

        THE COURT: You mentioned terroristic threats,
       what was the threat?

        OFF. AZZARANO: At that -- that’s what I was --
       that’s what I was trying to determine at that time. I
       should -- I said domestic assault. What I meant to say,
       in fact, was domestic abuse.

        THE COURT: Well, but you said terroristic threats.
       What was the threat?

        OFF. AZZARANO: The threat that -- the threat
       would be a handgun.

Id. at 72a-73a (emphasis added).

The Dissent argues that Azzarano testified that he
arrested Myers for domestic assault because of his terrorist
threats with a handgun and suggests that our "refusal . . .
to accept Officer Azzarano’s undisputed testimony
concerning the inferences he drew, based on the totality of
the circumstances, is contrary to our duty as appellate
judges . . . ." Dissent at 52. However, the only fair
interpretation of Azzarano’s testimony is that he concluded
that Bennett had been in a quarrel with Myers, and that
Myers had a gun. That does not establish a reasonable
belief that Myers had assaulted Bennett, and it certainly
does not establish any assault in the officer’s presence.11
_________________________________________________________________
11. As we discuss below, it is not a crime to possess a gun inside of
one’s own home in Pennsylvania, see 18 Pa. C.S.A. S 6106(a), and
nothing on the record suggests that Officer Azzarano believed Myers did
not live with Bennett or that he did not have the right to possess a gun.

                                10


Officer Azzarano’s own explanations of his actions refute
a finding that Myers was assaulting anyone from behind
the door. Azzarano ordered Myers to the floor and arrested
him not because Myers assaulted Azzarano (or Bennett),
but because the officer was attempting to get control of the
situation for his own safety. As noted above, he testified
that he was alone at that time and "did not know what was
going on." App. at 71a. However, the fact that it was
prudent to get control of the situation does not create the
probable cause necessary for an arrest. See Terry v. Ohio,
392 U.S. 1 (1968).

In fact, at oral argument, the Assistant United States
Attorney attempted to analogize Azzarano’s actions to a
stop and frisk sanctioned by Terry v. Ohio, and the
government devotes an entire section of its brief to arguing
that "[t]he search of the bag was valid for a separate
reason, as incident to a valid Terry search." Government’s
Br. at 23 - 6. However, Terry has never been applied inside
a home. Even assuming arguendo that Terry could be
stretched to cover Officer Azzarano’s actions in a private
home, Terry would only allow the officer to exercise control
over Myers to protect himself and secure the situation. See
Ubiles, 224 F.3d at 217. A Terry stop cannot justify an
arrest unless additional developments that arise during the
course of the temporary detention establish the necessary
probable cause for an arrest. See Florida v. Royer, 460 U.S.
491, 507 (1983). However, there are no such additional
circumstances here.

The Dissent concludes that Myers’ "menacing" behavior
constituted an ongoing assault on both Bennett and Officer
Azzarano, because the "threat of imminent harm to Ms.
Bennett from an armed man did not cease." Dissent at 53.
However, as we have noted, this record does not establish
that Myers’ attempt to avoid detection by hiding behind a
door constituted a simple assault of either Bennett or
Officer Azzarano, and the officer’s testimony is not to the
contrary.

We realize that some of Azzarano’s testimony could, if
taken out of context, support a finding that Myers and
Bennett had been involved in a physical altercation, or that
it was reasonable for Azzarano to have thought so. Such an

                                11


altercation could support an inference that Myers actually
intended to injure Bennett, or that he had put her in fear
of imminent serious bodily injury. This is especially true
given the information about a gun. It appears that the
district court’s conclusion that Azzarano could have
arrested Myers for simple assault is based upon just such
an interpretation of the record, and the Dissent interprets
the record in a similar fashion. However, when fairly viewed
in context with all of the testimony here, the district court’s
finding that Azzarano reasonably concluded that Myers and
Bennett were "fighting" within the meaning of a simple
assault is clearly erroneous.12

The testimony establishes only that Azzarano believed
that Myers and Bennett had been "fighting" in the sense of
a verbal quarrel. It does not support a finding that he
believed they were engaged in a physical altercation or
struggle. It is also obvious that more than a verbal
argument is required to commit the crime of simple assault
under Pennsylvania law, and we suspect Pennsylvania law
is not unique in that regard.

Azzarano testified that, before entering the house,"the
girl outside had stated that her mom was inside arguing
with her boyfriend." Id. at 68a (emphasis added). Azzarano
also recalled that McKnight told him that the boyfriend had
a gun. See id. at 64a. When Azzarano encountered Bennett
inside her home, her appearance and demeanor led
Azzarano to conclude, not that she had been in a physical
fight or threatened by an armed boyfriend, as the Dissent
and district court conclude, but that she had been arguing.
Officer Azzarano testified:

       Her voice was shaky, she seemed upset and seemed
       that she had not -- it didn’t seem that she had just
       been involved in a normal discussion with someone.
       She seemed that she had been involved in some type of
       dispute.
_________________________________________________________________

12. As we have stressed, even assuming that Azzarano believed that a
physical altercation occurred between Myers and Bennett, it was clearly
not in his "presence" as he was on the first floor and the quarrel took
place out of sight on the second floor. Accordingly, the arrest would still
not have been authorized under Pennsylvania law.

                                12


Id. at 69a (emphasis added). Azzarano did not say that he
heard anything that would be consistent with a physical
altercation. He did not, for example, hear pushing, or
furniture being thrown about or breaking. Nor did he hear
anyone scream for assistance. He did not even testify that
he heard anyone cursing. He merely heard two raised
voices and "more than one set of footsteps . . . ." Id.
Significantly, defense counsel objected to the
characterization of a "fight" at one point during Azzarano’s
testimony. App. at 65a. The court overruled the objection
and reminded defense counsel that he could "explore it in
more detail through questioning," on cross examination. Id.
The prosecutor decided not to wait for cross examination,
and attempted to elicit that detail by asking Azzarano:
"could you be a little more specific about what it was that
you heard and why you thought it was a fight?" Id. The
officer responded to that invitation as follows:"I heard
raised voices, I heard a lot of movement upstairs that did
not sound like just a normal discussion." Id.

The Dissent would minimize the significance of such
testimony by suggesting that we are engaging in a"divide
and conquer analysis" that ignores the totality of the
circumstances. See Dissent at 41. However, it is only by
placing the use of the term "fight" in its proper context on
this record that we can fairly evaluate Officer Azzarano’s
testimony, and the totality of the circumstances inside
Bennett’s home when Myers was arrested. Clearly, we can
not ignore the totality of the circumstances and focus on an
isolated word in determining what the officer meant when
he testified about a "fight."

The district court attached a great deal of significance to
Azzarano’s observations of Bennett’s demeanor, and the
condition of her home. The officer testified that the house
was "in disarray, especially the upstairs where they had
been[,] . . . also the demeanor of the woman when I found
her she seemed upset and visibly shaken." App. at 104a.
This also falls short of establishing that an assault
occurred in the officer’s presence. The record is devoid of
any suggestion that the level of disarray was excessive to
the point of being probative of a physical altercation. The
most that we can conclude from the officer’s description of

                                13


the state of the apartment is that it was messy. Despite
having every opportunity to do so, the government never
established that the appearance of the home justified a
conclusion that any physical altercation had occurred
there, and we can not supply that testimony for the
government by drawing inferences that stretch the
testimony beyond the parameters of this record. See
Kithcart I, supra.

The Dissent believes that our conclusion that the
evidence only establishes that the residence was"messy,"
rather than evidencing a physical altercation, is an example
of appellate fact finding and reweighing of evidence. See
Dissent at 52. On the contrary, our conclusion is nothing
more than the appropriate discharge of our function as a
reviewing court. It is the officer’s testimony , not his
credibility, that leaves a void in the government’s proof.
Although we must interpret his testimony in the light most
favorable to the government and afford it the benefit of all
reasonable inferences, our appellate function neither allows
us to turn a blind eye to the holes in the government’s
proof, nor engage in the level of speculation that would be
necessary to spackle over them. We do not conclude that
the apartment was not in "disarray." Rather, we conclude
that the government has not satisfied its burden of
establishing that the appearance of the apartment (i.e. the
"disarray") was such as to support a reasonable conclusion
that a physical altercation had occurred there. In realizing
that the government has failed to meet this burden, we do
not "ignore[ ] Officer Azzarano’s daily experience in
investigating domestic disputes and his prior observations
of the condition of residences where violations of
S 2701(a)(3) have occurred." Id. We are merely noting that
Officer Azzarano never compared the appearance of
Bennett’s residence to other residences where he had
investigated claims of domestic abuse. That comparison is
one of the missing links that invites speculation. It should
be furnished by Azzarano’s testimony, not by "appellate fact
finding" as to how Bennett’s residence compared to others
that Azzarano had investigated.

As defense counsel noted in argument at the close of the
evidence at the suppression hearing: "[t]here’s no

                                14


information that anything was broken. There’s no
information that the doors or windows or furniture or
plates or anything else was broken in the house that would
indicate there was some type of a dispute going on." App.
at 130a. Clearly, nothing was broken in the officer’s
presence. To the extent that the district court concluded
that Officer Azzarano’s testimony established a reasonable
belief of a "fight" in the sense of a physical altercation
between Bennett and Myers in the officer’s presence or
otherwise, the court’s finding was clearly erroneous.
Although we defer to the suppression court’s findings, we
do not function as a rubber stamp. See United States v.
Jones, 994 F.2d 1051, 1055 (3d Cir. 1993) (referring to
review of magistrate’s determination of probable cause for
issuance of a search warrant).

Azzarano explained his apprehension upon seeing Myers
hiding behind the doorway as follows:

       [S]omething had happened there or something was
       happening and there would be no reason for him to
       hide from me if, in fact, it was just a simple argument
       between two parties.

App. at 70a. Thus, Azzarano testified that he was
suspicious because hiding behind a door at the approach of
a police officer is inconsistent with a "simple argument."
Azzarano explained that he pointed his gun at the door
Myers was hiding behind "because I believed he had a gun
in his possession based upon the fact that the little girl had
said so." Id. at 71a (emphasis added). He did not base his
conclusion that Myers was armed on anything he heard or
saw after he entered the residence. Azzarano candidly
conceded that he arrested Myers because he was still by
himself in the house and, "to be honest with you,[I] did not
know exactly what was going on. I handcuffed the male and
placed him under arrest." Id. Thus, we can not conclude
that Azzarano had probable cause to arrest for assault
without equating uncertainty and apprehension to probable
cause. See Terry, supra.
Based upon our review of this record we conclude that a
finding that an assault was "ongoing" in the officer’s
presence is clearly erroneous. We therefore hold that the

                                15


government failed to satisfy its burden of establishing that
the police had probable cause to arrest Myers for simple
assault.

2. Domestic Violence

The district court also concluded that Officer Azzarano
was justified in arresting Myers under Pennsylvania’s
domestic violence law, 18 Pa. C.S.A. S 2711. That statute
allows police officers to make a warrantless arrest for
simple assault of a family or household member based
upon probable cause even if the offense was not committed
in the presence of the officer. The statute provides:

       A police officer shall have the same right of arrest
       without a warrant as in a felony whenever he has
       probable cause to believe the defendant has violated
       . . . S 2701 (relating to simple assault) . . . against a
       family or household member although the offense did
       not take place in the presence of the police officer.

18 Pa. C.S.A. S 2711 (2002).

Officer Azzarano’s testimony establishes that he regarded
S 2711 as proscribing a substantive offense called "domestic
abuse," "domestic violence," or "domestic assault."13
However, S 2711 does not define a substantive offense.
Rather, it merely authorizes the police to make a
warrantless arrest for certain specified misdemeanors,
including simple assault, even though the crime was
committed outside the presence of the officer. See
Commonwealth v. Smith, 552 A.2d 292, 295 (Pa. Super.
1988) ("PA. R. CRIM. P.101 [now PA. R. CRIM. P. 502] allows
an arrest without a warrant on probable cause when the
offense is a misdemeanor not committed in the presence of
_________________________________________________________________

13. For example, at one point in his testimony Officer Azzarano testified:
"it seemed to me that a domestic abuse -- that crime had been
committed." App. at 105a (emphasis added). As we noted earlier,
domestic violence is not a crime substantively distinct from simple
assault. See Commonwealth v. Smith, 552 A.2d 292, 295 (Pa. Super.
1988) ("The statute [S 2711] added to the list of offenses which allow
police officers to make warrantless arrests . . .[i]t does not create a new
class of criminal offenses.")

                                16


the officer only when such arrest is specifically authorized
by statute."). However, the crime must be committed in the
context of a domestic relationship, and there must still be
probable cause to arrest for the underlying substantive
offense; in this case, simple assault.

Moreover, the arrest authority conferred by the statute is
limited by the following proviso: "a police officer may not
arrest a person pursuant to this section without first
observing recent physical injury to the victim or other
corroborative evidence." 18 Pa. C.S.A. S 2711.

The district court concluded that there was sufficient
corroboration to sustain an arrest under S 2711. The court
noted:

       When he [Officer Azzarano] arrived upstairs, he
       encountered Cydia Bennett in the hallway. Her voice
       was shaky. She was upset as if she had just been
       involved in an altercation. She denied that anyone else
       was in the house.

       He also observed that the house was in disarray as if
       there had been a struggle and he reasonably concluded
       from Bennett’s demeanor that this was consistent with
       that of a domestic abuse victim reluctant to walk away
       with the police in the presence of the offender.

App. at 167a-168a (emphasis added).

We have already explained why the testimony does not
support a finding that the officer had a reasonable belief
that Myers had been involved in a physical altercation with
Bennett. Likewise, the testimony does not corroborate that
a "struggle occurred or that the officer thought one had."
The officer’s testimony establishes only that he believed
there had been a "dispute" not a "struggle." It is worth
repeating that when the Assistant United States Attorney
attempted to clarify the officer’s testimony by asking him to
be more specific about "fighting" the officer merely
confirmed that he believed that it was not a "normal
discussion. . . ." Id. at 65a. We therefore can not conclude
that the officer believed Bennett and Myers had been
involved in a physical altercation without supplying
testimony for him.

                                17


Moreover, S 2711 only applies when an assault has been
committed "against a family or household member[.]" 18 Pa.
C.S.A. S 2711. Officer Azzarano admitted that he could not
determine whether Myers shared the bedroom with Bennett
or not. He did not see any personal effects belonging to a
male in the bedroom area. See App. at 103a. Accordingly,
there was even less probable cause to arrest for a violation
of S 2711 than for a violation of S 2701 (simple assault).

3. Violation of the Uniform Firearms Act ("VUFA")

The district court reasoned that if Myers did not live in
the house with Bennett he could not lawfully have a gun
there without a license, and therefore he could have been
arrested on a VUFA charge. The court further reasoned
that, on the other hand, if Myers did live with Bennett, he
could have been arrested under S 2711 for domestic
violence even though he could not then have been arrested
for a VUFA. However, the district court’s reasoning ignores
the requirements of the respective statutes.

Under Pennsylvania law, it is a third degree felony for a
person to carry an unlicensed weapon "on or about his
person, except in his place of abode or fixed place of
business[.]"14 18 Pa. C.S.A. S 6106(a)(1). Inasmuch as it is
not a crime to possess a gun inside one’s own residence,
the mere fact of possessing a gun inside a residence can
not supply probable cause to arrest for a VUFA violation.
The district court justified a possible VUFA arrest by
reasoning that if the apartment was not Myers’ residence,
then there was sufficient probable cause to arrest him for
the gun charge. As noted earlier, Azzarano did not know
where Myers lived before arresting him, nor did he testify
about any reasonable belief regarding Myers’ residence. See
App. at 103a. Therefore, the fact that Azzarano did not
know if Myers was being arrested in his own home is fatal
to the reasonableness of the warrantless arrest for a VUFA
_________________________________________________________________

14. Law enforcement officials and certain other individuals authorized by
statute to carry weapons outside the home or business are excepted
from this provision. See 18 Pa. C.S.A. S 6106(b). The statute reduces the
offense to a first degree misdemeanor if the individual has not committed
any other crimes. See id. at S 6106(a)(2).

                                18


charge.15 See Ubiles, 224 F.3d at 217 (mere possession of a
gun on a public street can not supply necessary suspicion
to support even a Terry stop absent reasonable suspicion
that the possession itself is unlawful).

Moreover, the gun could not itself have provided probable
cause to arrest Myers because it was not discovered until
after he was arrested. It is axiomatic that "[a]n arrest is not
justified by what the subsequent search discloses[.]" See
Henry v. United States, 361 U.S. 98, 103 (1959). Myers’ bag
was not searched until after he had been arrested.16 We
therefore hold that Azzarano did not have probable cause to
arrest Myers.

The Dissent argues that "probable cause existed to arrest
Myers before Officer Azzarano crossed the threshold,"
Dissent at 42, and argues that we have failed to explain
how we can conclude that Officer Azzarano’s entry was
justified and still hold that he did not have probable cause
to arrest Myers after the officer was inside the home. Id. at
43. This is based on the Dissent’s belief that holding that
Azzarano’s entry was justified necessarily means that the
entry was supported by both probable cause and exigent
circumstances. Our colleague cites Kirk v. Louisiana, 536
U.S. ___, 122 S. Ct. 2458, (2002) (per curiam), and Fisher
v. Volz, 496 F.2d 333, 339 (3d Cir. 1974), to support that
position. Id. As we note supra at note 9, the Dissent is
mistakenly equating the circumstances that justified
Azzarano’s entry to investigate with the probable cause
required to arrest someone he found inside the home
during that investigation. Our colleague thus conflates two
similar, but distinct inquiries.
_________________________________________________________________

15. The totality of Azzarano’s testimony establishes that Azzarano did not
think the arrest was for a weapons offense at all. Rather, that charge
was determined by the District Attorney’s Charging Unit after the fact.
Although there is nothing wrong with that unit determining the
appropriate offense with which to charge Myers, it is the reasonableness
of Azzarano’s belief that controls our probable cause analysis. See Beck,
379 U.S. at 91.

16. Thus, we do not need to reach the issue of whether an arresting
officer must have probable cause to believe a defendant is not licensed
to carry a firearm. See App. at 172a.

                                19


The Fourth Amendment serves two distinctly separate,
though often intertwined interests. The probable cause
necessary for an arrest requires a showing "that probable
cause exists to believe that the subject [in the case of an
arrest warrant] has committed an offense and thus. . .
primarily serves to protect an individual from an
unreasonable seizure." Steagald v. United States, 451 U.S.
204, 213 (1981). However, the probable cause necessary to
search "safeguards an individual’s interest in the privacy of
his [or her] home and possessions. . . ." Id. The facts in
Steagald were the converse of the facts here, but the
Court’s Fourth Amendment clarification and distinction is
no less applicable to Azzarano’s entry, or Myers’ arrest.

In Steagald, the police had an arrest warrant for a
suspect named "Lyons" and entered Steagald’s home
without a warrant in search of Lyons. While inside
searching for Lyons, they discovered cocaine and Steagald
was subsequently convicted of the illegal possession of that
controlled substance. In reversing the conviction, the Court
held that, although the arrest warrant authorized seizure of
Lyons, it did not allow police to enter Steagald’s residence
unless that entry was supported by probable cause, exigent
circumstances or consent. 451 U.S. at 206. The Court had
noted this distinction in Texas v. Brown, 460 U.S. 730, 747
(1983). There, in discussing the limitations on the"plain
view" doctrine, the Court stated:

       Although our Fourth Amendment cases sometimes
       refer indiscriminately to searches and seizures, there
       are important differences between the two that are
       relevant to the plain view doctrine. The Amendment
       protects two different interests of the citizen-- the
       interest in retaining possession of property and the
       interest in maintaining personal privacy. A seizure
       threatens the former, a search the latter.
460 U.S. at 748 (emphasis added).

The information Azzarano received from the 12 year old
girl standing two feet outside her residence certainly
created a sufficient exigency to allow Azzarano to enter her
home to investigate. It did not, however, authorize him to
arrest anyone he found inside.17 Moreover, as the district
_________________________________________________________________

17. The contrary view advocated by the Dissent would hold that
Azzarano would have been justified in arresting Myers even if he and

                                20


court noted, McKnight consented to the officer’s"intrusion."
In discussing the suppression ruling, the district court
noted that if McKnight did not "direct[ ]" Azzarano to enter
her home, she at the very least consented to it. 18
Accordingly, we can not agree with the Dissent’s attempt to
redefine our inquiry by arguing that "probable cause
existed to arrest Myers before Officer Azzarano crossed the
threshold." Dissent at 42. Our colleague characterizes the
district court’s analysis as being a "well-reasoned
discussion of the pertinent facts and the applicable legal
principles . . .". Id. at 48. However, nowhere does the
district court so much as suggest that Azzarano’s entry
furnished the necessary probable cause to arrest Myers
inside Bennett’s home. In fact, the court’s entire analysis is
to the contrary. Moreover, the prosecution does not even
attempt to uphold this arrest by suggesting that Azzarano
had probable cause to arrest Myers simply because
circumstances justified his entry into Bennett’s home.

Our colleague rests much of his argument that
Azzarano’s initial entry allowed him to arrest Myers on our
opinion in Fisher v. Volz, 496 F.2d 333, 339 (3d Cir. 1974),
and the Supreme Court’s ruling in Kirk v. Louisiana, 536
U.S. ___, 122 S. Ct. 2458, (2002) (per curiam). In Kirk, the
state court had upheld a warrantless arrest inside the
defendant’s home based upon the officers’ reasonable belief
that the defendant had sold drugs, and that delay would
jeopardize the evidence. Police obtained an arrest warrant,
but only after the defendant had been arrested. The state
_________________________________________________________________

Bennett were in the middle of a peaceful dinner, sharing jokes and
laughing, when Azzarano "crossed the threshold simply because
Azzarano’s initial entry was justified."

18. The district court stated, "I find that the officer, in fact, did have an
implied invitation, if not a direction by McKnight to enter the home and
stop a potentially deadly situation." App. at 167a. The defendant does
not focus on that finding on appeal, and we therefore need not decide if
a minor can "consent" to a police entry of her adult parent’s residence
under the Fourth Amendment. We note this aspect of the case only to
ensure that the nature of Azzarano’s Fourth Amendment "intrusion" be
kept in context, and to further explain why that intrusion does not
support any arrest he may have made thereafter.
                                21


court had characterized the defendant’s assertion that no
exigent circumstances justified the warrantless intrusion as
of his home as "irrelevant." 122 S.Ct. at 2459. In a per
curiam opinion that is less than two pages long, the Court
remanded and instructed the state court to determine if
exigent circumstances justified the entry.

We are also not persuaded by our colleague’s citation to
our opinion in Fisher. There, several plaintiffs sued the
Newark Police Department and various police officers based
upon a practice of conducting warrantless searches of the
plaintiffs’ apartments in search of someone who was named
in an arrest warrant. We noted that we had not previously
decided a case "involving entry into a third party dwelling
in reliance on only a valid arrest warrant," and we then
surveyed the decisions of courts that had addressed that
issue. We held that "police may not constitutionally enter
the home of an innocent citizen in search of a suspected
offender for whom they have a valid warrant, even under
exigent circumstances, unless they also have probable
cause to believe that the suspect will be found on the
premises." 496 F.2d at 342-3. Even if Fisher could
somehow be stretched to suggest that police may arrest
someone they find inside a residence based solely upon the
legality of the entry, we would still have to note that we
decided Fisher seven years before the Supreme Court
decided Steagald and clarified the different Fourth
Amendment interests arising from the distinction between
a search on the one hand, and a seizure (i.e. arrest) on the
other.

Given the distinct inquiry and interests implicated when
considering the Fourth Amendment’s protection from illegal
seizures, as opposed to illegal searches, we conclude that,
despite the exigent circumstances that allowed Azzarano to
enter this residence, he did not have probable cause to
arrest Myers once he got inside.19 Accordingly, the evidence
_________________________________________________________________

19. See also United States v. Sheik-Abdi, 37 F.3d 1240 (7th Cir. 1994).
The court in Sheik-Abdi distinguished between exigent circumstances
that would justify a warrantless entry into a home, and probable cause
needed for arrest. See id. at 1246. Though the facts are arguably
distinguishable from the circumstances of Azzarano’s entry (paramedics

                                22


that was seized pursuant to that arrest should have been
suppressed.20 Furthermore, even if we assume arguendo
that the arrest was lawful, we would still find that the gun
should have been suppressed as the subsequent search
was not incident to the arrest.

B. The Search Was Not Incident To An Arrest

"[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). This exception to
the general warrant requirement arises from a common
_________________________________________________________________

were summoned to the arrestee’s home when his wife called an
ambulance after he passed out, and they in turn called police when
Sheik-Abdi became belligerent and aggressive), the analysis is relevant
because it clearly distinguishes between the privacy interests presented
by the Fourth Amendment’s search warrant requirement, and the
requirement of probable cause to arrest. The court stated:

        Once the veil of the home has been legally pierced, we see no need
       for police officers to turn a blind eye to crime, so long as the arrest
       is otherwise effected in compliance with the constitutional
       requirement of probable cause (and other relevant state law).

Id. (emphasis added) (parenthetical in original). See also Parkhurst v.
Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (concern for the safety of others
can justify warrantless entry into private residence).

20. The Dissent suggests that by insisting that the prosecutor elicit
sufficient evidence to support a finding of probable cause for a
warrantless arrest, we are confusing the "quantum of evidence required
to demonstrate probable cause for an arrest with the heavy burden
placed on the Government to present sufficient evidence of each element
of a crime that persuades the trier of fact of the guilt of the defendant
beyond a reasonable doubt." Dissent at 50, citing Draper v. United States
358 U.S. 307, 312 (1959). However, we do not insist that the government
prove the elements of the various crimes that Myers could theoretically
have been arrested for. We do, however, insist that the government
satisfy its burden of establishing a reasonable belief that Myers
assaulted Bennett in the officer’s presence inside this private residence,
or a reasonable belief that Myers had committed one of the other crimes
that the district court concluded he could have been arrested for.

                                23


sense acknowledgment of the dynamics of an arrest, the
right of privacy, and the need to allow police officers to
protect themselves. It is a carefully tailored and narrowly
crafted license that addresses the tension between the need
for effective law enforcement on the one hand, and
constitutionally guaranteed liberty on the other.
Accordingly, the scope of such a search must be"strictly
tied to and justified by the circumstances which rendered
its initiation permissible." Id. at 762 (internal quotations
omitted). A search incident to arrest is therefore only
"reasonable" within the meaning of the Fourth Amendment
when it is confined to, and controlled by, the circumstances
that warrant the intrusion.

Thus, although it might appear "reasonable" for an
arresting officer to conduct a search that is as broad as
possible following an arrest, the Constitution does not allow
it. As the Supreme Court explained in Chimel:
       It is argued . . . that it is reasonable to search a man’s
       house when he is arrested in it. But that argument is
       founded on little more than a subjective view regarding
       the acceptability of certain sorts of police conduct, and
       not on considerations relevant to Fourth Amendment
       interests. Under such an unconfined analysis, Fourth
       Amendment protection in this area would approach the
       evaporation point. It is not easy to explain why, for
       instance, it is less subjectively reasonable to search a
       man’s house when he is arrested on his front lawn--or
       just down the street--than it is when he happens to be
       in the house at the time of arrest.

Id. at 764-65 (internal quotation marks omitted).

Although this constitutional principle is now well
established, its application has been uneven, and
determining the contours of "reason" within the confines of
Fourth Amendment privacy interests has led to anything
but consistent results.

At the outset, we note that a search incident to arrest
has both geographic and temporal limitations:

       A legitimate search incident to arrest is limited to the
       arrestee’s person and to the area within his immediate

                                24


       control, meaning the area from which he might gain
       possession of a weapon or destructible evidence.

United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir.
1996) (internal quotation marks omitted), citing Chimel, 395
U.S. at 763. In United States v. Abdul-Saboor , 85 F.3d 664
(D.C. Cir. 1996), the D.C. Circuit Court of Appeals noted
that, in determining if an object is "conceivably accessible
to the arrestee," we are to assume that "he was neither an
acrobat [nor] a Houdini." Abdul-Saboor , 85 F.3d at 669
(D.C. Cir. 1996), citing United States v. Lyons , 706 F.2d 321
(D.C. Cir. 1983). We can safely assume that Myers was
neither. Yet, inasmuch as he was handcuffed behind his
back while lying face down on the floor, and "covered" by
two armed police officers when Azzarano returned and
searched the bag, Myers would have had to possess
qualities of both if we are to conclude that he had access to
the bag at that point.

The court in Abdul-Saboor actually upheld the search
there citing our analysis in Virgin Islands v. Rasool, 657
F.2d 582 (3d Cir. 1981). However, the circumstances that
caused the court to uphold the search are quite different
from the circumstances here.

In Abdul-Saboor, the arrestee attempted to retrieve a
loaded shotgun after police entered his room, and he
"specifically requested entry to the area to be searched."
Abdul Saboor, 85 F.3d at 670. Moreover, a second gun and
magazine had been discovered in his apartment before the
search. In upholding the search, the court in Abdul-Saboor
took pains to distinguish its earlier holding in United States
v. Lyons, 706 F.2d 321 (D.C. Cir. 1983), wherein the court
had reversed the district court’s order denying suppression.
The Abdul-Saboor court noted that in Lyons, the arrestee
was handcuffed, the closet that was searched was several
yards away, six police officers were in the room with Lyons,
and no weapons had yet been uncovered. See Abdul-Saboor,
85 F.3d at 670, citing Lyons, 706 F.2d at 330-31. Moreover,
Lyons never made any attempt to reach the closet and
Lyons had collapsed and been revived before the search
began. See Abdul-Saboor, 85 F.3d at 670, citing Lyons, 706
F.2d at 324.

                                25


In contrast, the arrestee in Abdul-Saboor indicated that
he would reach for a weapon if given the opportunity, and
he was not suffering from any "infirmity that would impede
his physical ability." Abdul-Saboor, 85 F.3d at 670.
Therefore, the court in Abdul-Saboor was persuaded by the
arresting officers’ concern over Abdul-Saboor’s ability to
grab concealed weapons, notwithstanding the fact that he
was physically restrained.

Significantly, the Abdul-Saboor court noted:

       Absent 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, we agree with our sister circuits that a
       search of the area where the arrest occurred in
       circumstances such as this case presents is a search
       incident to arrest.21

Id. (emphasis added). The court then cited numerous cases
to support that proposition. However, the cases cited by
Abdul-Saboor, as well as those cited by our dissenting
colleague, either rely upon the Supreme Court’s analysis of
the proper scope of a vehicular search in New York v.
Belton, 453 U.S. 454 (1981), see United States v. Palumbo,
735 F.2d 1095, 1096-97 (8th Cir. 1984) and United States
v. Queen, 847 F.2d 346, 352-54 (7th Cir. 1988), 22 or
directly involve vehicle searches, see United States v.
Cotton, 751 F.2d 1146, 1147-48 (10th Cir. 1985); and
Virgin Islands v. Rasool, 657 F.2d 582, 585, 588-89 (3rd
Cir. 1981). As we shall discuss, vehicle searches are not
analogous to the search here, and we will take this
opportunity to clarify the difference between the two
situations.
_________________________________________________________________

21. As we shall see, circumstances surrounding Myers’ search present
just such an "objective basis."

22. The court in Queen cites numerous cases that address the issue of
whether a search was properly limited to the area of the arrestee’s
immediate control, including Lyons. See Queen , 847 F.2d at 354. The
other cases cited in Queen concern vehicular searches (including Belton),
as well as several non-vehicular searches, and the Queen court does not
distinguish between those two situations.

                                26


The Supreme Court addressed the scope of a vehicular
search in New York v. Belton, supra. There, a state trooper
stopped a speeding car for a traffic citation. Upon
approaching the car, the officer noticed four male
occupants and also smelled the odor of burnt marijuana.
The officer also saw an envelope marked "Supergold" --
which he associated with marijuana -- on the floor of the
car. Belton, 453 U.S. at 456. He therefore ordered all of the
men out of the car and patted each one down after
separating them into four separate areas on the highway.
He then returned to their car, retrieved the envelope
marked "Supergold," and discovered that it contained
marijuana. He gave each of the arrestees the warnings
required under Miranda v. Arizona, 384 U.S. 436 (1966),
and then searched the passenger compartment of the car.
The search revealed a black leather jacket belonging to
Belton on the back seat. The officer unzipped one of the
pockets and discovered cocaine inside. Id.

Belton moved to suppress that evidence arguing that it
was the fruit of an illegal search. The Supreme Court
granted certiorari defining the issue as follows:

       When the occupant of an automobile is subjected to a
       lawful custodial arrest, does the constitutionally
       permissible scope of a search incident to his arrest
       include the passenger compartment of the automobile
       in which he was riding? That is the question at issue in
       the present case.

Id. at 455 (emphasis added).

The Court began its analysis by restating the parameters
of Terry v. Ohio and Chimel v. California, and reiterating
that "the scope of [a] search must be strictly tied to and
justified by the circumstances which rendered its initiation
permissible." Id. (internal quotation marks omitted). The
Belton Court noted that Chimel permitted a limited search
to prevent an arrestee from gaining weapons or destroying
evidence, but concluded that that justification did not allow
the police to routinely search an arrestee’s room or"all of
the desk drawers or other closed or concealed areas of that
room itself." Id. at 458. (Internal quotation marks omitted).
The Court observed that, although the principle derived

                                27


from Chimel and Terry was therefore quite straightforward,
its application had posed difficulties. See id.

The Court noted, that despite its efforts, "no
straightforward rule has emerged from the litigated cases
respecting the question involved here -- the question of a
proper scope of a search of the interior of an automobile
incident to a lawful custodial arrest of its occupants." Id. at
459 (emphasis added). The Belton Court declared that it
intended to address these difficulties by establishing a clear
set of principles to govern such searches in the context of
a warrantless arrest in order to provide police officers with
a set of rules which would allow them "to reach a correct
determination beforehand as to whether an invasion of
privacy is justified in the interest of law enforcement." Id. at
458 (quoting La Fave, "Case-By-Case Adjudication" versus
"Standardized Procedures": The Robison Dilemma, 1974 S.
Ct. Rev. 127, 142).

The Court declared:

       While the Chimel case established that a search
       incident to an arrest may not stray beyond the area
       within the immediate control of the arrestee, courts
       have found no workable definition of the area within
       the immediate control of the arrestee when that area
       arguably includes the interior of an automobile and the
       arrestee is its recent occupant. Our reading of the
       cases suggests the generalization that articles inside
       the relatively narrow compass of the passenger
       compartment of an automobile are in fact generally,
       even if not inevitably, within the area into which an
       arrestee might reach in order to grab a weapon or
       evidentiary ite[m]. In order to establish a workable rule
       this category of cases requires, we read Chimel’s
       definition of the limits of the area that may be searched
       in light of that generalization. Accordingly, we hold that
       when a policeman has made a lawful custodial arrest of
       the occupant of an automobile, he may, as a
       contemporaneous incident of that arrest, search the
       passenger compartment of that automobile.

Belton, 453 U.S. at 460 (brackets and emphasis in original)
(note and internal quotation marks omitted). In a further

                                28


attempt to clarify that it was only applying the rule of
Chimel to the unique circumstances of a post-arrest
warrantless search of an automobile, the Court stated, "our
holding today does no more than determine the meaning of
Chimel’s principles in this particular and problematic
context. It in no way alters the fundamental principles
established in the Chimel case regarding the basic scope of
searches incident to lawful custodial arrest." Id. at 460 n.3.

In applying its analysis to the facts before it, the Court
concluded that since the search of Belton’s jacket "followed
immediately" after the arrest, and since the jacket "was
located inside the passenger compartment of the car . . .
the jacket was thus within the reach of the area which we
have concluded was ‘within the arrestee’s immediate
control’ within the meaning of the Chimel case.’ " Id. at 462.
Accordingly, the Court held that the seizure was lawful.
We applied Belton in Rasool, supra. There, the police also
stopped an automobile. They then removed the defendant
from the car and handcuffed him. After the defendant was
handcuffed, the police searched the inside of the car and
found a bag on the back seat which they removed and
searched. Inside, they found a gun. The district court
suppressed that evidence, but we later reversed. 23 We
defined the issue pertaining to the seizure as follows:
"whether the police had probable cause to search the
vehicle as distinct from any container found within[it]."
Rasool, 657 F.2d at 585. We ultimately held that the police
had probable cause for the search.

We found in Rasool that the Belton court had been
careful to note that its holding merely applied the teachings
of Chimel to the special circumstances presented by an
automobile search. See id. at 587, citing Belton, 453 U.S. at
460. We emphasized that the Court characterized its
holding in Belton as "doing no more than determin(ing) the
meaning of Chimel’s principles in this particular and
problematic content. It in no way alters the fundamental
principles established in . . . Chimel . . . ." Rasool, 657 F.2d
at 588 (emphasis added), quoting Belton, 453 U.S. at 460
n.3.
_________________________________________________________________

23. The district court ruled before the Supreme Court decided Belton.

                                29


Thus, as Judge Wellford points out in his dissent in
Davis v. Robbs, 794 F.2d 1129 (6th Cir. 1986), "Belton was
a case concerning the application of the search incident to
arrest exception to the search of an automobile." Davis, 794
F.2d at 1132 n.2 (Wellford, J., dissenting). It does not apply
in the context of a search inside of a private home where
"Fourth Amendment rights are preeminent. . . ." Id. at
1132. The majority in Davis did affirm a search incident to
arrest although the arrestee was handcuffed and placed in
a squad car prior to the seizure of a rifle in his house.
However, it is clear that the Davis majority strayed beyond
the parameters that the Supreme Court tried to erect in
Belton. We are neither persuaded by the majority’s analysis
in Davis nor bound by its holding.

In United States v. Cotton, 751 F.2d 1146 (10th Cir.
1985), a car was searched even though the arrestees had
been handcuffed and removed from the car prior to the
search. However, since Cotton involved an automobile, it
was therefore governed by the special rules which the
Supreme Court set forth in Belton. The court in Cotton was
careful to note that important consideration. The court
stated:

       We therefore believe that a legal analysis of a seizure of
       an object found within an automobile pursuant to a
       search incident to a lawful arrest, must of necessity
       involve special considerations that set it apart from the
       general law regarding searches incident to lawful
       arrest.

Cotton, 751 F.2d at 1148. The court made that statement
after citing Chimel and Belton and noting that Belton was a
case "in which a search incident to arrest involving
automobiles was directly at issue." Id. at 1148.

The Dissent points to United States v. Silva, 745 F.2d
840 (4th Cir. 1984), a non-vehicular case. See Dissent at
55. There, the Court of Appeals for the Fourth Circuit did
uphold the seizure of a zippered bag although the arrestee
-- who was handcuffed behind his back -- was sitting on
a bed in a motel room surrounded by armed FBI agents.
The court explained its reasoning as follows: "we are of the
opinion that any objections Silva may have to the validity of

                                30


this search and seizure are disposed of by this court’s
recent en banc opinions in United States v. Litman, 739
F.2d 137 (4th Cir. 1984) and United States v. Porter, 738
F.2d 622 (4th Cir. 1984)." Silva, 745 F.2d at 847. The court
noted that those cases relied upon Belton in holding that a
lawful custodial arrest was sufficient to justify a
contemporaneous warrantless search of the person arrested
as well as the "immediately surrounding area[.]" Id. Since
there was "no dispute that the zippered bag [that was
seized from Silva] was in the immediately surrounding area
and that it was searched contemporaneously with the
arrest," the court concluded that the trial court did not err
in denying the motion to suppress. Id. The Silva court never
discussed whether the arresting officers actually believed
that the bag was accessible or under the arrestee’s control.
It merely relied upon a mechanical application of the rule in
Belton, even though that rule did not apply to the situation
before it. Moreover, the authority relied upon -- Litman and
Porter -- do not make the analysis in Silva any more
persuasive.

In Litman, the court upheld the seizure of a shoulder bag
from the arrestee in a hotel room. However, at the time of
the seizure, the arrestee was not handcuffed. The arresting
officers had pointed their weapons at him while he was
being frisked, but one of the agents then holstered his
pistol and searched the arrestee’s bags. See Litman, 739
F.2d at 137. Therefore, the situation in Litman was different
as the arrestee there was not physically restrained. Myers
was physically restrained and incapacitated. Further, the
Litman court concluded that Belton controlled its analysis
without even acknowledging that Belton was an automobile
search. The Litman court therefore read far more into
Belton than the Supreme Court intended. In doing so, it
ignored the language of the very precedent it sought to
apply.

In Porter, supra, the court affirmed the denial of a motion
to suppress a carry-on bag that had been seized"incident
to an arrest" at an airport. The court relied upon Belton and
declared that the Supreme Court had there "established a
‘bright-line’ rule that a lawful custodial arrest justifies a
contemporaneous search without a warrant of the person

                                31


arrested in the immediately surrounding area." Porter, 738
F.2d at 627 (citations omitted), citing Belton , 453 U.S. at
463 (Brennan, J., dissenting). Again, the court never even
mentioned the narrowing language in Belton, nor the
Court’s attempt to limit its holding there to the problematic
area of applying Chimel to car searches incident to the
arrest of an occupant of the car.

United States v. Palumbo, 735 F.2d 1095 (8th Cir. 1984),
is no more persuasive. See Dissent at 55. There, the Eighth
Circuit affirmed the district court’s denial of the defendant’s
motion to suppress evidence seized during a search that
followed a warrantless arrest in a hotel room. That evidence
was "hidden behind a dresser drawer . . . ." Palumbo, 735
F.2d at 1097. The defendant argued that it was therefore
"inaccessible to him because he was handcuffed in the
presence of several officers." Id.

However, it was not at all clear that the defendant was as
incapacitated as he argued. The Court of Appeals noted
that the arresting officer’s testimony at the suppression
hearing "indicates that [the arrestee] was not handcuffed
when the officers retrieved the cocaine behind the drawer
within an arm’s reach from where Palumbo sat." Id. at
1097. The court then ventured further stating:
"accessibility, as a practical matter, is not the benchmark."
Id. Rather, the court concluded that the issue was whether
the seized item "was in the area within the immediate
control of the arrestee within the meaning of Chimel v.
California." Id. The court cited Belton and explained that
"[t]his rule defines the area generally which may be
searched, and is not constrained because the arrestee is
unlikely at the time of the arrest to actually reach into that
area." Id., citing Belton, 453 U.S. at 459-60. However, the
court’s citation to Belton refers to the portion of Belton
wherein the Court was attempting to apply the general rule
of Chimel to the specific circumstance of an automobile
search. Belton has no application to Palumbo’s hotel room
nor to the residence in which Myers was searched.

Finally, United States v. Queen, 847 F.2d 346 (7th Cir.
1988), cites numerous cases in upholding a search incident
to an arrest where the arrestee was also handcuffed behind
his back inside of a residence. See Dissent at 55. There

                                32


again, however, authority is cited by the court with no
discussion of the distinction between those cases involving
seizures from vehicles on the one hand,24 and non-vehicular
searches on the other.25 See Queen, 847 F.2d at 354.

The court’s discussion in Queen is, however, helpful to
resolving some of the inconsistencies that have evolved in
applying the rule of Chimel beyond the vehicular context
described in Belton. In Queen, agents had a warrant for the
defendant’s arrest. They knew that he was a convicted felon
who had not surrendered pursuant to a court order. The
police also suspected that Queen was armed and
dangerous. The police executed the warrant at his
residence after surrounding it. They searched the house
where an agent observed a pile of clothes and a blanket in
an open closet. Suspecting Queen to be hiding underneath,
the agent immediately drew his gun and ordered Queen to
come out with his hands up. After initially refusing to
comply with the order, Queen finally emerged from beneath
the pile. The agents patted him down while keeping their
guns trained on him. They then handcuffed him in an area
_________________________________________________________________

24. New York v. Belton, 453 U.S. 454 (1981); United States v. Hatfield,
815 F.2d 1068, 1071 (6th Cir. 1987); Davis v. Robbs, 794 F.2d 1129 (6th
Cir. 1986); United States v. Cotton, 751 F.2d 1146 (10th Cir. 1985);
Virgin Islands v. Rasool, 657 F.2d 582 (3d Cir. 1981).

25. United States v. Palumbo, 735 F.2d 1095 (8th Cir. 1984); United
States v. Roper, 681 F.2d 1354 (11th Cir. 1982); United States v.
Fleming, 677 F.2d 602 (7th Cir. 1982); United States v. Garcia, 605 F.2d
349, 352 (7th Cir. 1979). Fleming is an anomaly. That case involved a
search of luggage incident to a warrantless arrest at an airport. The
police had reliable information (much of which was independently
confirmed) that the arrestee would be arriving with heroin. Police
watched the arrestee as she claimed her luggage from the baggage area.
She dropped her luggage when the police approached and identified
themselves. She then became hysterical, and exclaimed, " ‘I knew I
shouldn’t have done this,’ and proceeded to urinate on her clothing." 605
F.2d at 352. Officers then retrieved the luggage from the airport doorway
where she had dropped it, and actually brought it to"within one foot of
[the arrestee’s] new position" before opening the bags. She "was not
handcuffed or otherwise restrained during this time." Id. Fleming
distinguished that situation from the situation in United States v.
Chadwick, 433 U.S. 1 (1977), and ruled that the search was reasonable
under Chimel.

                                33


that was approximately three feet from the open closet
where he had been hiding. See id. at 349. After he was
handcuffed, one of the agents inspected the area around
the blanket and found an uncovered .357 magnum revolver
which was loaded with six bullets. See id. at 350.

Queen moved to suppress the fruits of that search
contending that it exceeded the permissible scope of
Chimel. He argued that "it was inconceivable that, with his
hands cuffed behind his back, he could have twisted away
from two armed agents and dived past a third to grab the
handgun lying on the closet floor." Id. at 353. The
government responded by arguing that the agents
"reasonably believed that any weapon on the floor of the
closet was within the grabbing range of Mr. Queen. .. .
[and that] policemen do not need to presume, that, in a
stressful situation like the arrest here, the defendant will
act in a wholly rational manner." Id. The court accepted the
government’s argument noting that, although Queen was
"neither an acrobat [nor] a Houdini[,]" the nature of the
circumstances that the officers were facing counseled
against requiring "punctilious judgments regarding what is
within and what is just beyond the arrestee’s grasp. Thus,
searches have sometimes been upheld even when hindsight
might suggest that the likelihood of the defendant reaching
area in question was slight." Id. (internal citations and
quotations omitted).

This concern over using "hindsight" to punctiliously
overrule an officer’s split-second judgment explains courts’
justifiable reluctance to suppress a weapon where the
objective circumstances suggest that the officer’s actions at
the time of the arrest reflect the officer’s belief that an
arrestee may gain access to the weapon. As the Supreme
Court noted in United States v. Chadwick, 433 U.S. 1
(1977):

       The potential dangers lurking in all custodial arrests
       make warrantless searches of items within the
       immediate control area reasonable without requiring
       the arresting officer to calculate the probability that
       weapons or destructible evidence may be involved.

Chadwick, 433 U.S. at 14-15 (internal quotation omitted).

                                34


Thus, 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. This explains the result in Queen and further
explains why the court in Abdul-Saboor stated that it would
uphold such seizures as being incident to arrest under
Chimel, "absent some objective basis [to conclude] that the
arresting officer had no reason to fear either the arrestee or
the environment in which the arrest unfolded." Abdul-
Saboor, 85 F.2d at 670 (emphasis added).26

Of course here, Officer Azzarano’s actions provide just
such an "objective basis" to conclude that he was not
concerned with Myers reaching into the bag. Officer
Azzarano handcuffed Myers’ hands behind his back while
Myers was face-down on the floor. The officer then
immediately conducted a brief search that included
"frisking" Myers’ waistband.27 See App. at 72a. However,
Azzarano then left Myers and went downstairs to speak
with Bennett. During that interval, Myers remained
"covered" by two backup officers who arrived immediately
after Azzarano had arrested and handcuffed Myers. The bag
was approximately three feet away from Myers and zipped
closed. Obviously, if the officer had been worried at the time
of the arrest that Myers could reach the black bag though
handcuffed and covered by two police officers, he would
have searched the black bag when he searched Myers’
waistband. Instead, he felt secure enough to leave Myers
and go downstairs to speak with Bennett. Indeed, Azzarano
did not state that he opened the bag because he was
concerned that Myers had access to it. He testified that he
_________________________________________________________________

26. In explaining the inconsistent application of Chimel, we do not mean
to suggest that a reviewing court must be bound by the officer’s on-the-
scene conclusion about the necessity of a search regardless of the
environment where the arrest occurs or the extent to which an arrestee
is actually incapacitated and under police control.

27. As noted earlier, the arrest was effectuated when Myers was ordered
to the ground at gunpoint and handcuffed. If the arrest had been valid,
the initial frisk of Myers’ waistband could clearly be characterized as a
search incident to an arrest under Chimel.

                                35


was concerned about possibly leaving a weapon behind in
a home with Bennett and her minor child. This is a far cry
from Chimel’s license to search for a weapon that could be
used to effectuate an escape, injure the arresting officer(s)
or destroy evidence. Had he searched the bag along with
the waistband before going downstairs, we would have a
different set of circumstances to consider against the
teachings of Chimel and its progeny. However, he did go
downstairs and his explanation for seizing the bag leaves
us confident that the seizure was not "reasonable" within
the meaning of the Fourth Amendment because it was not
incident to Myers’ arrest.

We agree with the district court’s conclusion that the bag
was "within [Myers’] immediate control and possession
when Azzarano first observed him." App. at 171a (emphasis
added). The district court also stated that "at this moment
[referring to when Azzarano first saw Myers], Azzarano still
felt that someone else could be in the home and his
primary purpose and concern was to obtain the weapon
and to get it out of the house where Bennett and the
children lived." Id. (emphasis added).

That is when Myers was arrested, and that is when
Myers’ waistband was searched. However, that is not when
the bag was searched. The search of the bag came
sometime later, after Azzarano left Myers and went
downstairs, leaving Myers restrained, physically
incapacitated, and under the control of two armed police
officers.

Moreover, the district court’s analysis conflates two
separate and independent justifications for searching
incident to an arrest. In addition to conducting a search for
the protection of the officer or to prevent the destruction of
evidence, the police may also conduct a protective"sweep"
under certain circumstances when they fear an accomplice
may be lurking nearby. See Sharrar v. Felsing , 128 F.3d
810 (3d Cir. 1997). Nothing on this record suggests that
Azzarano was concerned that any confederate was lurking
about.

Moreover, Azzarano’s testimony establishes that he was
not initially concerned about the bag even when he went

                                36


back upstairs and returned to Myers. He did not return to
search the bag. Azzarano testified: "I went back upstairs to
find out what this -- what the defendant’s name actually
was, because he had, in fact, given a fake name." App. at
76a (emphasis added). Azzarano only decided to open the
bag because Myers appeared to look at it in a manner that
suggested he did not want the police to see what was
inside. He stated: "[t]he defendant’s demeanor led me to
believe that there was something in the bag that he didn’t
want me to see. At that point, I opened the bag, and
discovered this handgun." Id. at 77a. Moreover, since he
returned to Myers to question him about his name, not to
search the bag, the record establishes that Azzarano’s
concern for the danger the gun posed arose only after he
opened the bag. Therefore, this search can not be sustained
as a search incident to an arrest. See Chimel , 395 U.S. at
762-63.28

III.

Before concluding we pause to amplify a point we made
at the beginning of our discussion. We briefly mentioned
the constitutional imperative that we not overlook our
institutional role when reviewing police conduct and
applying the exclusionary rule. See Mapp v. Ohio , 367 U.S.
643 (1961). Given our colleague’s concern, that point merits
amplification. We are, of course, mindful of the exceedingly
difficult nature of the split-second decisions police officers
must make on a daily basis. The Dissent scoldingly
cautions against "[a]ppellate judges [who] spend their days
cloistered in secure buildings guarded by United States
Marshals, protected from strangers and the public by
electronically controlled doors and elevators[,]" reviewing
_________________________________________________________________

28. The Dissent notes that "Ms. Bennett’s residence was not searched.
No property of hers was seized. She was not arrested or charged with
any crime." Dissent at 44. That is, of course, irrelevant. Myers clearly
had a reasonable expectation of privacy while in Bennett’s home and
neither the Government, nor the district court suggests otherwise. See
Minnesota v. Olson, 495 U.S. 91 (1990). Accordingly the fact that his
property rather than his host’s was seized is as irrelevant as the fact
that he was in someone else’s home when his own reasonable
expectation of privacy was violated and he was seized.

                                37


arrest decisions of trained police officers. Dissent at 53. As
our dissenting colleague reminds us, "[w]e have no
expertise in the investigation of volatile domestic
altercations. We have no first-hand experience regarding
the threat of violence presented by persons involved in a
domestic dispute when a police officer attempts to act as a
peacemaker in calming their fury." Id.

Although such sentiments have a great deal of popular
appeal, we must never allow our lack of police training to
seduce us into abdicating our judicial function for the sake
of preserving evidence of criminal activity. It is obvious that
police officers do not enjoy the secure and contemplative
atmosphere afforded judges, and judges do not patrol city
streets. It is just as obvious that judges are not trained in
policing. Nevertheless, the Constitution mandates that the
ultimate determination of the legality of an arrest be made
by judges, not by police officers.

Though a concerned public may not always appreciate it,
the Supreme Court has explained that it can hardly be
otherwise under the Constitution: "If subjective good faith
[of the arresting officer] alone were the test, the protections
of the Fourth Amendment would evaporate, and the people
would be secure in their persons, houses, . . . and effects,
only in the discretion of the police." Beck , 379 U.S. at 97
(internal quotation marks omitted). "[T]here is nothing new
in the realization that the Constitution sometimes insulates
the criminality of a few in order to protect the privacy of us
all." Arizona v. Hicks, 480 U.S. 321, 329. Thus, our respect
for, and appreciation of, the difficulties and dangers of law
enforcement do not justify surrendering our constitutional
duties to police officers.

More than half a century ago, the Supreme Court
warned:

       The point of the Fourth Amendment, which often is not
       grasped by zealous officers, is not that it denies law
       enforcement the support of the usual inferences which
       reasonable men draw from evidence. Its protection
       consists in requiring that those inferences be drawn by
       a neutral and detached magistrate instead of being
       judged by the officer engaged in the often competitive
       enterprise of ferreting out crime.

                                38


Johnson v. United States, 333 U.S. 10, 13-14 (1948).

Despite the understandable concerns voiced in dissent by
our esteemed and distinguished colleague, we do not
believe that we can uphold this arrest or search without
doing violence to the Fourth Amendment guarantees that
we are sworn to uphold. As we stated in Fisher , "effective
law enforcement . . . can only be maintained by a respect
for the law." 496 U.S. at 342.

IV. Conclusion

For all the reasons set forth above, we conclude that the
district court erred in denying the defendant’s motion to
suppress physical evidence. Therefore, we will reverse the
order of the district court denying the motion to suppress
and remand for further proceedings consistent with this
opinion.29
_________________________________________________________________

29. Myers also argues that 18 U.S.C. S 922(g)(1) is unconstitutional as it
improperly proscribes purely intrastate possession of a firearm and
therefore lacks the requisite nexus to interstate commerce. However, that
argument is clearly foreclosed by our holding in United States v.
Singletary, 268 F.3d 196 (3d Cir. 2001), and we therefore reject it
without discussion.
                                39


ALARCON, Senior Circuit Judge, Dissenting:

I respectfully dissent. I cannot join the Majority’s opinion
for several reasons:

First. The Majority has failed to discuss the dispositive
issue raised by Myers in this appeal: Whether "the
warrantless entry to 3203-B Henry Avenue was conducted
without probable cause to believe a crime had been
committed and without exigent circumstances." (emphasis
added). Instead, the Majority states summarily:"Although
we conclude that Officer Azzarano’s initial entry into the
residence was justified, we hold there was no probable
cause to arrest Myers." Maj. Op. at 5. As I will explain later,
this conclusion ignores recent Supreme Court authority
and is inconsistent with the law of this circuit which holds
that a warrantless entry violates the Fourth Amendment
unless the police have probable cause even in the presence
of exigent circumstances.

Second. I would affirm the district court’s opinion
because the record shows that, prior to entering, Officer
Azzarano had probable cause to believe that a person
within the residence was armed with a weapon and fighting
with a resident.

Third. Exigent circumstances justified the warrantless
entry to protect Ms. Bennett from death or serious injury
from a man armed with a gun.

Fourth. The record demonstrates that the search of
Myers’s backpack was incident to a lawful arrest.

I

In reviewing a district court’s findings of historical facts,
we must "give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers."
Ornelas v. United States, 517 U.S. 690, 699 (1996). We
must also construe the record in the light most favorable to
the Government. United States v. Lawes, 292 F.3d 123, 126
(2d Cir. 2002); United States v. Runyan, 290 F.3d 223, 234
(5th Cir. 2002); United States v. Cook, 277 F.3d 82, 84 (1st
Cir. 2002).
                                40


The "totality of the circumstances" informs a probable
cause determination. Illinois v. Gates, 462 U.S. 213, 230-31
(1983). In evaluating the totality of the circumstances in a
given case, a court may not consider each fact in isolation.
United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 750-
51 (2002). In United States v. Arvizu, the Court rejected the
Ninth Circuit’s "divide and conquer analysis" that
considered each circumstance separately to determine
whether it was susceptible of an innocent explanation. Id.
at 751.

The Majority has concluded, in alternative analyses, that
Officer Azzarano did not have probable cause to arrest
Myers, and "even if we assume arguendo that the arrest
was lawful, we would still find that the gun should have
been suppressed as the subsequent search was not
incident to the arrest." Maj. Op. at 23. Clearly, at least one
of these conflicting conclusions, if not the entire Majority
opinion, is dictum.1

My review of the record has persuaded me that the
district court did not clearly err in concluding that Officer
Azzarano was aware of "reasonably trustworthy information
. . . sufficient to warrant a prudent man in believing that
[Myers] had committed or was committing an offense." Beck
v. Ohio, 379 U.S. 89, 91 (1964). Because the reasonably
trustworthy information obtained by Officer Azzarano from
Diane McKnight was sufficient to warrant him to believe
that an armed man was presently threatening the safety of
his victim, the officer’s entry into the residence was
supported by probable cause and exigent circumstances.
His observations within the residence corroborated the
information that he received from Ms. McKnight. The record
also demonstrates that the district court did not err in
_________________________________________________________________

1. "Indeed, any time the Court relies on alternative reasoning, both
analyses are not necessary to the decision of the case, and are therefore
dicta. Thus, by adding additional reasons for its decision, the Court is
effectively undermining what precedential value the opinion may have."
Matthew F. Weil & William C. Rooklidge, Stare Un-Decisis: The Sometimes
Rough Treatment of Precedent in Federal Circuit Decision-Making, 80 J.
Pat. & Trademark Off. Soc’y 791, 795 (1998) (emphasis added) (internal
quotation marks and citation omitted).

                                41


concluding that the search of Myers’s backpack was
incident to a lawful arrest.

II

Viewed in the light most favorable to the Government, the
record demonstrates that Officer Azzarano received a radio
dispatch that "a person with a gun" was involved in "a
disturbance with a female companion" at 3202 Henry
Avenue, Apartment B. When he received the assignment to
go to that location, Officer Azzarano was a block and a half
or two blocks away. He was so close to the scene that he
did not have to activate his emergency lights and siren. At
3202 Henry Avenue, Officer Azzarano observed an
adolescent female, Diane McKnight, standing approximately
two feet outside the doorway to Apartment B. Ms. McKnight
was the source of the 911 call. She is the daughter of the
female inside the apartment. She is the oldest of six
children. Ms. McKnight appeared to be frightened.

Ms. McKnight informed Officer Azzarano that "her mom
and her mom’s boyfriend were in the house arguing and
having a fight and that her mom’s boyfriend was armed
with a gun." Ms. McKnight’s statement and her distraught
demeanor provided Officer Azzarano with reliable
information that her mother’s boyfriend was threatening
her safety while armed with a gun. "[W]here an informant
is not a paid, unknown tipster but instead an identified
eyewitness to a crime who voluntarily reports his
observations to the police, the trustworthiness of such a
person may be presumed." Commonwealth v. Weidenmoyer,
539 A. 2d 1295 (Pa. 1988). See also United States v.
Valentine, 232 F.3d 350, 354-55 (3d Cir. 2001) (discussing
informant reliability). Based on this information alone, an
officer would reasonably believe that Ms. McKnight’s
mother was facing a threat of serious bodily injury. Thus,
probable cause existed to arrest Myers before Officer
Azzarano crossed the threshold.

Myers contends that "the warrantless entry of 3202-B
Henry Avenue was conducted without probable cause to
believe a crime had been committed and without exigent
circumstances. Therefore, everything that followed-- the

                                42


arrest and subsequent seizure of the gun -- were unlawful,
and the gun should have been suppressed for this reason,
without more." The Majority has failed to address this
dispositive contention. It has failed to consider whether Ms.
McKnight’s information was sufficient to cause Officer
Azzarano reasonably to believe that her mother was
threatened with an assault by an armed man. The Majority
has also failed to respond to Myers’s contention that an
insufficient showing of exigent circumstances was made
that compelled an entry to save lives.

"[P]robable cause is an indispensable element for a
warrantless search of a dwelling even in the presence of
exigent circumstances." Fisher v. Volz, 496 F.2d 333, 339
(3d Cir. 1974) (internal quotation marks omitted). Ms.
McKnight’s report that a man armed with a gun was
involved in a fight with her mother was sufficient to
warrant a person of reasonable caution to conclude that an
offense that threatened the life of Ms. McKnight’s mother
and endangered the safety of her five brothers and sisters
was on-going. Her information provided Officer Azzarano
with probable cause to enter and arrest Myers without a
warrant.

The Majority has concluded that "Officer Azzarano’s
initial entry into the residence was justified." Maj. Op. at 5.
The Majority has also determined, however, that"there was
no probable cause to arrest Myers." Id. The Majority has
not explained how Officer Azzarano’s warrantless entry can
be "justified" if he did not have probable cause to arrest
Myers. Without probable cause to arrest Myers, Officer
Arrazano’s warrantless entry in the residence would not be
justified under the Fourth Amendment pursuant to Kirk v.
Louisiana, 536 U.S. ___, 122 S. Ct. 2458, 2459(2002) (per
curiam), and Fisher v. Volz, 496 F.2d at 339.2 I know of no
_________________________________________________________________

2. In footnote 19, the Majority relies on Sheik-Abdi v. McClellan, 37 F.3d
1240 (7th Cir. 1994) in support of its finding that Azzarano did not have
probable cause to arrest while conceding that his entry was "justified."
The Majority states that "[t]he court in Sheik-Abdi distinguished between
exigent circumstances that would justify a warrantless entry into a
home, and probable cause needed for arrest." Maj. Op. at p. 22, n.19.
The Majority’s reliance on Sheik-Abdi is misplaced. The Sheik-Abdi

                                43


case that holds that the probable cause to make an arrest
that is necessary to justify a warrantless entry disappears
as soon as an officer steps into the residence. The Majority
has cited none. If, as the Majority appears to have
concluded, Officer Azzarano did not have probable cause to
believe a crime was being committed prior to his entry into
the apartment, it would be our duty to reverse the denial of
the motion to suppress the seizure of the gun "for that
reason, without more," as requested by Myers.

The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend IV. Evidence seized as the result of an unreasonable
search and seizure must be suppressed. Mapp v. Ohio, 367
U.S. 643, 654-55 (1961).

In this matter, the narrow question we must decide is
whether the warrantless arrest of Myers in Ms. Bennett’s
residence, and the search of his person conducted as an
incident thereto, were unreasonable under the Fourth
Amendment. Ms. Bennett’s residence was not searched. No
property of hers was seized. She was not arrested or
charged with any crime.

In Payton v. New York, 445 U.S. 573 (1980), the Supreme
Court held that a New York statute that authorized the
warrantless and nonconsensual entry of a private residence
to make an arrest based on probable cause to believe a
felony had been committed was unconstitutional. Id. at
576. The Court stated that it would not reach the question
whether a warrantless entry to effect an arrest based on
_________________________________________________________________
decision does not involve the validity of a warrantless entry based on
exigent circumstances. The Seventh Circuit noted that "Sheik-Abdi does
not challenge the lawfulness of the officers’ presence in his home." Id. at
1245. In fact, Sheik-Abdi "concede[d] that while in the home, the officers
presumably could have prevented any breach of the peace that occurred
or as likely to occur." Id. The Seventh Circuit’s decision in Sheik-Abdi
does not support the Majority’s finding that a warrantless entry can be
"justified" without probable cause and exigent circumstances, as
required by the Supreme Court in Kirk v. Louisiana and this circuit’s
decision in Fisher v. Volz.

                                44


probable cause is reasonable if accompanied by exigent
circumstances because "none of the New York courts relied
on such justification." Id. at 582-83. The Court commented:
"Accordingly, we have no occasion to consider the sort of
emergency or dangerous situation described in our cases as
‘exigent circumstances’ that would justify a warrantless
entry into a home for the purpose of either arrest or
search." Id. at 583. In a later passage, the Court stated:

       "In terms that apply equally to seizures of property and
       to seizures of persons, the Fourth Amendment has
       drawn a firm line at the entrance to the house. Absent
       exigent circumstances, that threshold may not be
       crossed without a warrant." Id. at 590.

More recently, in Kirk v. Louisiana, the Court
paraphrased its holding in Payton v. New York as follows:
"As Payton makes plain, police officers need either a
warrant or probable cause plus exigent circumstances in
order to make a lawful entry into a home." Id. at 2459.
(Emphasis added). Because the Majority appears to have
concluded that Officer Azzarano did not have probable
cause to cross the entrance to Ms. Bennett’s residence, its
conclusion that the entry was justified violates the Supreme
Court’s decisions in Payton v. New York and Kirk v.
Louisiana.

The Majority’s discussion of Steagald v. United States,
451 U.S. 204 (1981) in footnote 9 of its opinion to refute my
reliance on Kirk v. Louisiana and this court’s decision in
Fisher v. Volz is puzzling. Steagald involves a completely
distinguishable factual scenario and legal analysis. The
Supreme Court summarized the question presented to it in
Steagald v. United States in the following words: "[T]he
narrow issue before us is whether an arrest warrant-- as
opposed to a search warrant -- is adequate to protect the
Fourth Amendment interests of persons not named in the
warrant, when their homes are searched without their
consent and in the absence of exigent circumstances." Id.
at 212. The Court held that "warrantless searches of a
home are impermissible absent consent or exigent
circumstances." Id. at 216. (Emphasis added).

In Steagald, police officers entered Steagald’s residence
without a search warrant, consent, or exigent
                                45


circumstances to serve an arrest warrant on Ricky Lyons.
Lyons was not in Steagald’s residence. Nevertheless, the
officers proceeded to conduct a search of Steagald’s
residence. They discovered controlled substances. Steagald
was arrested and indicted on federal charges. Steagald
moved to suppress the evidence seized in his home on the
ground that the officer did not have a search warrant when
they entered his residence. Id. at 207-08. The Supreme
Court noted in Steagald that "the Fourth Amendment claim
here is not being raised by Lyons. Instead, the challenge to
the search is asserted by a person not named in the
warrant who was convicted on the basis of evidence
uncovered during a search of the residence for Ricky
Lyons." Id. at 212. (Emphasis added.) The Court reversed
the Fifth Circuit’s judgment in Steagald holding that the
fact that the officers had a warrant for the arrest did not
justify the search of Steagald’s residence. Id. at 205. The
Supreme Court concluded in Steagald that, absent consent
or exigent circumstances, the police cannot conduct a
warrantless search of a residence in order to seize the
homeowner’s property. Id. at 216. Here, the police did not
conduct a search of Ms. Bennett’s residence nor did they
seize property belonging to her. Thus, Steagald has no
relevance to the issues presented in this case.

I agree with the Majority’s conclusion that Officer
Azzarano’s entry was "justified" but on totally discrete
grounds. Officer Azzarano’s undisputed testimony
demonstrates that he received information from a credible
informant that exigent circumstances compelled a
warrantless entry because an armed man was fighting with
the informant’s mother. This information also was sufficient
to demonstrate that there was probable cause to arrest
Myers for the commission of a serious crime.

I also agree with the district court that failure to enter
the residence and arrest Myers under these circumstances
would have been a grave dereliction of Officer Azzarano’s
duty to protect the safety of his fellow citizens. The record,
viewed in the light most favorable to the Government,
demonstrates that Officer Azzarano had probable cause to
believe a serious crime was being committed and that
exigent circumstances required an immediate entry based
on Ms. McKnight’s report.

                                46


III

When Officer Azzarano entered the apartment, he heard
raised voices and a lot of movement which he characterized
as "what appeared to be some type of fight occurring on the
second floor." Officer Azzarano called out "police." He did
not receive a response. At the top of the stairs, Officer
Azzarano encountered Lydia Bennett. He testified that she
"seemed upset to me and seemed that she had just been
involved in some type of altercation." He further testified
that her "demeanor seemed to be consistent with someone
who had been involved in some type of dispute. Her voice
was shaky, she seemed upset."

Officer Azzarano asked Ms. Bennett where the person
was who had been upstairs with her. She replied there was
no one upstairs with her. Based on Officer Azzarano’s police
experience in responding to domestic-dispute calls, her
response suggested to him that "she had, in fact, been
involved in some type of dispute and there was someone
nearby." Officer Azzarano was aware that Ms. Bennett’s
statement that she had been alone was not true because he
had heard at least two voices, and more than one set of
footsteps. He inferred from her false response that she was
afraid that Myers would retaliate if she complained of his
conduct.

As of the date of the suppression hearing, Officer
Azzarano had been a member of the Philadelphia Police
Department for three years. During that time, he had
responded to at least one domestic disturbance call a day.
He testified that such calls are very dangerous because the
anger level of the persons engaged in the altercation is
elevated and "lots of times you don’t exactly know what
you’re walking into." In United States v. Arvizu, the
Supreme Court instructed that the totality of the
circumstances standard "allows officers to draw on their
own experience and specialized training to make inferences
from and deductions about the cumulative information
available to them that might well elude an untrained
person." 122 S. Ct. at 750-51 (internal quotation marks
omitted). Thus, it was reasonable, based on his experience
in investigating domestic violence, for Officer Azzarano to
infer from her distraught condition, and her denial that

                                47


anyone was upstairs with her, that she feared that
revealing where Myers was hiding might endanger her
safety.

Officer Azzarano’s own observations corroborated Ms.
McKnight’s information that her mother was involved in an
altercation with an armed man. After receiving Ms.
Bennett’s deceptive reply, Officer Azzarano saw Myers
hiding behind a partially open bedroom door. The fact that
the person behind the door was attempting to avoid
detection caused Officer Azzarano to conclude that there
was no reason for Myers "to hide from me if, in fact, it was
just a simple argument between two parties." 3 Thus, based
on Ms. McKnight’s request for police intervention to protect
her mother from a man with a gun, and his independent
observations, Officer Azzarano aimed his gun at Myers and
ordered him to step out from behind the door. When Myers
stepped out, he was carrying a black backpack. Officer
Azzarano ordered Myers to lie down on the floor. Myers
complied and while doing so, placed the backpack on the
floor approximately three feet away from his body. Officer
Azzarano handcuffed Myer’s hands behind his back and
placed him under arrest for domestic assault. Officer
Azzarano defined the Pennsylvania crime of domestic
assault as "assault or some type of threat level towards
someone who [Myers] had a previous relationship with."
Officer Azzarano checked Myers’s waistband to see if he
was carrying a concealed weapon. Myers was not carrying
a weapon on his person.

IV

In a well-reasoned discussion of the pertinent facts and
the applicable legal principles, the district court held that
Officer Azzarano had probable cause to believe that a
domestic disturbance was in progress involving a man
armed with a gun and that these exigent circumstances
justified a warrantless entry of the residence. I am
persuaded that each of the district court’s factual findings
_________________________________________________________________

3. Nor were Myers and Bennett "in the middle of a peaceful dinner,
sharing jokes and laughing." See Maj. Op. at 21 n.17.

                                48


is supported by evidence in the record and that it did not
commit any legal errors.

A.

The district court determined that Officer Azzarano had
probable cause to arrest Myers for the crime of simple
assault pursuant to 18 Pa. C.S. S 2701(a)(3) (2000). Section
2701(a)(3) provides that "a person is guilty of assault if he
. . . attempts by physical menace to put another in fear of
imminent serious bodily injury." At the time of Myers’s
arrest, a police officer had the right to arrest a person for
simple assault that did not take place in the presence of
the police officer if "he has probable cause to believe that
the defendant has violated section . . . 2701 (relating to
simple assault) . . . against his spouse or other person with
whom he resides or has formerly resided." 18 Pa. C.S.
S 2711(a) (2000). An officer may not arrest a person under
section 2711 "without first observing recent physical injury
to the victim or other corroborative evidence ." 18 Pa. C.S.
S 2711(a) (2000) (emphasis added). It is quite true that
Officer Azzarano did not see Myers assault Ms. Bennett, nor
did he observe recent physical injury. The record, however,
is replete with corroborative evidence known to Officer
Azzarano that would support an inference that Myers
"attempt[ed] by physical menace to put[Ms. Bennett] in
fear of imminent serious bodily injury." 18 Pa. C.S.
S 2701(a)(3).

As summarized above, before arresting Myers, Officer
Azzarano was aware of the following circumstances:

1. The Philadelphia Police Department had received a
911 telephone call that a person with a gun was involved in
a disturbance with a female companion.

2. Officer Azzarano was told by Ms. McKnight that her
mother and her boyfriend were involved in a fight and the
boyfriend was armed with a gun.

3. Officer Azzarano heard what sounded like a fight on
the second floor.

4. When Officer Azzarano observed Ms. Bennett, she
appeared to be upset as if she had been involved in an
altercation.

                                49


5. When asked about the whereabouts of the other
participant in the dispute, Ms. Bennett falsely represented
she had been alone.

6. Based on his prior experience in investigating
domestic disputes, Officer Azzarano inferred from her false
response that she was afraid to respond truthfully because
she was afraid of violent retribution.

7. Myers did not respond when Officer Azzarano
announced his presence as a police officer, and instead hid
behind a partially open bedroom door.

8. Myers was holding a backpack just prior to being
placed under arrest.

The totality of these circumstances provided corroborative
evidence that Myers had attempted to place Ms. Bennett in
fear of bodily injury.

In rejecting the district court’s findings, the Majority has
made its own credibility findings, reweighed the evidence,
and failed to consider the record in the light most favorable
to the Government, in contravention of clearly established
principles of appellate review. See United States v. Igbonwa,
120 F.3d 437, 440-41 (3d Cir. 1997). The Majority also
appears to have confused the quantum of evidence required
to demonstrate probable cause for an arrest with the heavy
burden placed on the Government to present sufficient
evidence of each element of a crime that persuades the trier
of fact of the guilt of the defendant beyond a reasonable
doubt. Draper v. United States, 358 U.S. 307, 312 (1959).

B.

The district court’s findings concerning the
circumstances that demonstrated probable cause for an
arrest for simple assault under Pennsylvania law read as
follows:

       Now, with reference to the arrest and the information
       that the officer had available to him at that time,
       Pennsylvania Statute defines an assault as-- among
       other things, as an attempt to cause or intentionally,
       knowingly or recklessly causing bodily injury to

                                50


       another and also includes attempts by physical menace
       to put another in fear of serious bodily injury.

       In this regard, I find that there was an ongoing simple
       assault in the presence of Officer Azzarano and,
       therefore, conclude that he had probable cause to
       arrest for that ongoing assault at that time, since it
       was occurring in his presence. This is based on the
       totality of the circumstances that I have mentioned,
       including the 9-1-1 report, the conversation with
       McKnight, the statement that McKnight said they were
       fighting and that the boyfriend has a gun, that he
       heard the raised voices upstairs and the movement
       which suggested an ongoing fight, his conversation
       with Bennett and her denial of his presence and also
       her demeanor, and that the house was in array (sic)
       and that the defendant was hiding and she denied that
       he was there. So, I conclude, therefore, that he did
       have the probable cause to make an arrest for simple
       assault at that time.

(emphasis added).

The Majority appears to have concluded that the term
"fighting" as used by Ms. McKnight in describing the on-
going crime being committed against her mother refers
solely to a "physical altercation or struggle." Maj. Op. at 12.
The term "fight," however, includes "a verbal disagreement."
Webster’s Third New International Dictionary 847 (1976). It
is undisputed that Officer Azzarano heard raised voices,
observed Ms. Bennett’s distraught condition, and saw that
the upstairs area was in disarray, as if there had been a
struggle. He had also been informed by a person whose
information is presumed to be trustworthy that Myers was
armed with a gun. Officer Azzarano’s independent visual
and auditory perception of these circumstances involving
an armed man would lead a reasonable person to conclude
that the information he had received from Ms. McKnight
was accurate and that there was probable cause to believe
Myers was attempting to place Ms. Bennett in fear of
imminent serious bodily injury.

The Majority has made a factual finding that the upstairs
area where Officer Azzarano encountered Ms. Bennett was

                                51


not in disarray. The district court’s contrary finding that
the area was in disarray was based on Officer Azzarano’s
undisputed testimony. The Majority states:

       "The record is devoid of any suggestion that the level of
       disarray was excessive to the point of being probative
       of a physical altercation. The most that we can
       conclude from the officer’s description of the state of
       the apartment is that it was messy." (Emphasis added.)

Maj. Op. at 13-14.

The Majority’s finding that the apartment was "messy,"
and not in disarray, violates the rule that appellate courts
cannot reweigh the evidence, or engage in fact-finding.
Igbonwa, 120 F.3d at 440-41. Officer Azzarano’s description
of the condition of the apartment was undisputed. The
Majority’s finding also ignores Officer Azzarano’s daily
experience in investigating domestic disputes and his prior
observations of the condition of residences where violations
of section 2701(a)(3) had occurred.

The quoted language also ignores the fact that evidence
of a physical altercation is not required to prove a violation
of section 2701(a)(3). That crime is committed if a person
attempts to put another in fear of imminent serious bodily
injury by physical menace. 18 Pa. C.S. S 2701(a)(3). Proof of
a physical injury is not required.

The Majority states that "there is no evidence that Myers
pointed a gun at Bennett in Azzarano’s presence or
otherwise, and nothing supports the inference that
Azzarano thought he had." Maj. Op. at 9. In fact, Officer
Azzarano testified that he arrested Myers for "domestic
assault" because of his "terrorist threats" with a handgun.
The refusal of the Majority to accept Officer Azzarano’s
undisputed testimony concerning the inferences he drew,
based on the totality of the circumstances, is contrary to
our duty as appellate judges to construe the record in the
light most favorable to the Government in reviewing the
denial of a motion to suppress. Cook, 277 F.3d at 84.

C.

In reweighing the evidence in the record, the Majority has
also minimized what Azzarano saw, finding that "the only

                                52


thing Myers did in [Azzarano’s] presence was hide behind a
door." Maj. Op. at 9. This finding is also inconsistent with
Officer Azzarano’s undisputed testimony. As Officer
Azzarano ascended the stairway, Myers attempted to
conceal himself behind a partially open doorway. The threat
of imminent harm to Ms. Bennett from an armed man did
not cease. It continued -- but with Officer Azzarano as an
additional victim of Myers’s menacing behavior. Officer
Azzarano testified:

       When I saw the defendant was hiding behind the door,
       my fear level increased greatly. I figured something
       had, in fact -- something happened or something was
       happening and there would be no reason for him to
       hide from me if, in fact, it was a simple argument
       between two parties.
(emphasis added).

Appellate judges spend their days cloistered in secure
buildings guarded by United States Marshals, protected
from strangers and the public by electronically controlled
doors and elevators. We have no expertise in the
investigation of volatile domestic altercations. We have no
first-hand experience regarding the threat of violence
presented by persons involved in a domestic dispute when
a police officer attempts to act as a peacemaker in calming
their fury. Instead of engaging in a reductio ad absurdum
dissection of an officer’s recitation of the totality of the
circumstances confronted in making an arrest under life-
threatening conditions, in clear violation of the Supreme
Court’s instruction in United States v. Arvizu , we should
adhere to this court’s admonition that "when the district
court’s decision is based on testimony that is coherent and
plausible, not internally inconsistent and not contradicted
by external evidence, there can almost never be a finding of
clear error." Igbonwa, 120 F.3d at 440-41 (internal
quotation marks and citations omitted). The district court
did not clearly err in concluding that Officer Azzarano had
probable cause to believe that Myers committed a violation
of section 2701(a)(3) in the officer’s presence.

                                53


V

The district court denied the motion to suppress because
it was persuaded by the totality of the circumstances that
Officer Azzarano had probable cause to arrest Myers and
that the search of the backpack was incident to a lawful
arrest. The Majority has concluded that Officer Azzarano
did not have probable cause to arrest Myers for any crime.4
This observation, if correct, would invalidate the
warrantless entry of the residence and eliminate the need to
determine whether the search of the backpack was incident
to a lawful arrest. In a discussion which lacks any
precedential value because it is unnecessary to its decision,
and casts doubt on its conclusion that Azzarano did not
have probable cause to arrest Myers, the Majority has
opined that the search of the backpack was not incident to
Myers’s arrest.

The Majority states that, because Myers was handcuffed
behind his back and covered by two armed police officers,
the backpack was not accessible to Myers because"he was
neither an acrobat [nor] a Houdini" Maj. Op. at 25. (quoting
United States v. Abdul-Saboor, 85 F.3d 664, 669 (D.C. Cir.
1996). The quoted language from Abdul-Saboor is dictum.
In Abdul-Saboor, the D.C. Circuit affirmed the denial of a
motion to suppress. Id. at 666. In that matter, the record
showed that the search was conducted after the defendant
was handcuffed and sitting on a chair in a hallway about
four feet outside the bedroom door in the custody of at least
one armed police officer. Id. at 669-70. The D.C. Circuit
held in Abdul-Saboor that the subsequent search of the
bedroom was a lawful search incident to an arrest. Id. at
670. Thus, Abdul-Saboor supports the conclusion of the
district court here that the search of the backpack was
accessible to Myers and incident to a lawful arrest,
notwithstanding the fact he was handcuffed and in the
custody of an officer.
_________________________________________________________________

4. As discussed above, the Majority’s holding is starkly inconsistent with
its determination that the warrantless entry of the residence did not
violate the Fourth Amendment because it was "justified." A warrantless
entry of a dwelling must be supported by probable cause "even in the
presence of exigent circumstances." Fisher v. Volz, 496 F.2d at 339
(internal quotation marks omitted).

                                54


Other circuits have also upheld searches conducted as
an incident to an arrest where the defendant was
handcuffed and in the presence of police officers. In United
States v. Queen, 847 F.2d 346 (7th Cir. 1988), the Seventh
Circuit affirmed the denial of a motion to suppress a loaded
revolver seized from the floor of a closet as incident to an
arrest although the defendant’s hands were handcuffed
behind his back and he was guarded by two armed Federal
Bureau of Investigation agents. Id. at 353.

In United States v. Silva, 745 F.2d 840 (4th Cir.   1984),
the arrestees were handcuffed behind their backs,   and as
they sat on a motel room bed, an officer searched   a locked,
zippered bag which contained two firearms and
ammunition. Id. at 847. The Fourth Circuit upheld   the
search as incident to a lawful arrest. Id.

In United States v. Palumbo, 735 F.2d 1095 (8th Cir.
1984), the Eighth Circuit rejected the appellant’s argument
that a search was not incident to his arrest because"the
cocaine, hidden behind a dresser drawer, was inaccessible
to him because he was handcuffed and in the presence of
several officers." Id. at 1097.

The Majority has failed to cite any decision that supports
its theory that the fact that a person is handcuffed and
covered by more than one police officer makes a weapon
three feet away inaccessible. Its dictum to that effect is
contrary to the express holdings of four of our sister
circuits.

The undisputed evidence, when viewed in the light most
favorable to the Government, shows that Officer Azzarano
decided to search the backpack when he noted that Myers
kept looking at the bag and "he was getting more and more
nervous as he answered my questions. His voice was more
shaking and halting." Officer Azzarano further testified that
based on his experience as an officer "[t]he defendant’s
demeanor led me to believe that there was something in the
bag that he didn’t want me to see." As discussed in the
authorities cited above, whether or not Myers could get to
the bag to open it is not relevant in determining whether
the search was incident to the arrest. In discussing the
question of accessibility at the time of a search, the D.C.

                                55


Circuit reasoned as follows in United States v. Lyons, 706
F.2d 321 (D.C. Cir. 1983):

       Custodial arrests are often dangerous; the police must
       act decisively and cannot be expected to make
       punctilious judgments regarding what is within and
       what is just beyond the arrestee’s grasp. Thus,
       searches have sometimes been upheld even when
       hindsight might suggest that the likelihood of the
       defendant reaching the area in question was slight.

Id. at 330 (citing United States v. Mason, 523 F.2d 1122,
1125-26 (D.C. Cir. 1975)).

CONCLUSION

I would affirm the district court’s denial of the motion to
suppress. Based on Ms. McKnight’s report, when Officer
Azzarano entered Ms. Bennett’s residence, he had probable
cause to believe that she was threatened with imminent
bodily harm by an armed man. Officer Azzarano’s entry into
the apartment without a warrant was also justified by
exigent circumstances -- to protect Ms. Bennett and her
children from physical injury. The facts he observed after
entering the apartment confirmed the eye witness report of
Ms. McKnight that Myers was committing a serious crime.

Officer Azzarano’s search of Myers’s backpack was
incident to a lawful arrest for a violation of
section 2701(a)(3), based on Ms. McKnight’s reliable
information that a serious crime was being committed
within the residence, and the corroborating facts the officer
perceived within Ms. Bennett’s residence. Myers’s conduct
in Officer Azzarano’s presence constituted an attempt by
physical menace to put Ms. Bennett in fear of imminent
serious bodily injury. The fact that Myers was in the
custody of two officers and handcuffed did not invalidate
the search as incident to a lawful arrest.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                56
