                 UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 92-8179



UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,


                                versus


SKIRVIN GEORGE JOHNSON,
                                                Defendant-Appellant.




          Appeal from the United States District Court
                for the Western District of Texas


        (Opinion February 28,    5th Cir., 1994        F3d     )

                          (March 23, 1994)

                       Petition for Rehearing




Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit
Judges.

POLITZ, Chief Judge:

     The petition for rehearing is granted to the extent set forth

herein; otherwise same is denied, and the opinion of this court is

reaffirmed.

     The government appropriately requests a clarification and

correction of our opinion with regard to the reference to remand
for a new trial.       We do not order a new trial; the sole reference

to such in the opening paragraph of our opinion was inadvertent and

is recalled.     On remand the district court is first to review the

record and identify any evidence obtained after the illegal seizure

of Phoenix-related documents from Johnson's briefcase which may be

deemed fruit of the poisonous tree.         Any evidence so identified is

to be disregarded when the district court then evaluates the

remainder to determine whether the record contains sufficient

evidence to support Johnson's convictions.

     Our colleague in his partial dissent and the government in its

petition for rehearing misread our conclusion and holding about the

contents of the briefcase.         Both suggest that we have viewed the

findings of fact by the trial judge in an inappropriate manner.             We

have not done so.        We have accepted the findings of fact.            We

review the district court's conclusions of law de novo, however.

     For searches which are incident to arrest we review de novo

the application of the proper legal standard to the established

facts.1      We view the articulation and definition of the "area

within immediate control" as a question of law, obviously dependent

on material factual findings, much like the legal determination of

probable     cause.2    Applying   the    proper   legal   standard   to   the




         1
       United States v. Turner, 926 F.2d 883 (9th Cir.), cert.
denied, 112 S.Ct. 103 (1991).
     2
     See, e.g., United States v. Orozco, 982 F.2d 152 (5th Cir.),
cert. denied, 113 S.Ct. 2430 (1993) (the ultimate determination of
probable cause is a question of law).

                                      2
accepted findings of fact,3 we conclude that under the facts as

developed in this particular case the trial court erred in its

legal conclusion that the briefcase was within Johnson's area of

immediate control at the time it was searched.                   It was not.

     Except      as   herein   in    part      granted,    the    application   for

rehearing is denied, the opinion is reaffirmed, the convictions are

VACATED,   and    the   matter      is   REMANDED    for   further    proceedings

consistent herewith.




    3
     Much has been made of the district court's purported factual
findings on the pretrial motion to suppress. A close look at the
record is compelled. The district court then stated:

          After reviewing the record evidence, the Court
     specifically finds from the credible evidence that
     Phoenix police officer Sterrett executed an Arizona
     arrest warrant on the defendant at defendant's workplace
     with the City of Austin. According to officer Sterrett,
     defendant's open briefcase was on one of the chairs
     approximately six to eight feet from defendant's desk
     where defendant was sitting.    The defendant indicated
     that the briefcase was five to six feet away.        The
     officer could see a checkbook inside the briefcase when
     he entered the office.

          During the arrest, defendant Johnson got out of his
     chair two or three times, and the officer repeatedly told
     Johnson to sit down. The officer did indicate that it
     was a passive situation.     He also testified that he
     cursorily searched the briefcase to make sure that it
     contained no gun. He also searched areas in defendant's
     immediate vicinity at defendant's workstation in his ten
     foot by 12 foot office. [Emphasis added.]

The district court appears to have distinguished areas within
Johnson's immediate vicinity from the area around his briefcase.
In our opinion, we concluded that the evidence seized from
Johnson's workstation/desk was admissible. That seized from his
briefcase was not. We reiterate those conclusions.

                                         -3-
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:



         For the reasons set forth previously, I continue to dissent in

part.

         Furthermore, I do not share the majority's view that the

central issue in this case))i.e., whether the briefcase was within

Johnson's "area of immediate control"4))is a question of law to be

reviewed de novo.          The majority's analogy to the standard this

Court has adopted for reviewing probable cause determinations is

not persuasive authority.           Unlike issues of probable cause, the

issue     of   whether   an   object   is   within   a   defendant's   area   of

immediate control does not require us to consider abstract legal

doctrines, to weigh underlying policy considerations, or to balance

competing legal interests.           Consequently, the issue of immediate

control is essentially a question of fact, which should be reviewed

under a clearly erroneous standard.5            See Fed. R. Civ. P. 52(a).

         This Court has not definitively stated what standard of review

applies when reviewing a Chimel determination of immediate control.


     4
               See Chimel v. California, 89 S. Ct. 2034 (1969).
     5
            That the issue of immediate control may be considered an ultimate
question of fact, dependent upon certain subsidiary facts, does not mean that
Rule 52(a) no longer applies. See Pullman-Standard v. Swint, 102 S. Ct. 1781,
1789 (1982) (holding that ultimate findings of fact are reviewed for clear
error). To the extent that the issue of immediate control may be considered a
mixed question of law and fact))i.e., because it involves an application of the
Chimel rule to the established facts))the general rule in this Circuit is that
such questions are freely reviewable. See, e.g., Barrientos v. United States,
668 F.2d 838, 841 (5th Cir. 1982). However, we have recognized that to the
extent such questions are predominantly factual, they are reviewable for clear
error. See, e.g., Connally v. Transcon Lines, 583 F.2d 199, 202 (5th Cir. 1978);
Backar v. Western States Prod. Co., 547 F.2d 876, 884 (5th Cir. 1977).
The Seventh and Eighth Circuits review such determinations for

clear error.    See United States v. Morales, 923 F.2d 621, 627 (8th

Cir. 1991) ("We conclude that the finding of the magistrate adopted

by the district court that the bags were within Morales' area of

immediate control is not clearly erroneous."); United States v.

Bennett, 908 F.2d 189, 193 (7th Cir. 1990) ("We find that although

the defendants were handcuffed and placed against the wall of the

room at the time of the search, the facts of this case are such

that the district court's finding that the search was limited to

the   area   within   their   immediate   control   is   not   clearly

erroneous.").    The Ninth Circuit reviews Chimel determinations of

immediate control de novo.    See United States v. McConney, 728 F.2d

1195, 1206-07 (9th Cir. 1984) (en banc).

      For the foregoing reasons, I would review for clear error the

district court's determination that Johnson's briefcase was within

his area of immediate control.




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