person is arrested in a place other than his home, the arresting officers may 'impound the personal effects that are with him at the time to ensure the safety of those effects or to remove nuisances from the area.'" Id. at 643 (citations omitted). From this he reasons that the inventory search exception to the probable cause requirement applies only when a defendant is arrested away from his home, and that since El-Gabrowny was arrested on the street right outside his apartment building and was brought into the lobby of that building, his possessions should have been treated as if he had been arrested in his home, and brought there after his arrest.
Perea will not support the weight of that argument nor yield the result El-Gabrowny seeks. Perea dealt with the search of a duffel bag in the defendant's possession in the trunk of a car when he was arrested; it did not deal with, and there was no occasion for the Court to treat, items found on the person of a defendant at the time of his arrest even in his apartment. Further, El-Gabrowny was arrested "in a place other than his home" -- i.e., on the street, as soon as it became apparent that the encounter was "'too intrusive to be classified as an investigative detention[.]'" Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991) (quoting United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989)). Certainly, when the officers succeeded in handcuffing El-Gabrowny after the assault and ensuing struggle, he was under arrest. Thus, the obvious rationale for the limitation recognized in Perea that an inventory search deal only with items found in a defendant's possession when he is arrested away from his home, lest an arrest at home become the occasion for a warrantless search of the home, does not apply.
Finally, even if one could somehow read Perea to prescribe the procedure El-Gabrowny would have me impose, we must remember what was going on at El-Gabrowny's apartment when and after he was arrested. That apartment was being searched pursuant to a warrant that authorized seizure inter alia of "documents relating to the procurement of materials used in the construction or manufacture of explosive devices." (Kunstler/Kuby Aff. Ex. A) Once the passports and other documents were examined to determine whether they fit the description of documents that could be seized pursuant to the warrant, their incriminating character likely would have been perceived and they were subject to seizure as evidence in plain view. United States v. Ochs, 595 F.2d 1247, 1257 n. 8 (2d Cir.) (Friendly, J.), cert. denied, 444 U.S. 955, 62 L. Ed. 2d 328, 100 S. Ct. 435 (1979).
In sum, El-Gabrowny's argument, however imaginative, is simply unavailing.
The second sufficient basis for the seizure and pat search of El-Gabrowny arises from Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981), which holds that law enforcement officers who are about to execute a search warrant, and encounter outside the premises they intend to search a person who is an occupant of those premises, may compel that person to return to those premises and remain there while the search is conducted. The existence of the warrant and the connection between the person they confront and premises to be searched provide both objective justification for the detention and the basis for suspecting that that person is connected to criminal activity. Summers, 452 U.S. at 703-04.
Assuredly, Summers did not announce a rule that any person on premises being searched may also be searched, but it did specify that "the interest of minimizing the risk of harm to the officers" is one of the justifications for the holding that those on the premises being searched may be detained. Id. at 702. Accordingly, officers may not only detain occupants of premises being searched, but also may make a limited search of such persons to the extent necessary to assure that they do not pose a hazard. United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982). El-Gabrowny's belligerent refusal to remain in position for a frisk and to keep his hands against the wall, simply heightened the need for such assurance. Once again, as soon as El-Gabrowny struck the agents, his arrest and the subsequent search were justified.
Although El-Gabrowny argues that the officers had no intention of returning him to his apartment as Summers permitted, so long as he was headed away from his apartment building, that is not at all clear. Corrigan recalled hearing a radio transmission directing that El-Gabrowny be stopped. See p. 3, supra. What is clear is that El-Gabrowny turned around and was headed back toward the building. Nor is the calculus changed by Corrigan's statement that when he walked El-Gabrowny back toward the apartment building, he was seeking help in dealing with the rectangular object suspected of being a plastic explosive, or by Burke's testimony that El-Gabrowny was moved from the first location to the second because the officers felt hemmed in at the first location -- neither officer giving any thought to the possibility that he was also exercising a law enforcement prerogative vouchsafed by Summers. The applicable law requires only that law enforcement officers act in a constitutionally permissible fashion, not that they also think in constitutionally exhaustive categories while doing so. See Ochs, 595 F.2d at 1256 ("The test is what could lawfully be done, not what the policemen thought the source of their power to be."). The availability of a Terry rationale does not foreclose an alternative Summers rationale.
In any event, once El-Gabrowny assaulted the agents after he was permissibly stopped and frisked, there was set in train a course of events that would have resulted inevitably in the discovery of the documents at issue. Perea, 986 F.2d at 644. It was established at a resumed hearing on November 8, 1994 that the FBI has a standard procedure for dealing with items of personal property removed from a person who has been arrested, as follows:
Items of personal property removed from a person who has been arrested and is to be incarcerated should be carefully inventoried by Agents prior to being stored for safekeeping. A receipt for such property should be prepared and given to the arrestee. This inventory should include the contents of containers such as purses, shoulder bags, suitcases, etc., whether or not the containers are locked or sealed. In the event such containers are locked or sealed great care must be taken to minimize damage to the container or its contents while gaining access. This caretaking function must not be construed as an alternative to a search warrant whenever there is probable cause to believe that evidence or contraband is inside a container. Under those circumstances the container should be secured until a search warrant can be obtained.
(GX 3516 C)
Here, the items that had been in El-Gabrowny's possession when he was arrested were placed on a table at FBI headquarters, and two agents who had had nothing to do with the matter until then were asked to prepare an inventory. (11/8 Tr. 4-10) They did so, although they did not provide El-Gabrowny with a receipt for the inventoried items. (Id. at 11)
El-Gabrowny argues that the only permissible inventory search is one performed pursuant to a routine procedure, see Illinois v. Lafayette, 462 U.S. 640, 643, 77 L. Ed. 2d 65, 103 S. Ct. 2605 (1983) ("The question here is whether . . . it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect."), and attacks the inventory search at FBI headquarters in two respects for allegedly deviating from "routine administrative procedure." First, he notes that the search was performed by agents who were not involved in the arrest, whereas the testimony at the hearing established that usual procedure was to have the search conducted by agents who were involved in the arrest. (11/8 Tr. at 7) Second, he points out that the written FBI procedure requires issuance of a receipt to the arrestee, whereas none was issued to El-Gabrowny.
However, there is no evidence that either of these deviations from usual or mandated procedure was artful or worked to El-Gabrowny's prejudice. In particular, there is no evidence that agents not involved in El-Gabrowny's arrest were used to avoid the FBI's own written rule that the inventory procedure should not be used "when there is probable cause to believe that evidence or contraband is inside a container." (GX 3516 C, supra) One of the agents who conducted the inventory search testified that although it was usual for arresting agents to do the inventory and attendant paperwork, "they were kind of tired and they kind of stuck us with it." (Id. at 7) Failure to give the receipt was entirely inconsequential and does not stand as evidence of any larger problem. See Colorado v. Bertine, 479 U.S. 367, 369, 93 L. Ed. 2d 739, 107 S. Ct. 738 (1987) (upholding inventory search described by the District Court as having been performed "in a 'somewhat slipshod' manner").
For the above reasons, El-Gabrowny's motion to suppress the documents seized from his person at the time of his arrest is denied.
Dated: New York, New York
December 19, 1994
Michael B. Mukasey,
U.S. District Judge