Collins v. Commonwealth , 1978 Ky. LEXIS 445 ( 1978 )

CLAYTON, Justice.

Walter Collins was convicted of theft by unlawful taking, trafficking in heroin, and being a persistent felony offender, and was sentenced to 13 years’ imprisonment. The Court of Appeals affirmed the judgment of the Fayette Circuit Court. We granted discretionary review.

On June 22, 1975, three Lexington police detectives had occasion to visit the Sportsman’s Motel in connection with an investigation concerning stolen tires. Appellant, who was staying at the motel with his nephew Anthony Collins, consented to a search of his room for the missing tires. Having been alerted by a maid who had seen something thrown out of the window of appellant’s room, the detectives found an automatic pistol and a hide-a-key case containing 20 bags of what appeared to be heroin on the ground near the window. This discovery led to the arrest of appellant and his nephew in the motel room. Appellant was patted down by Detective Shade, who next searched the pillows on the motel bed and then ordered appellant to sit on the bed. Immediately thereafter Shade proceeded to search the air conditioner located four to seven feet from where appellant was seated. A bus station locker key was found when Shade opened a small (eight inches by eight inches) door on the air conditioner. Subsequently the police, pursuant to a warrant, conducted a search of the locker corresponding to the key and found four grams of heroin (58% pure) and various drug paraphernalia. The contents of the locker were introduced at trial over appellant’s objection that they be suppressed as fruit of an illegal search and seizure.

Discretionary review was granted on the limited issue of whether the warrantless search of the air conditioner was a valid search incident to the lawful arrest of appellant. The constitutionality of a search incident to an arrest turns upon whether the area searched is “‘within [the arres-tee’s] immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969). Both the trial court and the Court of Appeals concluded that the search here was within the guidelines set out by the United States Supreme Court in Chimel. We affirm.

Appellant contends that the search of the air conditioner exceeded Chimel standards. The gist of his argument is that under the circumstances the arrestees were under police control to such an extent that the possibility of appellant gaining access to the air conditioner to reach a weapon or evidence was minimal. We cannot agree that Chimel requires a police officer to weigh an arrestee’s probability of success of obtaining a weapon or destructible evidence before conducting a search incident to an arrest. As the Supreme Court of the United States said in U. S. v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440 (1973):

A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoe judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found .

The Court of Appeals for the Sixth Circuit recently held, in a case factually similar to the case before us, that “even after a defendant has been restrained pursuant to arrest, the search of an area from which he might gain possession of a weapon is lawful.” Watkins v. U. S., 564 F.2d 201, 204 (6th Cir. 1977), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978). In Watkins, the defendant was arrested in his bathrobe by two police officers, who accompanied him to his bedroom so that he could get a shirt. While in the bedroom the police discovered a revolver under the mattress. The Court concluded that since the gun was within the defendant’s reach the search was valid as incident to the arrest.

We agree with the position taken in Watkins that the area which may be searched under Chimel is that area from which the arrestee might gain possession of a weapon or destructible evidence. In this case there were three detectives and two arrestees in the motel room. Appellant was located four to seven feet from the air conditioner. The air conditioner was therefore within the immediate area where appellant might have reached, and we cannot say the search was unreasonable nor unconstitutional.

The judgment is affirmed.

All concur except LUKOWSKY, J., who dissents.