Appeal from the United States District Court for the Southern District of California. DC No. CR-92-0705-01-LCN. Leland C. Nielsen, Judge, Presiding
Before: Tang, Canby, and Beezer, Circuit Judges
German Altamirano-Ramirez appeals his conviction of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He maintains that he is entitled to a new trial on the grounds that (1) his conviction was based on evidence that was discovered pursuant to an illegal search, and (2) the government, in violation of Fed. R. Crim. Proc. 16(a)(1), failed to disclose the written record of a statement made by Altamirano-Ramirez. We affirm the conviction, concluding that the evidence was discovered during the course of a valid search incident to arrest, and that the district court adequately cured the Rule 16(a)(1) violation.
Appellant Altamirano-Ramirez and two companions were arrested by border patrol agent Chris Bippley for entering the United States illegally. Following the arrest, Bippley patted down all three suspects to search for weapons, contraband, and evidence. During the search of Altamirano-Ramirez, Bippley felt and heard what seemed to be plastic bags in the lining of Altamirano-Ramirez's jacket.
Bippley testified that he thought it would be safer to have the jacket taken off before he continued examining it, so he ordered Altamirano-Ramirez to remove it, and then placed all three arrestees inside his truck. After further examination, Bippley cut a small hole in the lining to gain access to what he felt inside. When he removed his knife from the hole, it was covered with a white powder that Bippley took to be narcotics. Upon analysis, the jacket proved to contain approximately 250 grams of heroin.
Altamirano-Ramirez contends that the district court erred in refusing to suppress this evidence. He agrees that the pat down search of the jacket was a valid search incident to arrest, but argues that once the jacket had been removed and was in Bippley's exclusive control, further searching was impermissible. We find no merit in this contention.
"When making a lawful arrest, police may conduct a warrantless search of the area within the arrestee's immediate control. . . ." United States v. Turner, 926 F.2d 883, 887 (9th Cir.) (citing Chimel v. California, 395 U.S. 752, 763 (1969)), cert. denied, 112 S. Ct. 103 (1991). "Such a search . . . must be conducted at about the same time as the arrest." Id. (quotation omitted). To determine the legality of such a search, we apply a two part inquiry. See id. at 887-88. First, we ask whether the item or area searched was "within the arrestee's immediate control when he was arrested." Id. Second, we ask whether events occurring after the arrest but before the search made the search unreasonable. Id.
The facts of this case satisfy both parts of this inquiry. Altamirano-Ramirez was wearing the jacket when arrested; it plainly was within his control.*fn1 Bippley removed the jacket from Altamirano-Ramirez and secured him in the truck before completing the search out of concern for his (Bippley's) safety. This delay did not render the subsequent search unreasonable. See id. at 888 (delay in searching room until suspect was handcuffed reasonable to protect safety of arresting officers). Nor did the fact that the jacket had been reduced to Bippley's exclusive control make its subsequent search invalid; what matters is that the jacket was within Altamirano-Ramirez's control at the time of arrest. Id.; see also New York v. Belton, 453 U.S. 454, 462-63 (1981) (search incident to arrest of suspect's jacket, which was inaccessible to suspect at time of search, did not violate Fourth Amendment).*fn2
Altamirano-Ramirez also objects that even if the search otherwise was legal, the manner in which it was carried out was "intolerably intensive," because Bippley "slashed open the lining and destroyed the jacket in order to search the inaccessible interior." Bippley, in fact, cut a one quarter inch slit in the lining. This hardly amounts to destroying the jacket and was not unreasonable under the circumstances.*fn3
The Supreme Court's recent decision in Minnesota v. Dickerson, 113 S. Ct. 2130 (1993), does not alter our Conclusion. There the Court held that an officer who feels a suspicious object, not a weapon, on the person of a suspect during a Terry search may not lawfully continue the search to determine whether the felt object is contraband; the search is unlawful unless the incriminating character of the object was immediately apparent when felt. Id. at 2139. The crux of the Dickerson ruling, however, was the limited nature of a Terry search; it is designed "'to determine whether the person is in fact carrying a weapon.'" Id. at 2136 (quoting Terry v. Ohio, 392 U.S. 1, 24 (1968)). In our case, however, Altamirano-Ramirez had been arrested. A search incident to arrest is not confined to weapons, but may include a search for evidence that might be destroyed or hidden by the arrestee. Chimel v. California, 395 U.S. 752, 762-63 (1969) (distinguishing between permissible scope of Terry search and permissible scope of search incident to arrest); see also Dickerson, 113 S. Ct. at 2140 (Scalia, J., Concurring) (common law permitted full evidentiary search incident to arrest). Dickerson accordingly does not bar the search of Altamirano-Ramirez's jacket.*fn4
When agent Bippley first patted down Altamirano-Ramirez and felt something inside his jacket's lining, he asked Altamirano-Ramirez what was there. Altamirano-Ramirez replied, but Bippley did not hear the answer, nor did he ask Altamirano-Ramirez to repeat it. However, one week before trial, when the government interviewed the two men who were arrested with Altamirano-Ramirez, one of them, Ignacio Altamirano, stated that he had heard Altamirano-Ramirez's response to the question, and that Altamirano-Ramirez had replied "dope." Ignacio then signed an affidavit containing this information. The government did not turn over the affidavit to the defense prior to trial, nor did it notify the defense of Ignacio's statement.
At trial, the defense called Ignacio as a witness, and during cross-examination the government questioned him regarding Altamirano-Ramirez's ...