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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
1United States v. Turner, 926 F.2d 883 (9th Cir.), cert.
denied, 112 S.Ct. 103 (1991).
2See, 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.
3Much 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.

-5-