United States v. Perez ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1121
UNITED STATES,
Appellee,
v.
GILBERT PEREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Barron, Chief Judge,
Howard and Montecalvo, Circuit Judges.
Jamesa J. Drake, with whom Drake Law LLC was on brief, for
appellant.
Brian S. Kleinbord, Assistant United States Attorney, with
whom Darcie N. McElwee, United States Attorney, was on brief, for
appellee.
December 28, 2023
BARRON, Chief Judge. Gilbert Perez seeks to vacate his
federal drug conviction on the ground that the United States
District Court for the District of Maine wrongly denied his motion
to suppress the fruits of a warrantless search of his backpack.
The District Court rested the denial on our decision in United
States v. Eatherton, 519 F.2d 603 (1st Cir. 1975), which upheld a
similar warrantless search under the search-incident-to-arrest
exception to the warrant requirement of the Fourth Amendment to
the U.S. Constitution, id. at 609-11. Because we reject Perez's
contention that intervening decisions of the Supreme Court of the
United States have stripped Eatherton of controlling force, we
affirm the judgment of conviction.
I.
When reviewing the denial of a motion to suppress
evidence, "'we recite the facts as found by the district court,
consistent with record support,' including the testimony from the
motion hearing." United States v. Tom, 988 F.3d 95, 97 (1st Cir.
2021) (quoting United States v. Soares, 521 F.3d 117, 118 (1st
Cir. 2008) (cleaned up)). Massachusetts State Trooper Jason Conant
was conducting a patrol on the evening of August 30, 2019, when he
saw a pickup truck with Maine license plates stop in a McDonald's
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parking lot in Lawrence, Massachusetts. The driver was later
identified as Perez.
Perez exited the truck, donned a backpack, and walked
towards a residential area near the parking lot. Conant became
suspicious of the out-of-state truck, as well as Perez's behavior,
and alerted other state troopers in the area to watch for Perez.
Minutes after Perez left the parking lot, a second
Massachusetts state trooper, Shawn McIntyre, saw Perez exiting a
taxi on a nearby street. McIntyre watched Perez start to walk in
the direction of the McDonald's where the truck was parked.
McIntyre stopped the taxi and saw large quantities of
cash at the feet of the taxi's passenger. McIntyre then radioed
Conant, informing him of the cash and the suspicion that Perez had
participated in a drug transaction with the taxi's passenger.
Perez, still wearing the backpack, returned to the
McDonald's parking lot. Conant pulled his (unmarked) car into the
parking lot and exited the car. Roughly simultaneously, Conant
began to yell "state police," and Perez began to run from the
parking lot. Conant gave chase.
About twenty yards from the parking lot, Perez tripped
and fell. Conant caught up to Perez after his fall and pinned him
to the ground. A third state trooper, Ryan Dolan, pulled up in a
patrol car.
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Conant removed the backpack from Perez as Dolan was
handcuffing Perez's hands behind his back. Dolan then sat Perez
on the pavement.
After Perez was handcuffed, Conant placed the backpack
on Dolan's car and opened and searched the backpack. Perez was
not in reaching distance of the backpack when the search of the
backpack took place.
Conant discovered fentanyl and cocaine in the backpack.
Perez was then searched and formally arrested.
Perez was indicted on March 12, 2020, on a federal
drug-related charge. He moved to suppress the drugs, contending
that the backpack's search violated the Fourth Amendment.1
The government opposed the motion on the ground that the
search was constitutional under Eatherton. The government also
argued that, in any event, the search was conducted in good-faith
reliance on Eatherton. See Davis v. United States, 564 U.S. 229,
232 (2011) (holding that "[police] searches conducted in
objectively reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule").
The District Court denied Perez's motion without
reaching the good-faith issue. See United States v. Perez, Crim.
No. 2:20-CR-39-DBH-01, 2021 WL 2953671 (D. Me. July 14, 2021).
1Perez challenged several other aspects of his arrest in the
District Court but raises none of those issues on appeal.
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The District Court found that "[t]he police had probable cause to
arrest Perez when they handcuffed him," and it "treat[ed] [the
police] as having effectively arrested him then," although the
District Court also found that it was only later that Perez was
"formally" arrested. Id. at *2. The District Court separately
found, moreover, that Perez's handcuffing occurred "as" Conan
"ripped the backpack off" of Perez. Id. With that factual
predicate in place, the District Court reasoned that the search of
the backpack was lawful because, when there is probable cause for
an arrest, Eatherton allows for the warrantless "search [of] a
container found on a person being arrested," id. at *3, and our
Court had not "'unmistakably' cast Eatherton 'into disrepute,'"
id. at *4 (quoting Eulitt ex rel. Eulitt v. Me., Dep’t of Educ.,
386 F.3d 344, 349 (1st Cir. 2004)).
Perez entered a conditional guilty plea, which preserved
his right to appeal his conviction based on the District Court's
Eatherton-based denial of his motion to suppress. He then filed
this timely appeal. We review the District Court's "factual
findings for 'clear error'" and its "legal conclusions . . . de
novo." United States v. Rodríguez-Pacheco, 948 F.3d 1, 6 (1st
Cir. 2020) (quoting United States v. Camacho, 661 F.3d 718, 723-
24 (1st Cir. 2011)).
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II.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures" by providing that
"no Warrants shall issue, but upon probable cause." U.S. Const.
amend. IV. Our focus is on the exception to the Fourth Amendment's
warrant requirement for a search incident to an arrest. See United
States v. Robinson, 414 U.S. 218 (1973).
Perez does not dispute that the exception covers his
backpack's search if Eatherton remains good law. He contends only
that Eatherton does not because of either United States v.
Chadwick, 433 U.S. 1 (1977), or Arizona v. Gant, 556 U.S. 332(2009), or both together.
Under the law of the circuit doctrine, newly constituted
panels must follow the rulings of preceding panels that are
"directly (or even closely) on point," United States v. Guzman,
419 F.3d 27, 31 (1st Cir. 2005), "even where the succeeding panel
disagrees with the prior one," United States v. Guerrero, 19 F.4th
547, 552 (1st. Cir 2021). The doctrine recognizes an exception,
however, when "[a]n existing panel decision [is] undermined by
controlling authority, subsequently announced, such as an opinion
of the Supreme Court, an en banc opinion of the circuit court, or
a statutory overruling," Williams v. Ashland Eng'g Co., 45 F.3d
588, 592 (1st Cir. 1995), or when an "authority that postdates the
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original decision, although not directly controlling, nevertheless
offers a sound reason for believing that the former panel, in light
of fresh developments, would change its collective mind," United
States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (quoting
Williams, 45 F.3d at 592).
The latter exception is very limited, as it applies only
when the new authority "provides a clear and convincing basis" to
conclude that the prior panel would have changed its mind.
Guerrero, 19 F.4th at 552. For that reason, we have described
cases that trigger this exception as "hen's-teeth-rare." San Juan
Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
We begin by reviewing Eatherton and describing its
rationale. We then explain why we conclude that Eatherton still
controls.
A.
The defendant in Eatherton was Gilbert Eatherton. 519
F.2d. at 605. A suspected bank robber, he was walking down a
street while carrying a briefcase when agents of the Federal Bureau
of Investigation ("FBI") spotted him. Id. at 609.
The FBI agents called for Eatherton to come to their
car, and he did so. Id. When he was "close to the vehicle the
agents told him he was under arrest [and] instructed him to drop
the briefcase and [lie] spread eagle on the ground." Id. He
complied with the commands, and the FBI agents "thoroughly frisked"
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him, handcuffed him, and placed him in the back of their vehicle.
Id. The FBI agents then picked up the briefcase, opened it, and
found a loaded gun and three brown ski masks, all of which were
later admitted as evidence at trial. Id.
Eatherton did not dispute that there was probable cause
to arrest him, and he "concede[d] that the agents could have seized
the briefcase consonant with the [F]ourth [A]mendment." Id. at
610. But he argued that the agents "should have obtained a search
warrant before investigating [the briefcase's] contents," and
that, because the agents did not, the search of his briefcase
violated the Fourth Amendment. Id. He thus argued that the fruits
of the search of the briefcase had to be suppressed because that
search could not be justified merely by the fact of his arrest and
the right to search his person that his arrest entailed. Id.
Eatherton relied chiefly on the Supreme Court's decision
in Chimel v. California, 395 U.S. 752 (1969). There, the Court
held that the bare fact that an arrest occurred inside a home did
not justify a warrantless search of the entirety of the premises.
Id. at 763. The Court also held that although a warrantless search
of the area of the home within the "immediate control" of the
arrestee was reasonable if justified "by the need to seize weapons
and other things which might be used to assault an officer or
effect an escape" or "by the need to prevent the destruction of
evidence of the crime," these "justifications are absent where a
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search is remote in time or place from the arrest." Id. at 764(quoting Preston v. United States, 376 U.S. 364, 367 (1964)).
Eatherton argued based on Chimel that the briefcase's
search violated the Fourth Amendment because "any urgency to
inspect the interior of the briefcase was completely removed once
he had been subdued and the [brief]case removed from his possession
and beyond his possible reach." Eatherton, 519 F.2d at 610. But,
although the Eatherton panel acknowledged that there was "some
logical cogency" to the contention, id., the panel held that the
search of the briefcase's interior was reasonable.
The Eatherton panel first pointed out that Chimel had
cited "with apparent approval Draper v. United States, in which a
search virtually identical to that at issue [in Eatherton] was
upheld." Id. (citation omitted). Draper involved a criminal
defendant who had evidence admitted against him at his trial that
was obtained from the warrantless search of a bag that he was
carrying when he was arrested. 358 U.S. 307, 310 (1959).
The Eatherton panel next explained that other courts of
appeals "had little apparent difficulty" rejecting Chimel-based
arguments for prohibiting warrantless "searches identical to that
contested" by Eatherton. 519 F.2d at 610. Notably, in each of
those cases, as in Draper, the warrantlessly-searched container
was similar in size to the briefcase in Eatherton. See United
States v. Maynard, 439 F.2d 1086, 1087 (9th Cir. 1971) (rejecting
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the argument that a warrantless search of a suitcase the defendant
was carrying when arrested was unconstitutional because the search
was "incident to the lawful arrest of its carrier"); United States
v. Mehciz, 437 F.2d 145, 146-48 (9th Cir. 1971) (relying on Draper
to reject the contention that Chimel governed a warrantless search
of a suitcase carried at the time of arrest); United States ex
rel. Muhammad v. Mancusi, 432 F.2d 1046, 1047-48 (2d Cir. 1970)
(rejecting as "frivolous" a Chimel-based challenge to the
post-arrest search at a police station of a briefcase in the
"immediate possession" of the defendant at the time of the arrest
when the defendant conceded that the search "would have been proper
if [it] had been conducted at the time [and place] of his arrest").
The Eatherton panel then addressed three Supreme Court
decisions that post-dated both Chimel and the other circuits'
rulings that had upheld searches like the search of Eatherton's
briefcase: Robinson, 414 U.S. at 218; Gustafson v. Florida, 414
U.S. 260 (1973); and United States v. Edwards, 415 U.S. 800 (1974).
The Eatherton panel explained that this trio showed that the
Chimel-based challenge could not "be sustained." Eatherton, 519
F.2d at 610.
In Robinson, the Court held that the warrantless search
of a "crumpled up cigarette package" found in the "breast pocket
of the heavy coat [the arrestee] was wearing" at the time of his
arrest did not violate the Fourth Amendment, even though the
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arresting officer had neither "any subjective fear of the
[arrestee]" or any "susp[icion] that the [arrestee] was armed."
414 U.S. at 222-23, 236. The Court explained that because the
"custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment[,]" a search "of
the person" of an arrestee incident to that arrest is per se
reasonable. Id. at 235. Robinson thus rejected the contention
that a more limited pat-down -- such as the limited frisk permitted
in Terry v. Ohio, 392 U.S. 1 (1968) -- was all that was allowed
for a search incident to the arrest. See Robinson, 414 U.S. at
235. And the Court then explained that "[h]aving in the course of
a lawful search come upon the crumpled package of cigarettes, [the
officer who had conducted the search of the arrestee's person] was
entitled to inspect [the package,] and when his inspection revealed
the heroin capsules, he was entitled to seize them as 'fruits,
instrumentalities, or contraband' probative of criminal conduct."
Id. at 236 (quoting Harris v. United States, 331 U.S. 145, 154-55
(1947)).
Robinson relied on the rationales for the
search-incident-to-arrest exception to the warrant requirement to
justify the ruling that the warrantless search of the cigarette
package was reasonable. Those rationales are rooted in a concern
for officer safety, the governmental interest in the preservation
of evidence, and the diminished privacy interest of an arrestee
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due to the dominion over their person effected by the arrest
itself. See Robinson, 414 U.S. at 226; see also Riley v.
California, 573 U.S. 373, 386 (2014) ("Robinson regarded any
privacy interests retained by an individual after arrest as
significantly diminished by the fact of the arrest itself.").
In Gustafson, which was decided the same day as Robinson,
the Court went a step further than it had in Robinson. It held
that a warrantless search of a cigarette box found in the "front
coat pocket of the coat [the arrestee] was wearing" during a search
of the arrestee's person at the time of his arrest, 414 U.S. at
262, was per se reasonable under Robinson even though the search
of the cigarette box occurred after the arrestee had been placed
"in the back seat of the squad car," id. at 262 n.2, and even
though there was no "subjective fear of the [arrestee]" or
"susp[icion] that the [arrestee] was armed," id. at 266.
The defendant in Eatherton tried to distinguish Robinson
and Gustafson based on the relatively large size of his briefcase
and the fact that it was not concealed in his pocket but held in
his hand at the time of the arrest. But the Eatherton panel
concluded that "[t]he line which [Eatherton] attempts to draw
placing the briefcase beyond the search of his 'person' which
Robinson and Gustafson expressly approve is one requiring gossamer
distinctions." Eatherton, 519 F.2d at 610. And Eatherton went on
to state that "[t]here is no indication that the result in those
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cases would have been any different had the cigarette packages
been in the defendants' hands rather than in their pockets or if
they had been dropped to the ground in response to [a] police
command." Id. Moreover, Eatherton explained, "[w]hile a briefcase
may be a different order of container than a cigarette box, it is
not easy to rest a principled articulation of the reach of the
[F]ourth [A]mendment upon the distinction." Id.The Eatherton panel also noted that the defendant's
argument was "not unlike" Justice Marshall's in "his dissent to
Gustafson and Robinson." Id. The Eatherton panel then cited to
the portion of that dissent that relied on Chimel to dispute the
majority's decision to uphold the warrantless search of the
container in that case. Id. (citing Robinson, 414 U.S. at 256-58(Marshall, J., dissenting)). While the argument advanced in that
portion of Justice Marshall's dissent "may have analytical
appeal," the Eatherton panel concluded, the view set forth there
"does not presently represent the law." Id.The Eatherton panel wound up its analysis by invoking
Edwards, which was decided the year after Robinson and Gustafson.
The Court held in Edwards that the Fourth Amendment permitted the
warrantless search of clothing that an arrestee was wearing at the
time of his arrest even though the search of the clothing occurred
the day after the arrest and while the arrestee was in jail.
Edwards, 415 U.S. at 808-09. Edwards reasoned that "the legal
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arrest of a person" reduces the arrestee's expectation of privacy
in items "in his immediate possession, including his clothing."
Id. at 805, 808 (emphasis added) (quoting United States v. DeLeo,
422 F.2d 487, 493 (1st Cir. 1970)).
The Eatherton panel observed that the Court in Edwards,
"after noting that the courts of appeals have generally permitted
searches of both 'the person and the property in his immediate
possession,'" stated that "it is difficult to perceive what is
unreasonable about the police examining and holding as evidence
those personal effects of the accused that they already have in
their lawful custody as the result of a lawful arrest." Eatherton,
519 F.2d at 610 (first quoting Edwards, 415 U.S. at 803; then
quoting Edwards, 415 U.S. at 806). The search in Edwards had been
made "in the station house after an arrest," Eatherton
acknowledged. But Eatherton explained that there was no reason to
"doubt that [those observations from Edwards] apply equally to
searches in the field immediately incident to the arrest." Id.Eatherton thus held that, as the defendant in the case before it
had "conceded the agents properly seized the briefcase as . . .
incident to his arrest . . . any expectation of privacy which he
held with regard to the briefcase was taken out of 'the realm of
protection from police interest in weapons, means of escape, and
evidence.'" Id. at 610-11 (quoting Edwards, 415 U.S. at 808-09).
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B.
As this extended review of Eatherton reveals, the panel
in that case did more than determine that the rule set forth in
Robinson, Gustafson, and Edwards rather than the rule set forth in
Chimel controlled the briefcase's search. The panel also made
clear that it based that determination on the considered judgment
that, for purposes of the rule laid down in Robinson and Gustafson,
a search of a container (at least of the "order" of a briefcase,
see Eatherton, 519 F.2d at 610) in the hands of an arrestee at the
time of the arrest was no different from a search of a container
in the pocket of an arrestee at that time.2 As Eatherton put it,
a "line which [would] plac[e] the briefcase beyond the search of
[the] 'person' which Robinson and Gustafson expressly approve is
one requiring gossamer distinctions." 519 F.2d at 610. And, to
that point, the Eatherton panel explained that, although a
briefcase was of "a different order of container from a cigarette
box," it would not be "easy" to make any such distinction for the
2We understand Eatherton's statement that "[t]here is no
indication that the result in [Robinson and Gustafson] would have
been any different had the cigarette packages been . . . dropped
to the ground in response to police command," 519 F.2d at 610, to
mean only that the determination of whether an item is "of the
person" of the arrestee or in the arrestee's "area of immediate
control" is unaffected by post-arrest, police-ordered conduct.
After all, at the same time that the FBI agents told Eatherton to
drop the briefcase, they also told him he was under arrest. Id.
at 609.
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relevant Fourth Amendment purposes in a "principled" manner. Id.Eatherton then reasoned that, as a result, Edwards required the
conclusion that the briefcase's search was reasonable, given that
Edwards concluded that the search of the personal property found
on the person of the arrestee in that case was reasonable. In
that regard, Eatherton concluded based on Edwards that because
"the agents properly seized the briefcase . . . incident to
[Eatherton's] arrest. . . . any expectation of privacy which he
held with regard to the briefcase was taken out of 'the realm of
protection from police interest in weapons, means of escape, and
evidence.'" Id. at 610-11 (quoting Edwards, 415 U.S. at 808-09).
Perez does not suggest that there is any relevant
difference between his backpack and the briefcase in Eatherton or
that the backpack was not on his back when the District Court found
that he was arrested, notwithstanding that the District Court found
that he was "formally" arrested only thereafter. He thus accepts
that his appeal lacks merit if Eatherton controls. His sole
contention, therefore, is that Eatherton does not control due to
post-Eatherton developments.
C.
The post-Eatherton developments that Perez has in mind
are two Supreme Court precedents: Chadwick and Gant. He contends
that, whether separately or together, they undermine (even if they
do not overrule) Eatherton's holding that a briefcase in the hands
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of an arrestee at the time of arrest is no different from the
cigarette containers involved in Robinson and Gustafson. But we
cannot agree -- even if we account for post-Chadwick and post-Gant
out-of-circuit precedent that is at odds with Eatherton. Thus, we
conclude that Eatherton remains binding on us as a panel.3
1.
We start with Perez's arguments about Chadwick, which
was decided two years after Eatherton. Perez contends that
Chadwick is a significant intervening precedent because
Eatherton's rationale depended on the determination that there was
"no indication" that the result in either Robinson or Gustafson
"would have been any different had the cigarette packages been in
the defendants' hands rather than in their pockets or if they had
been dropped to the ground in response to police command."
Eatherton, 519 F.2d at 610. Yet, Perez asserts, Chadwick shows
that is not so.
Neither Perez nor the government addresses whether, even if
3
Eatherton does not control the outcome of this case, it is
controlled by our post-Chadwick ruling in United States v.
Maldonaldo-Espinosa, 968 F.2d 101, 104 (1st Cir. 1992) (rejecting
an argument that the search of a bag "on the table next to [the
handcuffed defendant] and within reach" could be justified only by
an exigency because "government agents, when arresting a person,
may constitutionally search an arrested person's nearby . . . bag,
without a warrant . . . whether or not [the agents] have reason to
fear that the carry-on bag contains a weapon, another threat to
their safety, or destructible evidence"). Because we conclude that
Eatherton controls here, we need not evaluate the search of Perez's
backpack under Maldonaldo-Espinosa.
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The Supreme Court held in Chadwick that the warrantless
search of an arrestee's "double-locked, 200-pound footlocker"
violated the Fourth Amendment when the search of that container
was conducted beyond "the area from within which [the arrestees]
might gain possession of a weapon or destructible evidence,"
Chadwick, 433 U.S. at 5 (quoting Chimel, 395 U.S. at 763), and was
not "justified by any other exigency," id. at 15. But nothing in
Chadwick disturbs either Robinson's ruling upholding the
warrantless search of a cigarette container in the pocket of an
arrestee at the time of the lawful arrest or Gustafson's ruling
upholding such a search even when it is performed after the
cigarette container has been removed from the arrestee's immediate
area of control.
In that regard, Chadwick expressly states that,
"[u]nlike searches of the person [under] United States v. Robinson
[and] United States v. Edwards, searches of possessions within an
arrestee's immediate control cannot be justified by any reduced
expectations of privacy caused by the arrest." 433 U.S. at 16
n.10 (emphasis added) (citations omitted). We do not read that
passage, in expressly reaffirming Robinson and Edwards, to be
silently rejecting the parts of their holdings that blessed the
searches of the personal property in those cases that was found on
the person of the defendants. Nor do we read that passage, in
reaffirming those two cases without mentioning Gustafson, to be
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silently rejecting Gustafson's extension of Robinson's rule
regarding a search of personal property on the person of the
arrestee at the time of the arrest to cover the search of such
property even after that property was no longer in the arrestee's
area of immediate control.
Moreover, nothing in Chadwick purports to address how to
treat a container that an arrestee has in hand at the time of
arrest relative to a container that an arrestee has in a pocket at
that time. In fact, Chadwick had no reason to address that
question because the arrestee was not holding the container in
Chadwick. Nor, for that same reason, did Chadwick have reason to
address whether the arrestee's dropping of such a container in
response to a police command upon arrest would change the calculus.
So, not surprisingly, Chadwick does not purport to address that
scenario either.
True, Chadwick does state that "[o]nce law enforcement
officers have reduced luggage or other personal property not
immediately associated with the person of the arrestee to their
exclusive control, and there is no longer any danger that the
arrestee might gain access to the property to seize a weapon or
destroy evidence, a search of the property is no longer an incident
of the arrest." 433 U.S. at 15 (emphasis added). But the
emphasized language shows that Chadwick's "immediate area of
control" rule does not apply to "personal property . . .
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immediately associated with the person of the arrestee," id., and
so merely operates in parallel to the holdings in Robinson,
Gustafson, and Edwards. Thus, because Chadwick does not address
what, if any, personal property carried or worn by the arrestee at
the time of the arrest beyond the cigarette packages in Robinson
and Gustafson and the clothing in Edwards constitutes "personal
property . . . immediately associated with the person of the
arrestee," Chadwick does not address whether a held briefcase like
the one in Eatherton is to be treated the way that the personal
property in those three cases was. As a result, Chadwick gives no
"indication that the result in [Robinson and Gustafson] would have
been any different had the cigarette packages been in the
defendants' hands rather than in their pockets or if they had been
dropped to the ground in response to police command." Eatherton,
519 F.2d at 610.
Simply put, Eatherton was concerned about drawing
distinctions between types of containers in an arrestee's
"immediate possession," Eatherton, 519 F.2d at 610 (quoting
Edwards, 415 at 803), at the time of arrest -- a problem that is
hardly trivial given the range of containers people may carry
beyond cigarette packages, from holsters to purses to backpacks.
But, as Chadwick had no reason to address that line-drawing
problem, it cannot offer any insight into how to resolve that
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problem. We thus do not see how Chadwick undermines Eatherton's
rationale for upholding the search of the briefcase in Eatherton.
2.
Perez does argue that Gant undermines Eatherton even if
Chadwick does not. But here, too, we disagree.
Gant relied on Chimel in holding that courts had wrongly
interpreted New York v. Belton, 453 U.S. 454 (1981), to have held
that all personal property in an automobile was categorically
searchable incident to an occupant's arrest. Gant, 556 U.S. at
348-52. Perez contends that it follows from Gant that the search
of his backpack is no different from the car search in that case.
But, Gant, like Chadwick, said nothing about whether the
rule of Robinson (as applied in Gustafson and Edwards) governs a
container that an arrestee is carrying at the time of the arrest
(or that is dropped in response to police command at that time).
Indeed, Gant did not address carried personal property at all,
because it concerned only whether a car may be searched incident
to a lawful arrest of an occupant of the car. Thus, Gant is no
different from Chadwick in the relevant respect, and so provides
no basis for our concluding that Eatherton has been stripped of
its controlling force. For, like Chadwick, Gant has literally
nothing to say about where the line should be drawn in searches
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incident to arrest when it comes to things an arrestee carries at
the time of the arrest.4
D.
The dissent appears to accept that neither Chadwick nor
Gant directly overrules Eatherton. The dissent nonetheless
contends that we still can be confident that if the panel in
Eatherton knew what we do in consequence of Chadwick and Gant,
that panel would have abandoned its hard line about the difficulty
of drawing hard lines. As the dissent sees it, the panel in that
event would have "centered its analysis around 'immediate control'
rather than shoehorning the search of a closed container into being
'of the [arrestee's] person.'" Dissent at 49. But we see no
"clear and convincing" case for that conclusion. Guerrero, 19
F.4th at 552.
Chadwick does make clear that no per se rule establishes
that "luggage" within the "immediate area of control" of an
Perez does at points argue that, under Gant, the location
4
of a container "relative to the arrestee at the time of arrest is
irrelevant" when determining whether the container can be searched
without a warrant, because all such searches should be evaluated
based on the container's location at the time of its search. But,
as Gustafson and Edwards show, the application of Robinson's
categorical rule depends, as to at least some personal property,
on the property's location at the time of the arrest and not at
the time of the search. And, as we have explained, there is
nothing in Gant that undermines Robinson, Gustafson, or Edwards.
We thus do not see how Perez's time-of-the-search contention,
insofar as it is meant to address all containers, can be reconciled
with Robinson as it was applied in Gustafson and Edwards.
- 22 -
arrestee at the time of the arrest may be warrantlessly searched.
See Chadwick, 433 U.S. at 16 n.10. Thus, Chadwick does prompt the
question of why it would be per se reasonable to search a briefcase
that is held (or dropped upon police command) by an arrestee at
the time of the arrest.
But Chadwick applied the "immediate control" test to a
container that was not carried by the arrestee at the time of the
arrest. By contrast, the Eatherton panel was addressing only how
to treat a container that an arrestee was carrying at that time,
so the Eatherton panel did not purport to suggest that the Robinson
rule would apply to nearby containers not carried by the arrestee
at the time of the arrest. As a result, Chadwick fails to provide
a clear and convincing reason for us to conclude that the Eatherton
panel would have reversed course had it known about Chadwick.
That is especially so given that Chadwick, in a passage
that the dissent mentions but otherwise ignores, expressly
distinguishes searches of personal property "immediately
associated" with the person of the arrestee (like the personal
property at issue in Robinson, Gustafson, and Edwards) from
searches of personal property of the arrestee that is merely within
the "immediate control" of the arrestee. Id. at 15. For, because
of that distinction, Chadwick did not address whether principled
lines could be drawn in this context between types of containers
that are carried by the arrestee at the time of arrest -- whether
- 23 -
those types of containers are cigarette packs, wallets, purses,
fanny packs, holsters, or briefcases. Yet Eatherton's clearly
expressed concern was that such lines could not be drawn. See
Eatherton, 519 F.2d at 610.
Gant similarly offers no relevant insight into the
proper way to resolve the line-drawing problem that troubled the
Eatherton panel. Because Gant addresses only searches of
automobiles, it says nothing about what distinctions might be
tenable when it comes to containers that an arrestee is carrying
at the time of the arrest.
We thus fail to see how we could be confident that
Chadwick or Gant -- or even the two taken together -- would have
led the Eatherton panel to "center" its analysis of the briefcase
on the "immediate control" question. Were the panel to have done
so, it would have been forced to draw the very distinctions between
the types of carried containers that it concluded were too
"gossamer" to make. Eatherton, 519 F.2d at 610. But not a word
in either Chadwick or Gant would give the Eatherton panel reason
to think that, contrary to the panel's initial assessment,
distinctions of substance as to such containers could be made in
a "principled" manner. See id.Of course, the dissent is right that, in the wake of
Chadwick and Gant, other circuits have drawn the kinds of
distinctions that Eatherton refused to make. See United States v.
- 24 -
Knapp, 917 F.3d 1161, 1168 (10th Cir. 2019) (holding that the
search of a purse was governed by the Chimel standard because the
purse "was not concealed under or within [the defendant's]
clothing" and "was easily capable of separation from her person");
United States v. Shakir, 616 F.3d 315, 321 (3rd Cir. 2010) ("[A]
search is permissible incident to a suspect's arrest when, under
all the circumstances, there remains a reasonable possibility that
the arrestee could access a weapon or destructible evidence in the
container or area being searched."). But post-Eatherton precedent
is not uniformly at odds with Eatherton, as even the dissent
acknowledges in describing how other circuits reacted to
Chadwick -- at least prior to Gant. See Dissent at 39.
Indeed, some circuits after Chadwick but before Gant
appeared to follow Eatherton's lead in categorizing certain
carried items as "of the person." Two months after Chadwick was
decided, for example, the Fourth Circuit assumed that warrantless
searches of objects carried in an arrestee's hands were permissible
as searches "of the person incidental to an arrest." United States
v. Wyatt, 561 F.2d 1388, 1391 (4th Cir. 1977) (search of a notebook
that arrestee retrieved from his car after being arrested). And
four years later, in United States v. Graham, the Seventh Circuit
explained that a "shoulder purse carried by a person at the time
he is stopped lies within the scope of a warrant authorizing the
search of his person." 638 F.2d 1111, 1114 (7th Cir. 1981).
- 25 -
Although the question in Graham was whether the purse
was "of the person" for purposes of a search warrant authorizing
a search of the person, and there was no issue of a warrantless
search incident to an arrest, the Seventh Circuit's reasoning
nevertheless aligns neatly with Eatherton's. As the Seventh
Circuit explained, "[c]ontainers . . . while appended to the body,
are so closely associated with the person that they are identified
with and included within the concept of one's person. To hold
differently would be to narrow the scope of a search of one's
person to a point at which it would have little meaning." Id.And almost two decades later, the Eighth Circuit followed the
Seventh Circuit's lead and explained that a purse, for purposes of
the search-incident-to-arrest exception, was an object
"immediately associated" with one's person, even though the purse
in that case was also within the arrestee's area of "immediate
control." Curd v. City Court, 141 F.3d 839, 843-44 (8th Cir.
1998). Indeed, the Eighth Circuit agreed "with the general view"
of other courts that "concluded that a purse, like a wallet, is an
object 'immediately associated' with the person." Id. (citations
omitted).5
5To be sure, four months later, the Eighth Circuit approved
a backpack search because "the search of his person and backpack
was lawful as a search incident to arrest," seemingly
distinguishing "person" from "backpack" and citing a case for the
idea that possessions within "immediate control" can be searched.
United States v. Oakley, 153 F.3d 696, 698 (8th Cir. 1998).
- 26 -
Thus, to the extent that post-Chadwick precedents from
sister circuits may shed light on what the Eatherton panel would
have done with the benefit of them, we do not see how the pre-Gant
precedents of that ilk do. Even though some of those post-Chadwick
but pre-Gant precedents adopt the dissent's position, these
precedents are, as a group, too varied to justify application of
the second exception to the law-of-the-circuit doctrine.
The dissent does also cite to post-Gant sister-circuit
cases that extend Gant to non-vehicle contexts. See, e.g., United
States v. Davis, 997 F.3d 191, 193 (4th Cir. 2021) ("Gant applies
beyond the automobile context to the search of a backpack.");
United States v. Knapp, 917 F.3d 1161, 1168 (10th Cir. 2019)
("[A]lthough Gant specifically addressed the search of an
automobile, its principles apply more broadly."); United States v.
Cook, 808 F.3d 1195, 1199 n.1 (9th Cir. 2015) ("We do not read
Gant's holding as limited only to automobile searches because the
Court tethered its rational to the concerns articulated in Chimel,
which involved a search of an arrestee's home."); Shakir, 616 F.3d
at 318 ("[T]he Government contends that the rule of Gant applies
only to vehicle searches. We do not read Gant so narrowly.").
But these out-of-circuit cases also fail to show what is required
to justify applying the second exception to the law-of-the-circuit
doctrine.
- 27 -
Even after Gant, the Supreme Court recognized in Riley
v. California that "[l]ower courts applying Robinson and Chimel
. . . have approved searches of a variety of personal items carried
by an arrestee" and cited to a case where the D.C. Circuit upheld
the search of a purse incident to the arrest of its owner. 573
U.S. 373, 392-93 (2014) (citing, inter alia, United States v. Lee,
501 F.2d 890, 892 (D.C. Cir. 1974)). And Riley repeatedly
described Gant as a case involving automobile searches without in
any way suggesting that Gant had worked a reformation of Robinson's
rule for searches of at least some personal property on the person
of the arrestee at the time of the arrest. See 573 U.S. at 398
("But Gant relied on 'circumstances unique to the vehicle context'"
(quoting Gant, 556 U.S. at 343)); id. at 385 ("Gant added . . . an
independent exception for a warrantless search of a vehicle's
passenger compartment . . . . That exception stems not from Chimel
. . . but from 'circumstances unique to the vehicle context.'"
(quoting Gant, 556 U.S. at 343)). Thus, the post-Gant cases from
sister circuits do not show in a clear and convincing way that the
Eatherton panel -- with the benefit of Gant -- would have ruled
the same way that those circuits had.
We note, too, that Riley made its observation about how
other circuits had applied Robinson post-Chadwick while addressing
whether the rule of Robinson extends to the search of the data on
an arrestee's carried cellphone. Riley, 573 U.S. at 392-93. Yet,
- 28 -
in doing so, the Court both expressly reaffirmed that Robinson
survived Chadwick as to at least some personal property on the
person of the arrestee at the time of arrest, id. at 384, 394, and
highlighted the fact that Chadwick expressly exempted from its
"immediate control" test "personal property . . . immediately
associated with the person of the arrestee[,]" id. at 384 (first
alteration in original) (quoting Chadwick, 433 U.S. at 15).
Finally, although Riley carefully explained that the
officer-safety, evidence-collection, and diminished-privacy
rationales for Robinson's rule did not apply to a cell phone's
data, the Court said nothing in doing so that "clear[ly] and
convincing[ly]" indicates, Guerrero, 19 F.4th at 552, that
Robinson's rule has no application to a container that is of the
same "order" as a briefcase, Eatherton, 519 F.2d at 610. Riley
does suggest that, based on those rationales, a 200-pound
double-locked storage trunk may fall outside Robinson's rule even
if the arrestee happens to be dragging the trunk along behind him.
See Riley, 573 U.S. at 394. But Eatherton did not itself suggest
otherwise. Rather, Eatherton held only that a briefcase that the
arrestee was carrying at the time of the arrest fell within
Robinson's rule because the distinction between such a container
when held in hand and a cigarette package when carried in a pocket
was "gossamer" and because it was "not easy to rest a principled
- 29 -
articulation of the reach of the [F]ourth [A]mendment upon the
distinction." Eatherton, 519 F.2d at 610.
We note, too, that Riley's comment about the potential
exclusion of the dragged trunk from Robinson's rule was based on
the notion that "[m]ost people cannot lug around" a trunk
containing "every piece of mail . . . every picture . . . or every
book or article they have read" and on the observation that "nor
would they have any reason to attempt to do so." Id. at 393-94.
Yet, of course, most people can carry a briefcase and often have
reason to do so. Indeed, Perez himself does not argue that Riley
is the case that would have led the Eatherton panel to rule other
than it did, as he contends only that Riley merely excluded digital
content from Robinson's rule.
E.
We close by addressing what may be our key point of
disagreement with our dissenting colleague -- the proper scope of
the second exception to the law-of-the-circuit doctrine. As we
see it, the whole point of the doctrine is to ensure that
individual panels of our court do not -- in an ad hoc
way -- second-guess prior circuit precedents just because the
panels are convinced that those precedents are wrong. Thus, the
determination of whether a prior panel decision binds a future
panel cannot depend on whether there are sound reasons to conclude
that the prior panel got it wrong. Yet, the post-Eatherton body
- 30 -
of precedent that the dissent invokes shows, in our view, that
there are merely reasons of that sort when it comes to Eatherton,
as that body of caselaw fails to provide "a clear and convincing
basis to believe that the [Eatherton] panel would have decided the
issue differently." Guerrero, 19 F.4th at 552.
A comparison of this case with Guerrero -- which is our
most recent case to find the second exception to the
law-of-the-circuit doctrine to be satisfied -- underscores the
point. In finding the second exception to the doctrine applicable
there, we relied on an unbroken string of intervening Supreme Court
precedents. Id. at 555-57. Those precedents, we explained, each
had made sweeping statements that contradicted the very rationale
that the prior panel had relied on in ruling that a warrantless
search had to be subjectively and not just objectively aimed at
addressing an exigency to be lawful. See id., 19 F.4th at 554.
And while we acknowledged that none of those precedents directly
overruled the prior panel decision, we pointed out that one of
them rejected the application of a subjective test with respect to
a home search, notwithstanding that the prior panel had applied
that test to a search of an automobile. See id. at 555-56 (citing
Maryland v. Buie, 494 U.S. 325 (1990)). We thus explained that,
given the heightened privacy interests at stake in home searches,
it would be most strange to conclude that the prior panel would
stick with its position that a subjective test had to be used for
- 31 -
a search of a car if that panel had the benefit of the intervening
Supreme Court precedent. See id. at 557.
Here, by contrast, the relevant intervening Supreme
Court precedents are Chadwick and Gant -- neither of which even
addresses a search of personal property carried by an arrestee at
the time of the arrest, let alone whether and how to distinguish
between types of such personal property, at least as between
briefcases and cigarette packages. We thus do not see how we could
reason from either of those precedents to the determination that
there is a clear and convincing basis on which to conclude that
the Eatherton panel would have decided differently with the benefit
of knowing what we now do. And the fact that sister circuits have
relied on Chadwick and Gant to chart a different course than
Eatherton cannot provide the required clarity, as the second
exception to the law-of-the-circuit doctrine does not apply just
because several other circuits have chosen not to follow one of
our prior rulings.
Accordingly, we conclude that, under the
law-of-the-circuit doctrine, the en banc process supplies the
proper means for our Court to reconsider Eatherton in light of all
that has transpired in its wake. Through that process, the Court
as a whole rather than this single panel can examine Eatherton and
the question of whether Eatherton's line-drawing concern justifies
its decision to treat an openly carried container like a briefcase
- 32 -
the way that the Supreme Court treated the cigarette containers in
Robinson and Gustafson and the clothing in Edwards. And so, until
then, the rule laid down in Eatherton controls this case about the
things we carry, as Perez makes no argument that Eatherton can be
distinguished on the facts.6
III.
For the reasons set out above, the District Court's
judgment of conviction is affirmed.
-Dissenting Opinion Follows-
6 We do recognize that a determination that a Fourth Amendment
precedent of our court remains binding may well bear on whether
the good-faith exception to the warrant requirement applies. See
Davis, 564 U.S. at 232 ("[P]olice . . . searches conducted in
objectively reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule."). But, given the vital
role that the law-of-the-circuit doctrine plays in ensuring the
orderly process of lower court adjudication, that fact provides no
reason for us to be less strict in applying the law-of-the-circuit
doctrine than we have long been.
- 33 -
MONTECALVO, Circuit Judge, dissenting. I view United
States v. Eatherton, 519 F.2d 603 (1st Cir. 1975), differently
than the majority, particularly as to how the exception to the
law-of-the-circuit doctrine applies here. Further, applying
modern Supreme Court precedent, I would find that the search of
Perez's backpack violated his Fourth-Amendment rights. I would
also find that the good-faith exception is not applicable here.
Accordingly, and for the reasons that follow, I would reverse the
decision of the district court on Perez's motion to suppress and
vacate the judgment of conviction.
I. The Law-of-the-Circuit Doctrine
This appeal arises from the denial of a motion to
suppress the warrantless search of the backpack Perez was wearing
at the time of his arrest. As the majority notes, that search
should be viewed through the scope of "the basic rule that
'searches conducted outside the judicial process, without prior
approval by judge or magistrate are per se unreasonable under the
Fourth Amendment -- subject only to a few specifically established
and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332,
338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357
(2009)). One such exception is that of the search incident to
arrest. Id. There are two grounding principles to that exception:
(1) to protect officer safety and (2) to preserve evidence. Id.- 34 -
The development of this exception has evolved over
decades of caselaw, both in the Supreme Court and this Circuit.
To that end, as to our prior decisions, we are bound by the
law-of-the-circuit doctrine. United States v. Barbosa, 896 F.3d
60, 74 (1st Cir. 2018). However, there are exceptions to that
doctrine, as it is "neither a straightjacket nor an immutable
rule." Id. (quoting Carpenters Local Union No. 26 v. U.S. Fid. &
Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000)). One exception is
"when the holding of a previous panel is contradicted by subsequent
controlling authority, such as a decision by the Supreme Court, an
en banc decision of the originating court, or a statutory
overruling." Id. Another exception exists "when 'authority that
postdates the original decision, although not directly
controlling, nevertheless offers a sound reason for believing that
the former panel, in light of fresh developments, would change its
collective mind.'" Id. (quoting Williams v. Ashland Eng'g Co., 45
F.3d 588, 592 (1st Cir. 1995)).
The majority's opinion rests on a case decided by a panel
of this court nearly half a century ago: United States v.
Eatherton, 519 F.2d 603 (1st Cir. 1975). Admittedly, should
Eatherton remain good law, it is controlling here. In my view,
however, the second exception to the law-of-the-circuit doctrine,
delineated above, is applicable under these circumstances. In
light of the major developments to the search-incident-to-arrest
- 35 -
exception postdating Eatherton, including modern binding and
persuasive precedent on the propriety of warrantless searches
incident to arrest, I think that the Eatherton panel would have
come to a different conclusion. To justify this conclusion, an
analysis of Eatherton itself and a brief history of the
developments following Eatherton's publication is necessary.
A. Eatherton
As described in the majority opinion, Eatherton involved
the warrantless search of a briefcase that the arrestee was holding
when first approached by law enforcement. 519 F.2d at 609. After
the arrestee was frisked and placed in the back of a police
vehicle, the officers searched the briefcase, and the contents
were later admitted at trial. Id. The defendant challenged the
search of his briefcase as violative of his Fourth-Amendment
rights. Id. at 609-10.
The Eatherton panel noted that the appellant's strongest
support for his Fourth-Amendment challenge laid in Chimel v.
California, 395 U.S. 752 (1962); however, the panel recognized
that Chimel cited with approval to Draper v. United States, 358
U.S. 307 (1959), a case involving a "virtually identical" search
to the one at issue in Eatherton. 519 F.2d at 610. The Eatherton
panel then cited to a number of cases from our sister circuits
that, applying Chimel, upheld similar searches of closed
containers carried by the arrestee. 519 F.2d at 610 (citing United
- 36 -
States v. Maynard, 439 F.2d 1086 (9th Cir. 1971); United States v.
Mehciz, 437 F.2d 145 (9th Cir. 1971), cert. denied, 402 U.S. 974(1971); United States ex rel. Muhammad v. Mancusi, 432 F.2d 1046(2d Cir. 1970), cert. denied, 402 U.S. 911 (1971)). Lastly, the
Eatherton panel noted that the Supreme Court's then-recent
decisions in United States v. Robinson, 414 U.S. 218 (1973);
Gustafson v. Florida, 414 U.S. 260 (1973); and United States v.
Edwards, 415 U.S. 800 (1974), offered further guidance on the
Fourth-Amendment issue. 519 F.2d at 610.
Relying on this case law, the Eatherton panel determined
that differentiating between the cigarette packages in Robinson
and Gustafson and the briefcase in Eatherton "requir[ed] gossamer
distinctions." Id. at 610. The panel further held that "[w]hile
a briefcase may be a different order of container from a cigarette
box, it is not easy to rest a principled articulation of the reach
of the [F]ourth [A]mendment upon the distinction." Id. Relying
on Edwards, the Eatherton panel emphasized that once the briefcase
was "properly seized" as "incident to [the defendant's] arrest"
any expectation of privacy the defendant held was diminished. Id.
at 610-11.
B. Chadwick
After Eatherton, the Supreme Court decided United States
v. Chadwick, 433 U.S. 1 (1977). In Chadwick, the Court examined
the search of a 200-pound footlocker stowed in the trunk of the
- 37 -
defendant's car at the time of arrest. 433 U.S. at 3-4. Officers
subsequently seized the footlocker, transported it to a federal
building, and then, an hour and a half later and without a warrant,
searched the footlocker. Id. at 4. The officers had no reason to
believe the footlocker held inherently dangerous items or
contained evidence that could lose value over time. Id. Examining
the nature of the footlocker, the Court noted that "[l]uggage
contents are not open to public view . . . nor is luggage subject
to regular inspections and official scrutiny on a continuing
basis." Id. at 13. "[L]uggage is [also] intended as a repository
of personal effects." Id.Chadwick reiterated that "[t]he potential dangers
lurking in all custodial arrests make warrantless searches of items
within the 'immediate control' area reasonable without requiring
the arresting officer to calculate the probability that weapons or
destructible evidence may be involved." 433 U.S. at 14-15. But
Chadwick importantly clarified that "warrantless searches of
luggage or other property seized at the time of an arrest cannot
be justified as incident to that arrest either if the search is
remote in time or place from the arrest . . . or no exigency
exists." Id. at 15 (cleaned up). Finally, the Chadwick Court
concluded that "[o]nce law enforcement officers have reduced
luggage or other personal property not immediately associated with
the person of the arrestee to their exclusive control, and there
- 38 -
is no longer any danger that the arrestee might gain access to the
property to seize a weapon or destroy evidence, a search of that
property is no longer an incident of the arrest." Id. Put another
way, "when no exigency is shown to support the need for an
immediate search, the Warrant Clause places the line at the point
where the property to be searched comes under the exclusive
dominion of police authority." Id.C. Cases Postdating Chadwick
After Chadwick, several of our sister circuits addressed
situations involving items that an arrestee was holding or carrying
at the time of arrest and questioned the breadth of Chadwick,
reaching mixed results. See United States v. Han, 74 F.3d 537,
543 (4th Cir. 1996) (finding that, after Chadwick, "[t]he
determinative question appears to be whether the time and distance
between elimination of the danger and performance of the search
were reasonable" and holding that "when a container is within the
immediate control of a suspect at the beginning of an encounter
with law enforcement officers; and when the officers search the
container at the scene of the arrest; the Fourth Amendment does
not prohibit a reasonable delay . . . between the elimination of
danger and the search"); see also United States v. Garcia, 605
F.2d 349, 356-57 (7th Cir. 1979) (noting the "less than uniform"
application of Chadwick across the circuits).
- 39 -
In United States v. Calandrella, 605 F.2d 236 (6th Cir.
1979), cert. denied, 444 U.S. 991 (1979), the Sixth Circuit
examined a briefcase seized from the person at the time of arrest.
That court, examining Chadwick, noted that "the primary [F]ourth
[A]mendment interest [is] in the privacy of the contents of [a
container], not in the simple possession of the receptacle." Id.
at 249. Therefore, the defendant had an increased privacy interest
in the briefcase, like the footlocker in Chadwick, the "very
purpose [for which] is to transport papers and other items of an
inherently personal, private nature." Id. (internal quotations
omitted). Ultimately, the Calandrella court found that under
Chadwick, "once the agents had seized the item and reduced it to
their exclusive control there was no further danger that the
defendant would secure therefrom either a weapon or an
instrumentality of escape, or would destroy evidence contained in
the briefcase." Id. at 249, 251-52 (expressly overturning its
prior line of cases upholding searches of suitcases "even after
the item has been seized and the suspect subdued" and citing to
courts that had made similar decisions prior to Chadwick, including
Eatherton).
Several other circuits also recognized the applicability
of Chadwick to cases involving carried containers. See United
States v. Berry, 571 F.2d 2, 3 (7th Cir. 1978) (holding that "until
Chadwick, there was no reason for law enforcement officials to
- 40 -
believe that attache cases were not among those personal effects
which, under [Robinson], could be seized as part of a 'full search
of the person' incident to a lawful arrest, and which, under
[Edwards], could be searched several hours after the suspect had
been taken into custody"); see also United States v. Stewart, 595
F.2d 500, 503 (9th Cir. 1979) (finding that if Chadwick was
applicable, "it would require suppression of the contents of the
attache case"); United States v. Myers, 308 F.3d 251, 273 (3d Cir.
2002) (examining the search of a "school bag" under the immediate
control analysis and citing Chadwick's rationale).
D. Gant
Later, in Arizona v. Gant, 556 U.S. 332 (2009), the Court
revisited the search-incident-to-arrest exception. The Court once
again emphasized that the limitation on that exception "ensures
that the scope of a search incident to arrest is commensurate with
its purposes of protecting arresting officers and safeguarding any
evidence of the offense of arrest that an arrestee might conceal
or destroy." Id. at 339. Relying on the principles articulated
in Chimel, the Court reiterated that "[i]f there is no possibility
that an arrestee could reach into [an] area that law enforcement
officers seek to search, both justifications for the
search-incident-to-arrest exception are absent and the rule does
not apply." Id.- 41 -
E. Cases Postdating Gant
The decision in Gant has been instrumental in the
understanding and application of the Fourth Amendment and the
search-incident-to-arrest doctrine. After Gant, circuit courts
applied that precedent and the immediate control analysis to
containers outside of the vehicle context. See United States v.
Shakir, 616 F.3d 315, 318 (3d Cir. 2010), cert. denied, 562 U.S.
1116 (2010) (examining the search of a gym bag under the "narrowed"
scope of the search-incident-to-arrest doctrine under Gant);
United States v. Cook, 808 F.3d 1195, 1199 (9th Cir. 2015)
(applying the immediate control analysis to a backpack); United
States v. Davis, 997 F.3d 191, 193 (4th Cir. 2021) (holding that
"Gant applies beyond the automobile context to the search of a
backpack"); United States v. Knapp, 917 F.3d 1161, 1168-70 (10th
Cir. 2019) (considering whether the search of an arrestee's purse
was justified under Chimel and Gant); see also United States v.
Hill, 818 F.3d 289, 295 (7th Cir. 2016) (applying immediate control
analysis to bag); United States v. Matthews, 532 Fed. Appx. 211,
217-19 (3d Cir. 2013) (finding that the search of a backpack could
not be justified under the immediate control analysis of the
search-incident-to-arrest doctrine); cf. United States v. Perdoma,
621 F.3d 745, 750-51 (8th Cir. 2010), cert. denied, 563 U.S. 992(2011) (upholding the warrantless search of a "small bag" where
"the search of the bag occurred in close proximity to where [the
- 42 -
arrestee] was restrained" and the arrestee had already run from
officers once; but holding that a closer application of Gant was
not necessary under the circumstances). Many of these cases are
instructive as to how Gant must be applied to cases involving
carried containers.
In Shakir, the Third Circuit was faced with the
warrantless search of a gym bag initially held by an arrestee.
616 F.3d at 316. The defendant there argued that the search of
his bag was in violation of his Fourth-Amendment rights because he
was already handcuffed at the time of the search and could not
have accessed the bag. Id. at 317. In response, the government
cited several cases upholding searches conducted while an arrestee
was handcuffed. Id. However, the Third Circuit noted that the
government relied solely on pre-Gant cases. Id. at 318. The court
emphasized "Gant as refocusing [its] attention on a suspect's
ability (or inability) to access weapons or destroy evidence at
the time a search incident to arrest is conducted." Id. Thus,
the Shakir court was "left to consider, under Gant and other
relevant precedents, whether [the defendant] retained sufficient
potential access to his bag to justify a warrantless search." Id.
at 319.
In considering that question, our sister circuit
"underst[ood] Gant to stand for the proposition that police cannot
search a location or item when there is no reasonable possibility
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that the suspect might access it." Id. at 320. In accordance
with that principle, it held that "a search is permissible incident
to a suspect's arrest when, under all the circumstances, there
remains a reasonable possibility that the arrestee could access a
weapon or destructible evidence in the container or area being
searched." Id. at 321. Applying this legal standard to the facts
there, the Third Circuit concluded that the search was justified
because there was a "sufficient possibility" that the arrestee
could have gained access to the bag. Id. The court found this
even though the arrestee was handcuffed because the bag was at his
feet, he was in a public area surrounded by approximately twenty
bystanders, and there was at least one suspected confederate in
the area. Id. at 316, 321.
The Ninth Circuit confronted similar questions in
assessing the validity of a warrantless backpack search in Cook.
808 F.3d at 1199-1200. There, the arrestee was wearing a backpack
at the time the officers approached him. Id. at 1197. While the
arrestee was handcuffed on the ground, but within one to two
minutes of his arrest, officers picked up the arrestee's backpack,
which was right next to the arrestee, and conducted a twenty- or
thirty-second cursory search. Id. The officers then took the
arrestee to a more secluded area several blocks away and performed
a more thorough search of the backpack. Id. The arrestee only
challenged the validity of the first cursory search of his backpack
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immediately following his arrest. Id. at 1198. Relying on Gant,
our sister circuit found that "[t]he brief and limited nature of
the [initial] search, its immediacy to the time of arrest, and the
location of the backpack ensured that the search was 'commensurate
with its purposes of protecting arresting officers and
safeguarding any evidence of the offense of arrest that [the
arrestee] might conceal or destroy.'" Id. at 1200 (quoting Gant,
556 U.S. at 339).
In Davis, the Fourth Circuit examined the history of the
search-incident-to-arrest exception and how Gant altered its
understanding of that exception. 997 F.3d at 195-200. The Davis
court found that Gant's first holding, "that police can 'search a
vehicle incident to a recent occupant's arrest only when the
arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search'" -- a holding derived from
Chimel -- applies outside of the automobile context. Id. at 197
(quoting Gant, 556 U.S. at 343).
After establishing Gant's applicability outside of the
automobile search context, the Fourth Circuit analyzed whether the
warrantless search of a backpack was permissible under Gant. Id.
at 198. In Davis, the arrestee fled from officers while carrying
his backpack but ultimately became bogged down in a swamp with
knee-high water. Id. An officer drew his weapon and ordered the
arrestee out of the swamp. Id. The arrestee complied and dropped
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his backpack on the ground; he then laid down and was handcuffed.
Id. Two other officers arrived at the scene, and the officers
searched the backpack that was not within the arrestee's reaching
distance. Id.
The Fourth Circuit then held that the warrantless search
of the backpack was unlawful, reasoning that there was "no doubt
that [the arrestee] was secured and not within reaching distance
of his backpack when [the officer] unzipped and searched it." Id.
At the time of the search, the arrestee was face down and
handcuffed, he was outnumbered by officers three to one, and the
events had occurred in a residential area with no other people
present; the court thus had "no difficulty" in determining that
the arrestee was secured. Id. The court also emphasized that the
arrestee was not within reaching distance of the backpack at the
time of the search. Id.
F. The Impact of Modern Authority on Eatherton
In examining the above cases carefully, I agree with the
majority that we do not have a Supreme Court opinion that is
"directly on point contradicting our precedent" in Eatherton.
United States v. Wurie, 867 F.3d 28, 34 (1st Cir. 2017). However,
I remain convinced that the "less common exception" to the law-
of-the-circuit doctrine forecloses our present reliance on
Eatherton. The authorities discussed above, "although not
directly controlling, offer[] a sound reason for believing that
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the [Eatherton] panel would change its collective mind." Id. "A
Supreme Court opinion need not be directly on point to undermine
one of our opinions." United States v. Holloway, 630 F.3d 252,
258 (1st Cir. 2011). Further, a decision of the Supreme Court
"can extend through its logic beyond the specific facts of its
case." Id. (quoting Los Angeles Cnty. v. Humphries, 562 U.S. 29,
38 (2010)).
Unlike the district court, who must apply our "precedent
unless it has unmistakably been cast into disrepute by supervening
authority," the exceptions to the law-of-the-circuit doctrine
provide us with "modest" flexibility in the application of our own
precedents. Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d
344, 349 (1st Cir. 2004), abrogated on other grounds by Carson as
next friend of O.C. v. Makin, 596 U.S. 767 (2022). The majority
decision stresses that the second exception to the law-of-the-
circuit doctrine "cannot depend on whether there are sound reasons
to conclude that the prior panel got it wrong." However, the scope
of the exception applied here is not based on whether I believe
there are sound reasons to conclude that the Eatherton panel was
wrong, but rather whether there are sound reasons for believing
that the Eatherton panel would have changed its collective mind.
And this "sound reason" standard has been reiterated by this court.
See e.g., Lewis, 963 F.3d at 23; United States v. López, 890 F.3d
332, 340 (1st Cir. 2018); Wurie, 867 F.3d at 34.
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Given that scope, in my view, had the Eatherton panel
had the benefit of both Chadwick and Gant, that panel would have
changed its collective mind as to its interpretation of the
search-incident-to-arrest doctrine. As our sister circuits have
concluded, Chadwick and, perhaps even more so, Gant have
unquestionably altered our understanding of the
search-incident-to-arrest doctrine and "provide a clear and
convincing basis" to determine that the Eatherton panel too would
have come to a different conclusion on the issue. See Guerrero,
19 F.4th at 552.
Chadwick made a nuanced distinction between the reduced
expectation of privacy an arrestee has of their person as compared
to possessions within their immediate control at the time of
arrest. 433 U.S. at 16 n.10. Further, Chadwick's analysis did
not hinge on whether the possession was held by the arrestee or
was elsewhere in their vicinity. Instead, Chadwick focused on the
nature of containers as "repositor[ies] of personal effects."7 Id.7 Indeed, the Supreme Court seems to agree that the result in
Chadwick would not have been different had the arrestee been
"drag[ging] [the trunk] behind them." Riley v. California, 573
U.S. 373, 394 (2014) (acknowledging the difference between the
trunk in Chadwick -- which could hold a large number of personal
items and required a warrant to search -- and "a container the
size of [a] cigarette package" at issue in Robinson). In my view,
Riley lends support for the very line-drawing about different
carried containers that Eatherton believed it was unable to make.
The majority appears to suggest that Riley distinguishes between
personal property that is difficult to carry, either due to its
size or weight, and personal property that is commonly carried,
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at 13. Thus, although the Eatherton panel was understandably
influenced by the then-recent cases of Edwards, Robinson, and
Gustafson when assessing an arrestee's privacy interests, Chadwick
would have provided the additional context that "possessions
within an arrestee's immediate control cannot be justified by any
reduced expectations of privacy caused by the arrest." 433 U.S.
at 16 n.10 (emphasis added).
Given this understanding and Gant's refined framework
for "immediate control" searches, the Eatherton panel would have
centered its analysis around "immediate control" rather than
shoehorning the search of a closed container into being "of the
person." Specifically, I believe this modern authority would have
led the Eatherton panel to the conclusion, under Chadwick and Gant,
that searches of visible containers held or carried by an arrestee
-- like the briefcase in Eatherton -- must be treated as "immediate
such as a briefcase. See Majority at 30. I do not think this was
the Riley Court's intent. Riley notes that "[m]ost people cannot
lug around every piece of mail they have received for the past
several months, every picture they have taken, or every book or
article they have read -- nor would they have any reason to attempt
to do so." Id. at 393-94. But, the Riley Court then states that
the only way for a person to carry personal property like that
(prior to the existence of cell phones) would be to "drag behind
them a trunk of the sort held to require a search warrant in
Chadwick." Id. at 394. In my view, the Riley Court was
differentiating between certain containers that may be receptacles
for other personal property and small containers like those the
size of a cigarette package, while emphasizing that a container
like the trunk in Chadwick would have required a search warrant
just as a cell phone would. Id. at 394.
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control" searches. See Knapp, 917 F.3d at 1167 (limiting Robinson
searches to "searches of an arrestee's clothing, including
containers concealed under or within her clothing" and holding
that "visible containers in an arrestee's hand . . . are best
considered to be within the area of an arrestee's immediate
control").
Further, the parties here have not identified any
post-Gant published circuit opinions that adopted the same
approach taken in Eatherton. Indeed, we have found the opposite:
circuits that once took an Eatherton-like approach to cases
involving carried containers now applying the "immediate control"
analysis in similar circumstances. Cf. United States v. Lewis,
963 F.3d 16, 24 (1st Cir. 2020) (adhering to the law-of-the-circuit
doctrine where three sister circuits retained allegiance to this
Circuit's reasoning despite a recent Supreme Court decision);
Sanchez v. United States, 740 F.3d 47, 57 (1st Cir. 2014) (finding
that just two circuits' decisions contrary to our precedent "hardly
paint a picture of a rush to the exit so as to allow us to overrule
our own controlling precedent"). In short, the continued
application of Eatherton simply "runs counter to the strong modern
trend in the caselaw." United States v. Guerrero, 19 F.4th 547,
557 (1st Cir. 2021).
Accordingly, I find "that the gloss added by the Supreme
Court" to the search-incident-to-arrest exception requires a
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different approach than that taken by the Eatherton panel. United
States v. Rodriguez, 527 F.3d 221, 225 (1st Cir. 2008). Had the
Eatherton panel had the benefit of viewing that case "through the
prism of" Chadwick and Gant, I believe that they would have come
to a different result. Id. at 226; see Guerrero, 19 F.4th at 559
("The bottom line [] is that given the Supreme Court cases in vogue
after [our prior decision], we believe [that] panel would (if it
had the chance) reverse its view of the . . . issue 180 degrees.").
For these reasons, I would find that Eatherton is no
longer the law of the circuit. Instead, the appropriate rule under
Chadwick and Gant is that the searches of visible, closed
containers held or carried by an arrestee should be analyzed as
"immediate control" searches.
II. Fourth-Amendment Violation
Because I would hold that Eatherton is no longer the law
of the circuit and that the search of the backpack here should be
treated as an immediate control search, the next step is to
determine whether the search was nonetheless justified under the
circumstances presented. Appropriate factors to be considered in
that inquiry are: "(1) whether the arrestee is handcuffed; (2) the
relative number of arrestees and officers present; (3) the relative
positions of the arrestees, officers, and the place to be searched;
. . . (4) the ease or difficulty with which the arrestee could
gain access to the searched area"; and (5) "the degree to which
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arresting officers have separated an article from an arrestee at
the time of the search." Knapp, 917 F.3d at 1168-69.
The district court made the necessary factual findings
to support a conclusion that the search of Perez's backpack was
violative of his Fourth-Amendment rights. The district court found
that "Perez was secured in handcuffs on the ground under [one
officer's] supervision as [another officer] was searching the
backpack on the hood or roof of [one of the officer's] vehicle,
not within reaching distance of Perez, so destruction of evidence
or access to weapons was not at stake."8 Accordingly, I would find
that under the immediate control analysis, the search of Perez's
backpack was in contravention with the warrant requirement of the
Fourth Amendment and did not fall within the
search-incident-to-arrest exception.
III. Good Faith
Finding that the search of Perez's backpack violated the
Fourth Amendment, however, is not the end of the inquiry. The
8 The government has argued before us that the backpack was
near Perez at the time of the search and that "there was a
reasonable possibility that he could access the bag," and the
search was therefore justified under the immediate control
analysis. However, it has not pointed us to any support to find
that the district court's determinations regarding Perez's
inability to reach the backpack at the time of the search were
clearly erroneous. See United States v. Oquendo-Rivas, 750 F.3d
12, 16 (1st Cir. 2014) ("We assess questions of fact . . . for
clear error."). I also do not surmise any support in the record
to find a clear error in the district court's factual findings.
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Fourth Amendment "says nothing about suppressing evidence obtained
in violation of [its] command." Davis v. United States, 564 U.S.
229, 236 (2011). I must thus determine if the exclusionary rule
is applicable here. "The rule's sole purpose . . . is to deter
future Fourth[-]Amendment violations" and not to redress prior
violations. Id. at 236-37. "Our cases have thus limited the
rule's operation to situations in which this purpose is 'thought
most efficaciously served.'" Id. at 237 (quoting United States v.
Calandra, 414 U.S. 338, 348 (1974)).
"When the police exhibit 'deliberate,' 'reckless,' or
'grossly negligent' disregard for Fourth[-]Amendment rights, the
deterrent value of exclusion is strong and tends to outweigh the
resulting costs." Id. at 238 (quoting Herring v. United States,
555 U.S. 135, 144 (2009)). On the other hand, "when the police
act with an objectively reasonable good-faith belief that their
conduct is lawful . . . or when their conduct involves only simple,
isolated negligence[,] . . . the deterrence rationale loses much
of its force, and exclusion cannot pay its way." Id. (internal
quotations omitted). "The government bears the burden of showing
that its officers acted with objective good faith." United States
v. Sheehan, 70 F.4th 36, 51 (1st Cir. 2023) (quoting United States
v. Brunette, 256 F.3d 14, 17 (1st Cir. 2001)).
The good-faith exception may be triggered "when the
police conduct a search in objectively reasonable reliance on
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binding judicial precedent." Davis, 564 U.S. at 239. But
importantly, this "exception is available only where the police
rely on precedent that is clear and well-settled." United States
v. Sparks, 711 F.3d 58, 64 (1st Cir. 2013) (cleaned up). "[W]here
judicial precedent does not clearly authorize a particular
practice, suppression has deterrent value because it creates an
'incentive to err on the side of constitutional behavior.'" United
States v. Bain, 874 F.3d 1, 20 (1st Cir. 2017) (quoting Sparks,
711 F.3d at 64).
Had this case fallen within the first exception to the
law-of-the-circuit doctrine -- where "the holding of a previous
panel is contradicted by subsequent controlling authority" -- the
good-faith exception would plainly not apply. See Barbosa, 896
F.3d at 74. For example, imagine a scenario where, post-Gant,
officers searched a vehicle incident to a recent occupant's arrest
after the occupant was secured and not within reaching distance of
the passenger compartment and without probable cause that the
vehicle contained evidence of the offense of arrest. Regardless
of whether prior circuit law allowed this practice, that search
would be unlawful post-Gant, and the officers could not rely on
good faith.
Admittedly, when the second exception to the
law-of-the-circuit doctrine applies, as I believe it does here,
there is a much closer question as to whether the good-faith
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exception applies. Ultimately, given the deterrent value of
enforcing a regime where officers err on the side of constitutional
conduct in the face of unclear or eroded precedent, I would not
permit good faith to bar exclusion in this case.
First and foremost, for the same reasons that I find the
second exception to the law-of-the-circuit doctrine applies here,
I am of the view that Eatherton was not the kind of "clear and
well-settled" precedent that officers could reasonably rely on.
See Sparks, 711 F.3d at 64. At the very minimum, Gant -- a landmark
case in our Fourth-Amendment jurisprudence -- called into question
the continued vitality of Eatherton. It would be untenable to
require that Supreme Court holdings address virtually identical
factual scenarios before we consider our circuit precedent
undermined and reject application of the good-faith exception.
Such a requirement would be contrary to the requirement that the
precedent officers rely upon "be unequivocal" when shielding
unlawfully obtained evidence from exclusion. Sparks, 711 F.3d at
64.
Second, this conclusion aptly aligns with the very
purpose of the exclusionary rule: to deter future Fourth-Amendment
violations. Davis, 564 U.S. at 236-37. If we do not strip
precedent that falls within the second exception to the
law-of-the-circuit doctrine of its weight as forcefully as we do
in cases under the first exception, officers would be encouraged
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to adhere to shaky precedent (no matter how potentially abrogated)
until those cases are formally and explicitly overruled. Because
suppression is intended to create the "incentive to err on the
side of constitutional behavior," I think the appropriate
conclusion is that when opinions authored by the Supreme Court,
particularly landmark cases like Gant, call into question our prior
precedent, officers must conform their conduct to the more
protective reading of the Fourth Amendment laid out by the Supreme
Court. See Bain, 874 F.3d at 20 (quoting Sparks, 711 F.3d at 64).
Finally, this is not a case where "the police engage[d]
in conduct that complie[d] with existing precedent, and the law
later change[d]." United States v. Baez, 744 F.3d 30, 33 (1st
Cir. 2014). Gant was decided a decade before the search at issue
here occurred, and Chadwick's guidance on closed containers has
been binding precedent for over forty years. Cf. Sparks, 711 F.3d
at 67 (finding good faith applied where the applicable Supreme
Court case came out three years after the search at issue
occurred); United States v. Moore-Bush, 36 F.4th 320, 359 (1st
Cir. 2022) (mem.) (Barron, C.J., concurring) (concurring opinion
finding that good faith applied when the applicable Supreme Court
decision was published over one year after the search began).
Given my view of the impact of these cases on Eatherton, the
officers were required to follow the logic supplied by Gant and
Chadwick.
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For these reasons, I would conclude that the good-faith
exception is not available under the circumstances and suppression
is the proper outcome to deter future Fourth-Amendment violations.
IV. Conclusion
For the above stated reasons, I would abrogate Eatherton
to the extent it is inconsistent with this analysis, reverse the
district court's decision on the motion to suppress, vacate the
judgment of conviction, and remand for further proceedings
consistent with this opinion.
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