United States v. Dmytro Patiutka

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4932
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
DMYTRO PATIUTKA, a/k/a Alex Parker, a/k/a Roman Pak, a/k/a
Andrii Patiutka,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:14-cr-00014-MFU-1)
Argued: September 15, 2015 Decided: October 23, 2015
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Agee joined.
ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellant. Andrea
Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellee. ON BRIEF: Anthony P.
Giorno, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellant.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
The district court granted Dmytro Patiutka’s motion to
suppress evidence flowing from a warrantless search of his
vehicle. The Government challenges that ruling, asserting that
the search was incident to an arrest or, in the alternative,
fell within the automobile exception to the Fourth Amendment’s
warrant requirement. We affirm.
I.
On April 27, 2013, Virginia State Trooper G.S. Cox, while
patrolling Interstate 81, observed an SUV with tinted windows
and a tinted license plate cover, which potentially violated
Virginia law. When the driver failed to maintain lane, the
trooper pulled the car over. A video camera on the patrol car’s
dashboard recorded the stop.
Trooper Cox approached the car and asked the driver for his
license. The driver, Dmytro Patiutka, handed him a Lithuanian
driver’s license with the name “Roman Pak.” The trooper then
asked Patiutka for his name and date of birth and later
testified that Patiutka gave him a date that differed by eight
years from the date on the driver’s license. Although Trooper
Cox testified that at this point he “believed [Patiutka] was
lying to [him] about his identity,” which he understood to be an
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arrestable offense in Virginia, the trooper asked no follow-up
questions about Patiutka’s purported lie.
Instead, Trooper Cox ran the information supplied by
Patiutka through police databases and, after receiving no
results, returned Patiutka’s license, gave him verbal warnings
for the tint violations, and told Patiutka to “have a nice day”
and that he was “free to go.” Trooper Cox later testified that,
“[i]n [his] mind, [Patiutka] wasn’t free to leave.” Rather, the
trooper intended to reengage Patiutka in conversation and obtain
his consent to search the car.
As Patiutka began to walk back to his vehicle, Trooper Cox
asked him if he would answer “a couple of questions real quick.”
The trooper then asked for and believed he received consent to
search the car, and so signaled his fellow officers, who had by
then arrived on the scene, to begin searching. As many as five
other officers participated in the search, including Trooper
Jerry Moore, a member of Trooper Cox’s unit. Trooper Moore
found a bag containing a credit card reader in the SUV’s
hatchback area and opened one of several large suitcases,
revealing four new, unopened iPads sitting on top. Meanwhile,
Patiutka asked Trooper Cox why the officers were searching his
car. Trooper Cox answered, “I asked you could I search your
car,” to which Patiutka replied, “no, close the car.” Trooper
Cox responded by announcing, “hold on, hold on.”
3
Upon hearing this, Trooper Moore stopped searching for a
moment, but then announced that he was placing Patiutka in
“investigative detention.” Based on this command, Trooper Cox
handcuffed Patiutka and took him back to the patrol car.
Trooper Moore later testified that he placed Patiutka only in
investigative detention because he did not think he had probable
cause to arrest Patiutka. But, given “the multiple iPads in the
vehicle and the credit card reader” and Trooper Cox’s conduct
(the stop and request to search), Trooper Moore believed
Patiutka was potentially involved in “criminal activity.”
The officers continued to search the SUV for approximately
fifty minutes; they found a credit card embosser, a credit card
re-encoder, and numerous blank credit cards. At the conclusion
of the search, Trooper Cox transported Patiutka to the state
police station and, during the trip, read him his Miranda
rights. At the station, Trooper Moore and two Secret Service
agents conducted interviews of Patiutka, during which he made a
number of incriminating statements.
That same day, Patiutka received traffic summonses for the
state traffic violations for which he was pulled over: improper
license plate cover, failure to maintain lane, and illegal
window tint. Eight months later, on January 13, 2014, the
Government filed a criminal complaint in federal court, charging
Patiutka with access device fraud and aggravated identity theft
4
in violation of 18 U.S.C. §§ 1029 and 1028A. On March 20, 2014,
a grand jury indicted Patiutka on these charges.
Patiutka moved to suppress the physical evidence seized
from his car as well as all statements and evidence that flowed
from the warrantless search. At the suppression hearing,
Trooper Cox testified that Patiutka gave a birth year of 1982,
eight years earlier than the 1990 date on Patiutka’s license,
and that this caused the officer to believe Patiutka “was lying
. . . about his identity.” Trooper Cox further testified that
even “if we hadn’t of [sic] found anything in the vehicle,
[Patiutka] would have ultimately been arrested for providing a
false ID.”
In the district court, the Government claimed that
Patiutka’s statements and the evidence found in his car were
admissible under numerous exceptions to the Fourth Amendment’s
warrant requirement. In a lengthy written opinion, the district
court rejected each of the Government’s asserted justifications.
The Government then filed this interlocutory appeal.
We review a district court’s legal determinations
underlying a grant of a motion to suppress de novo and its
factual findings for clear error. United States v. Black, 707
F.3d 531, 537 (4th Cir. 2013). The Fourth Amendment protects
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
5
seizures.” U.S. Const. amend. IV. Warrantless searches are
presumptively unreasonable “except in certain carefully defined
classes of cases.” Cady v. Dombrowski, 413 U.S. 433, 439 (1973)
(internal quotation marks omitted).
Before us, the Government narrows its focus and asserts
that two exceptions to the warrant requirement justified the
warrantless search of Patiutka’s car. We consider each in turn.
II.
First, the Government argues that the search was incident
to Patiutka’s arrest.
Police officers may search a vehicle incident to a recent
occupant’s arrest when “the arrestee is within reaching distance
of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the
offense of arrest.” Arizona v. Gant, 556 U.S. 332, 351 (2009).
A search may begin prior to an arrest, and still be incident to
that arrest. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980);
United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991).
However, police must have probable cause to arrest prior to
beginning a search. See United States v. Han, 74 F.3d 537, 541
(4th Cir. 1996). This requirement ensures that the fruits of a
warrantless search will not serve as justification for the
6
arrest. See, e.g., Sibron v. New York, 392 U.S. 40, 62-63
(1968).
We note at the outset that the Government does not contend
that the police conducted a search incident to Patiutka’s arrest
for access device fraud and aggravated identity theft, even
though the challenged portion of the search (after withdrawal of
consent) was initiated and conducted to obtain evidence of those
crimes. Instead, the Government argues that Trooper Cox had
probable cause to arrest Patiutka for the state offense of
providing false identity information and that the search was
valid as incident to Patiutka’s arrest on that charge. Assuming
that the record permits such an argument, and that the offense
justifying a search incident to arrest can be different from the
offense for which a defendant was arrested, the argument still
fails. 1 This is so because probable cause did not exist for the
officers to arrest Patiutka for any offense at the moment he
revoked consent.
1The district court found that Patiutka was not arrested
for the state false identity offense. And though the Government
maintains on appeal that Patiutka was indeed arrested for the
state offense of presenting “false identity information to a law
enforcement officer,” the Government concedes that the documents
evidencing that arrest “were not presented during the
suppression hearing proceedings.” Appellant’s Br. at 7 n.4.
Moreover, we have no need to address the question of whether an
offense justifying a search may differ from the offense for
which a defendant was arrested, and decline to do so.
7
The district court’s factual findings forestall the
Government’s argument that the challenged search was incident to
any arrest of Patiutka, as the court did not credit Trooper
Cox’s testimony as to the factual basis of his asserted
authority to arrest Patiutka prior to the search. Rather, the
court found the trooper’s testimony unconvincing when weighed
against verifiable evidence indicating that the trooper did not
have probable cause to arrest Patiutka at that time. We can
reverse only if this finding was clearly erroneous. Moreover,
we must view the facts in the record in the light most favorable
to Patiutka because he prevailed before the district court.
United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014). We
owe “particular[] defer[ence] to a district court’s credibility
determinations, for ‘it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.’” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (quoting United States v. Murray, 65 F.3d
1161, 1169 (4th Cir. 1995)).
At the suppression hearing, the Government had the burden
of proving by a preponderance of the evidence that Trooper Cox
had probable cause to arrest Patiutka. See Coolidge v. New
Hampshire, 403 U.S. 443, 455 (1971). In concluding that the
Government did not meet its burden, the district court relied on
the video of the stop. The court noted that the video showed
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that Trooper Cox asked Patiutka no follow-up questions regarding
Patiutka’s purported lie as to his birthdate, but rather handed
the license back to Patiutka and told him he was “free to go.”
The video also showed that after Trooper Cox asked for (and
believed he received) Patiutka’s consent to search, the trooper
immediately called off the search when Patiutka objected,
suggesting that the only basis for the search was consent. And
the video did not substantiate the existence of the primary
evidence the Government relied on in asserting that Trooper Cox
did have probable cause. That evidence was the trooper’s
testimony that Patiutka supplied a different birthdate than the
date on his license. The district court found that, because of
highway traffic noise, a barking police dog, and Patiutka’s
pronounced foreign accent, the video did not reveal exactly what
Patiutka said was his birthdate. For these reasons, the court
concluded, “I don’t believe there’s sufficient probable cause to
arrest him based on . . . the evidence that I have seen after
hearing the officer’s testimony and after viewing that video.”
We discern no error in this finding.
We hasten to add it does not follow that we believe, or
that the district court believed, that Trooper Cox lied about
the date. Even Patiutka argues only that the trooper was
“mistaken and that probable cause didn’t exist at that time.”
The district court expressly held that it did not “doubt the
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good faith” of the troopers. The court simply concluded, as it
was entitled to do on these facts, that the Government had
failed to meet its burden of proof.
The absence of probable cause to arrest Patiutka for any
offense 2 at the moment Trooper Moore decided to continue the
search without Patiutka’s consent renders the search incident to
arrest exception inapplicable here. See, e.g., Han, 74 F.3d at
541. Probable cause to arrest arose only after the officers
discovered the blank credit cards, credit card embosser, and
other evidence of identity theft and fraud. A finding that this
search was incident to Patiutka’s subsequent arrest would permit
the Government “to justify the arrest by the search and at the
same time to justify the search by the arrest.” Johnson v.
United States, 333 U.S. 10, 16-17 (1948). The Fourth Amendment
forbids this type of unreasonable search.
III.
Next, the Government argues that the warrantless search was
valid under the automobile exception to the warrant requirement.
2
As noted above, the Government does not argue that at the
time Patiutka revoked consent the officers had probable cause to
arrest him for any offense other than the false identity
offense. Thus, the Government does not contend that it had
probable cause to arrest Patiutka for access device fraud or
aggravated identity theft, the offenses for which he was later
charged.
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A.
Police officers do not need a warrant to search an
automobile if they have probable cause to believe it contains
evidence of criminal activity. United States v. Ross, 456 U.S.
798, 809 (1982). Probable cause exists when “the known facts
and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime
will be found.” Ornelas v. United States, 517 U.S. 690, 696
(1996). Probable cause deals in probabilities that “are not
technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.” Brinegar v. United States, 338 U.S. 160, 175
(1949). Under the automobile exception, police officers may
search for evidence of any crime, not just of the offense that
provided the basis for the arrest. United States v. Baker, 719
F.3d 313, 319 (4th Cir. 2013).
When Trooper Moore decided to continue to search the SUV
without Patiutka’s consent, the district court found that he was
aware of the following facts: “(1) for reasons unknown to
[Trooper Moore], Trooper Cox [had] requested a search of the
vehicle; (2) there were three suitcases in the back of
Patiutka’s vehicle; (3) one bag contained a credit card reader;
[and] (4) a larger suitcase had four new iPads on top of it.”
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The court concluded that these facts did not provide an
objective basis for probable cause to search.
We agree. A driver could legally possess the credit card
reader and iPads that Trooper Moore had uncovered at that point.
While the trooper found their combination and placement
suspicious, innocuous explanations for a driver’s possession of
these items abound. For example, many small business owners now
utilize iPads with attached credit card readers in lieu of
traditional point-of-sale systems. To be sure, that is not how
Patiutka intended to employ the iPads, but neither Trooper Moore
nor any of the officers present asked Patiutka about the items. 3
Like the district court, we acknowledge that the facts
known to Trooper Moore when he ordered the search to continue
“may well meet the standard for a reasonable articulable
suspicion.” If so, the correct course of action would have been
for the troopers to question Patiutka about the contents
uncovered during the consensual search. Additional information
arising out of this conversation could potentially have
supported probable cause to search. But neither Trooper Moore
nor any of the other troopers participating in the search paused
3
Additionally, Trooper Moore could not infer evidence of a
basis for a warrantless search from the fact that Trooper Cox
had asked Patiutka if the police could search the car. Trooper
Cox testified that he may ask permission to search a car when he
lacks probable cause.
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to speak with Patiutka before placing him in handcuffs and
resuming the search. Because the automobile exception requires
that the police have probable cause (not just reasonable
articulable suspicion) to search, the exception does not apply
here.
B.
The Government contends that an additional piece of
information provided Trooper Moore with sufficient knowledge to
support probable cause to search. Invoking the collective-
knowledge doctrine, the Government insists that Trooper Cox’s
suspicions regarding Patiutka’s potentially false identification
should be imputed to Trooper Moore. The Government’s theory is
that, when combined with the other pieces of information known
independently to Trooper Moore, these facts tip the scale in
favor of probable cause. The district court declined to apply
the collective-knowledge doctrine here because the officers
“simply did not communicate with each other.” We agree with the
district court that the doctrine does not save this search, but
for the alternative reason that, as we explained above, Trooper
Cox had no probable cause to communicate to a fellow officer.
The collective-knowledge doctrine “simply directs [a court]
to substitute the knowledge of the instructing officer or
officers for the knowledge of the acting officer; it does not
permit [a court] to aggregate bits and pieces of information
13
from among myriad officers.” United States v. Massenburg, 654
F.3d 480, 493 (4th Cir. 2011). In Massenburg, we rejected a
more expansive version of the doctrine that the Government had
proposed and that several circuits have adopted because “[u]nder
th[at] proposed rule, it would be irrelevant that no officer had
sufficient information to justify a search or seizure.” Id.Thus in Massenburg we held that the instructing officer alone
must have sufficient information to justify an arrest or search
in order for the acting officer to benefit from the collective-
knowledge doctrine. Id. at 495-96.
In sum, the same credibility determination by the district
court that precludes application of the search incident to
arrest exception also thwarts the Government’s collective-
knowledge argument. Here the district court found that the
instructing officer, Trooper Cox, did not have probable cause to
arrest Patiutka when he initiated the search. Rather, the
search proceeded solely on the basis of Patiutka’s consent.
When Patiutka revoked his consent, Trooper Cox halted the
search, indicating to the other officers that a basis for the
search no longer existed. The record evidence is clear that
Trooper Moore understood that Trooper Cox, the instructing
officer, had halted the search. Nonetheless, Trooper Moore
determined to continue the search. Massenburg teaches that “the
only officer making a reasonable suspicion or probable cause
14
determination is the instructing officer.” 654 F.3d at 495 n.6.
Here, the instructing officer, Trooper Cox, made no such
determination. Instead, Trooper Cox instructed his fellow
officers to search the SUV when he believed he had Patiutka’s
consent and immediately called off the search when he understood
that he no longer had consent. Accordingly, the collective-
knowledge doctrine offers no assistance to the Government.
IV.
For the foregoing reasons, neither of the Government’s
proposed exceptions to the Fourth Amendment’s warrant
requirement apply here. Therefore, the judgment of the district
court granting Dmytro Patiutka’s motion to suppress is
AFFIRMED.
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