United States v. Travis Pope

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-10311
Plaintiff-Appellee, D.C. No.
v.  2:09-cr-00387-
TRAVIS POPE, EJG-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, Senior District Judge, Presiding
Argued and Submitted
March 15, 2012—San Francisco, California
Filed July 17, 2012
Before: J. Clifford Wallace, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
8207
UNITED STATES v. POPE 8209
COUNSEL
John Balazs, Sacramento, California, Daniel Taylor, Certified
Law Student, University of the Pacific McGeorge School of
Law, Sacramento, California, for defendant-appellant Travis
Pope.
Benjamin B. Wagner, United States Attorney, Sacramento,
California, Justin L. Lee, Special Assistant United States
Attorney, Sacramento, California, for appellee the United
States of America.
OPINION
BEA, Circuit Judge:
Defendant-appellant Travis Pope appeals from the denial of
his motion to suppress evidence of his possession of mari-
juana. Pope argues that an officer’s two separate commands
directing him to empty his pockets each constituted illegal
8210 UNITED STATES v. POPE
searches in violation of the Fourth Amendment to the United
States Constitution. These arguments fail.
Because Pope did not comply with the officer’s first com-
mand, the command did not cause an intrusion upon Pope’s
reasonable expectation of privacy in the contents of his pock-
ets. Thus, it was not a search. The officer’s second command,
with which Pope complied, was a search within the meaning
of the Fourth Amendment. However, the search was not ille-
gal because it was supported by probable cause and because
exigent circumstances justified searching Pope without a war-
rant. Accordingly, we affirm.
I. Factual and Procedural Background
The material facts of this case are undisputed and were cap-
tured on a video recording of the incident. On August 16,
2009, Forest Law Enforcement Officer Ken Marcus drove to
a large gathering of people in the El Dorado National Forest
after receiving reports of loud music and use of a public
address system. He was the only officer at the scene.
Pope approached Officer Marcus after Officer Marcus had
placed one of Pope’s passengers in the back of the officer’s
patrol car. From his observation of Pope, Officer Marcus
almost immediately formed the belief that Pope was under the
influence of marijuana. Officer Marcus asked Pope if he had
been smoking marijuana, and Pope admitted that he had. Offi-
cer Marcus then asked Pope if he had any marijuana “on
him.” Pope denied this. Officer Marcus then ordered Pope to
empty his pockets. Although Pope’s hands were close to his
pockets, he made no move to empty them. Officer Marcus
asked him again if he had any marijuana in his possession.
This time, Pope admitted that he did. Officer Marcus then
directed Pope to place the marijuana on the hood of the patrol
car. In response, Pope produced marijuana from his pockets
and placed it on the hood of the patrol car. Officer Marcus
UNITED STATES v. POPE 8211
cited Pope for possession of marijuana and allowed him to
leave.
The government filed an information charging Pope with
one count of misdemeanor possession of marijuana in viola-
tion of 21 U.S.C. § 844(a). Before the magistrate judge, Pope
moved to suppress evidence of the marijuana he had produced
from his pocket, arguing that it was the product of an illegal
search. The magistrate judge denied Pope’s motion on the
grounds that the first command for Pope to empty his pockets
was not a search and that the second command (coupled with
Pope’s compliance) was a search but that it did not violate the
Fourth Amendment because it was a search incident to arrest.
Pope then pleaded guilty but reserved his right to appeal the
denial of his suppression motion to the district court. The dis-
trict court affirmed the magistrate court’s denial of Pope’s
motion to suppress, but on slightly different grounds, holding
that the first command was a search but that it was supported
by probable cause and made incident to arrest. Pope appealed
the district court’s order.
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. “We review
the district court’s denial of [defendant’s] motion to suppress
evidence de novo; the district court’s factual findings are
reviewed for clear error.” United States v. Willis, 431 F.3d
709, 713 n.3 (9th Cir. 2005). “We may affirm on any basis
supported by the record even if the district court did not rely
on that basis.” United States v. Washington, 969 F.2d 752,
755 (9th Cir. 1992) (citation and internal quotation marks
omitted).
III. Analysis
The United States Supreme Court has recently restated “the
basic rule that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
8212 UNITED STATES v. POPE
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated excep-
tions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (citation
and internal quotation marks omitted); see U.S. Const. amend.
IV.
Pope raises several issues on appeal that center on Officer
Marcus’ initial and second commands for Pope to empty his
pockets. Pope first argues that the initial command, by itself,
was a Fourth Amendment search and illegal unless executed
with a warrant or under an exception to the warrant require-
ment. Pope then argues that the district court erred in holding
that this search was conducted with probable cause. Last,
Pope argues that the warrantless search of his person, whether
based on the initial or subsequent command, does not qualify
for the search-incident-to-lawful-arrest exception because
there was no arrest.
The government contends that the initial command for
Pope to empty his pockets was not a search because the com-
mand produced nothing; there was no infringement upon
Pope’s reasonable expectations of privacy. We agree. Next,
the government concedes that the second command was a
search, but argues it is excepted from the warrant requirement
as a search incident to arrest. We agree that it is excepted
from the warrant requirement but on the different ground that
probable cause to arrest and exigent circumstances justified
the search.
We address each of Officer Marcus’ commands in turn to
determine whether a Fourth Amendment search occurred and,
if so, whether an exception to the warrant requirement
applies.
A. Officer Marcus’ initial command
[1] A Fourth Amendment “search” occurs when the gov-
ernment infringes on a subjective expectation of privacy that
UNITED STATES v. POPE 8213
society is prepared to recognize as reasonable. Katz v. United
States, 389 U.S. 347, 360-61 (1967) (Harlan, J., concurring).
The existence of a “search” is not dependent upon “the pres-
ence or absence of a physical intrusion into any given enclo-
sure.” Id. at 353 (majority opinion); cf. United States v. Jones,
132 S. Ct. 945, 949-50 (2012) (holding GPS tracking of car
was unconstitutional, comparing the “property-based” or
trespass-based approach with the Katz “reasonable expecta-
tion of privacy” approach to determine whether a Fourth
Amendment search has occurred, and holding that either may
lead to the conclusion that a search occurred).
[2] The government concedes that Pope had a reasonable
expectation of privacy in the contents of his pockets. The
question, however, is whether a command to empty one’s
pockets intrudes on that reasonable expectation of privacy
when the suspect does not comply with the command. We
conclude it does not.1 Pope did nothing to comply with Offi-
cer Marcus’ initial command and thus nothing that was not
already exposed to the public was revealed. Neither Officer
Marcus nor his verbal command produced any invasion of
privacy, whether based on societal expectations or physical
trespass. Therefore, Officer Marcus’ initial command, without
compliance, did not effect a search under the Fourth Amend-
ment. Cf. California v. Hodari D., 499 U.S. 621, 629 (1991)
1
The district court was less than clear in its holding that the initial com-
mand was a “search which was supported by probable cause and incident
to arrest.” The district court stated that Pope “makes much ado about the
initial order to empty his pockets,” and that “it is clear . . . that [Pope’s]
reasonable expectation of privacy evaporated once he admitted that he was
in possession of marijuana. That fact, combined with the officer’s observa-
tions of defendant’s intoxicated state, created probable cause . . . .” Pope
correctly points out that this language shows that the district court errone-
ously relied on the statements that came after the officer first told Pope
that he needed to empty his pockets. This distinction is irrelevant, how-
ever, as we affirm on the alternative ground supported by the record that
the initial command did not effect a search. See Washington, 969 F.2d at
755.
8214 UNITED STATES v. POPE
(holding no Fourth Amendment seizure occurred when juve-
nile did not comply with officer’s command to halt).
While this case presents a question of first impression, we
conclude our decision in United States v. Winsor, 846 F.2d
1569 (1988) (en banc) is instructive. In Winsor, we held that
police effected a search when they gained visual entry into a
hotel room through a door that was opened at their command.
Id. at 1573. The suspect in Winsor did not open his door vol-
untarily, but rather “in response to a claim of lawful authori-
ty.” Id. Also, the fact that the police did not physically enter
the room was irrelevant; visual access to a private space was
sufficient to consummate the search. Id. at 1572.
[3] Winsor supports the proposition that a Fourth Amend-
ment search occurs when police command a person to reveal
something in which he would otherwise have a reasonable
expectation of privacy and that thing or that area is revealed
as a result of the command. Had Winsor refused to open the
door, the police would not have gained access to his room by
the command alone. They would have had to do something
more to execute the search. In the present case, Officer Mar-
cus’ first command for Pope to empty his pockets had the
potential to become a search. However, unlike the suspect in
Winsor, Pope did not comply with Officer Marcus’ command.
That is, Officer Marcus’ first attempt to discover the contents
of Pope’s pockets failed.
Pope argues, however, that Officer Marcus’ initial com-
mand constituted a search regardless of whether he complied
with the order. He relies on United States v. Chatman, 573
F.2d 565 (9th Cir. 1997). We are not persuaded.
In Chatman, law enforcement officers stopped a suspected
drug trafficker in the Seattle airport and directed him to an
interview room for interrogation. Id. at 566-67. En route to
the interview room, Chatman repeatedly attempted to hide a
bulge in his pants’ pocket. Id. at 567. The officers ordered
UNITED STATES v. POPE 8215
Chatman to empty his pockets and, when he failed to produce
the item causing the bulge, they searched his pants. Id. The
officers discovered narcotics in the bulging pocket. Id.On appeal, we framed the issue as “whether, at the time
[Chatman] was directed to empty his pockets, there was prob-
able cause.” Id. By framing the issue in this way, the court
implied that the search began with the officers’ command to
Chatman to empty his pockets. But whether the search
occurred as soon as the officers commanded Chatman to
empty his pockets or when the officers searched the pockets
themselves was not relevant to that case. Instead, the court
found that probable cause to arrest existed prior to entering
the interview room and that the subsequent search of the
defendant was valid because it was substantially contempora-
neous with the arrest. Id. Under the court’s analysis, the pre-
cise moment that the search began was irrelevant so long as
it occurred after the defendant entered the interview room and
was substantially contemporaneous with the arrest. Here, in
contrast, the government concedes that probable cause to
arrest Pope did not exist prior to the initial command, but that
it did arise prior to the second command. Therefore, unlike
Chatman, it matters in this case whether Officer Marcus’ ini-
tial command effected a Fourth Amendment search. Chatman
does not aid us in this inquiry because the Chatman court did
not analyze or decide the issue whether the command by
itself, before compliance, constituted a search.
Because we conclude that Officer Marcus’ initial command
for Pope to empty his pockets did not effect a search,2 there
2
The Sixth Circuit has stated that “[s]everal cases confirm that words
alone may amount to a search” and that “an officer may not sidestep the
requirements of the Fourth Amendment by directing a suspect to ‘empty
your pockets,’ then disclaim any constitutional violation on the ground
that he verbally directed the suspect without touching or in any way
searching him.” United States v. Street, 614 F.3d 228, 233-34 (6th Cir.
2010) (citations omitted). However, none of the cases cited by the Sixth
8216 UNITED STATES v. POPE
is no need to address whether it was conducted without proba-
ble cause or is excepted from the warrant requirement as a
search incident to arrest. We now turn to the second com-
mand.
B. Officer Marcus’ second command
[4] The government concedes that Officer Marcus’ second
command (for Pope to place the marijuana on the hood of the
patrol car) effected a Fourth Amendment search. The magis-
trate judge held that the second command was a permissible
search under the search-incident-to-lawful-arrest exception.
The district court affirmed, but it held that Officer Marcus’
initial order “was a search which was supported by probable
cause and was incident to arrest.” It did not, therefore, sepa-
rately analyze the second command. The district court also
held that “whether [Pope] was actually arrested is irrelevant”
and that “[a]t the moment [Pope] removed the marijuana from
his pocket and placed it on the hood of the car, he was effec-
tively under arrest.”
The district court cited no authority for the proposition that
the search-incident-to-arrest exception can apply even if the
Circuit involve “words alone” without compliance with those words. In
each case, a government official commanded a suspect to empty his pock-
ets or to expose an area otherwise concealed from the public, and the sus-
pect complied. See Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct.
2633, 2641-42 (2009) (holding that a school official’s verbal order was a
search where a student was ordered to pull out her bra and the elastic on
her underpants so that school officials could see if pills were being hidden,
and she complied); see also United States v. Reyes, 349 F.3d 219, 225 (5th
Cir. 2003); United States v. Dalpiaz, 494 F.2d 374, 377 (6th Cir. 1974);
United States v. Foust, 461 F.2d 328, 331 (7th Cir. 1972). While an officer
may not sidestep the requirements of the Fourth Amendment by directing
a suspect to do something that would violate its proscriptions were it done
by the officer himself, see, e.g., Winsor, 846 F.2d at 1573, words alone,
not complied with, are not enough to infringe upon an individual’s reason-
able expectation of privacy under Katz.
UNITED STATES v. POPE 8217
suspect is not actually arrested. However, we may affirm on
any basis supported by the record. Washington, 969 F.2d at
755. We affirm because the search was supported by probable
cause to arrest, and because the evanescent nature of the evi-
dence justified a limited warrantless search. See Cupp v. Mur-
phy, 412 U.S. 291, 296 (1983).
The United States Supreme Court in Murphy made clear
that a formal arrest is not always necessary to conduct a
search without a warrant. Id. at 295-96. In Murphy, the Court
upheld the warrantless search for scrapings under a suspect’s
fingernails, which ultimately revealed traces of blood and skin
cells and fabric from the strangled victim’s nightgown, even
though the suspect had not been placed under formal arrest.
Id. First, prior to the search there was probable cause to
believe the suspect committed murder. Id. at 294-95. Second,
the search of the suspect’s fingernails was reasonably related
to the circumstances necessitating the intrusion because (1)
the detention of the suspect “sufficiently apprised” the suspect
of the officer’s suspicions “to motivate him to attempt to
destroy what evidence he could without attracting further
attention”; (2) the evidence (the residue of blood, skin, and
fabric under the suspect’s fingernails) was “read[ily] destruc-
tib[le]”; and (3) the search itself was a “very limited intru-
sion.” Id. at 296.
To reach this conclusion, the Court relied on the principles
of Chimel v. California, 395 U.S. 752 (1969), which delin-
eates the search-incident-to-lawful-arrest exception. Murphy,
412 U.S. at 295. The Murphy Court stated that Chimel “recog-
nized [that] the scope of a warrantless search must be com-
mensurate with the rationale that excepts the search from the
warrant requirement.” Id. The Court also distinguished a “full
Chimel search” incident to a formal arrest from the “very lim-
ited search” present in Murphy where no arrest took place at
the time of the search. Murphy, 412 U.S. at 296.
Later cases in this circuit applying Murphy use the term
“exigent circumstances” to refer to the high risk that evidence
8218 UNITED STATES v. POPE
will be destroyed in a particular situation. See, e.g., United
States v. Chapel, 55 F.3d 1416, 1419 (9th Cir. 1995) (en banc)
(“Seizures of evidence based on exigent circumstances do not,
of course, have to be accompanied by an arrest.”); United
States v. Device, Labeled Theramatic, 641 F.2d 1289, 1294
(9th Cir. 1981) (“Such [exigent] circumstances exist where
. . . there is a high risk that evidence will be destroyed.”). See
generally 3 Wayne R. LaFave, Search and Seizure § 5.4(b)
(4th ed. 2004 & Supp. 2011-2012) (discussing search of a per-
son for evidence without arrest).
[5] Accordingly, the search of Pope was justified notwith-
standing Officer Marcus’ failure to obtain a warrant if (1)
there was probable cause to arrest Pope, (2) there was a high
risk that evidence would have been destroyed (i.e., an exigent
circumstance), and (3) the search was commensurate with the
circumstances necessitating the intrusion. Cf. Chapel, 55 F.3d
at 1419 (discussing the requirements to take a blood sample
under exigent circumstances). When Pope admitted that he
was in possession of marijuana, Officer Marcus obviously had
probable cause to arrest him for possession of a controlled
substance. Furthermore, if Officer Marcus had allowed Pope
to leave his presence without conducting the search, there was
a high risk that the evidence would have been hidden or
destroyed. Pope knew he was under suspicion, and the
pocket-sized amount of marijuana that Officer Marcus sus-
pected him of possessing could have easily gone “up in
smoke” if Pope had had the chance to dispose of it. Finally,
the search was minimally intrusive. Officer Marcus merely
instructed Pope to place whatever marijuana he had on the
hood of the car. Cf. Murphy, 412 U.S. at 296 (“very limited
search . . . under [defendant’s] fingernails”). In addition, the
incident took place in a remote forest area, which could have
affected the time needed to get a warrant and would have
increased the risk that Pope might hide or destroy the evi-
dence. Therefore, Officer Marcus’ warrantless search was jus-
tified under Murphy.
UNITED STATES v. POPE 8219
IV. Conclusion
Officer Marcus’ initial command for Pope to empty his
pockets was not a Fourth Amendment search because it did
not result in an intrusion upon Pope’s reasonable expectation
of privacy in the contents of his pockets. Officer Marcus’ sec-
ond command for Pope to empty his pockets, which consti-
tuted a Fourth Amendment search, was a justified warrantless
search because there was probable cause to believe Pope was
possessing marijuana, there was a high risk that the evidence
would be destroyed, and the search was a very limited intru-
sion.
Accordingly, we AFFIRM the district court’s order affirm-
ing the magistrate court’s order denying Pope’s motion to
suppress evidence.