UNITED STATES v. DAVID D. LEWIS

District of Columbia
Court of Appeals
No. 13-CO-1456
SEP 29 2016
UNITED STATES,
Appellant,
v. CF2-10190-13
DAVID D. LEWIS,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: WASHINGTON, Chief Judge; and GLICKMAN, FISHER, BLACKBURNE-
RIGSBY, THOMPSON, BECKWITH, EASTERLY and MCLEESE, Associate Judges.
OPINION FOR THE COURT BY MCLEESE, Associate Judge; joined by
GLICKMAN, FISHER, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
DISSENTING OPINION BY BECKWITH, Associate Judge; joined by
WASHINGTON, Chief Judge; and EASTERLY, Associate Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the matter on appeal is reversed and
remanded for further proceedings.
For the Court:
Dated: September 29, 2016.
Opinion by Associate Judge Roy W. McLeese.
Dissenting opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CO-1456
9/29/16
UNITED STATES, APPELLANT,
V.
DAVID D. LEWIS, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-10190-13)
(Hon. Robert I. Richter, Trial Judge)
(Argued En Banc June 30, 2015 Decided September 29, 2016)
David B. Goodhand, Assistant United States Attorney, with whom Ronald
C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman and Christian Natiello, Assistant United States Attorneys, were on the
brief, for appellant.
Joshua Deahl, Public Defender Service, with whom James Klein and Samia
Fam, Public Defender Service, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, and GLICKMAN, FISHER, BLACKBURNE-
RIGSBY, THOMPSON, BECKWITH, EASTERLY, and MCLEESE, Associate Judges.
Opinion for the court by Associate Judge MCLEESE, joined by GLICKMAN,
FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
Dissenting opinion by Associate Judge BECKWITH, joined by WASHINGTON,
Chief Judge, and EASTERLY, Associate Judge, at page 38.
2
MCLEESE, Associate Judge: The United States seeks review of the trial
court‘s pretrial order suppressing evidence as fruit of an unlawful search under the
Fourth Amendment. D.C. Code § 23-104 (a)(1) (2012 Repl.). We reverse and
remand for further proceedings.
I.
The evidence presented at the suppression hearing indicated the following.
At approximately 2 a.m. on June 16, 2013, United States Park Police Officer
Michael Alto was driving on Ingraham Street NW when he saw appellee David
Lewis driving a car with a non-functioning headlight. While following the car,
Officer Alto determined that the car was registered to Mr. Lewis and that Mr.
Lewis had a suspended license. Mr. Lewis drove a couple of blocks, pulled over
into a parking spot, and started to get out of the car. Officer Alto pulled up and
asked Mr. Lewis for his license and registration. Mr. Lewis opened the car door,
enabling Officer Alto to see an open bottle of Patrón tequila in the center-console
cup holder. The bottle was half full. Mr. Lewis‘s passenger, Brittney Gibbs, said
that the bottle was hers. Officer Alto told Ms. Gibbs to bring him the bottle, which
Ms. Gibbs did by walking around the car and handing the bottle to Officer Alto.
3
After confirming that Mr. Lewis‘s license had been suspended, Officer Alto
put Mr. Lewis in handcuffs. Officer Alto did not smell any alcohol coming from
Mr. Lewis or Ms. Gibbs. A second officer, Officer Brown, arrived on the scene,
and Officer Alto asked her to search the car for additional open containers of
alcohol. In Officer Alto‘s experience, ―the majority of times when there is a
tequila or liquor type of beverage in a vehicle, they‘ll be drinking through cups.‖
Similarly, in Officer Brown‘s experience, people very rarely drink directly out of
Patrón bottles and instead usually use cups. The officers decided to search the car,
both for additional evidence of the offense of possession of an open container of
alcohol (POCA) and because it was possible that Ms. Gibbs could have been
permitted to drive the car away afterward, and the officers therefore wanted to
make sure that there was no additional alcohol or other contraband in the vehicle.
At the time Officer Brown arrived, Ms. Gibbs was outside the vehicle,
saying that she needed to go to the bathroom. Officer Brown told Ms. Gibbs that
she could not leave. Officer Brown opened the driver-side door and smelled
marijuana. Officer Brown found a cup containing liquid that smelled like alcohol
on the floor of the front passenger seat, and Ms. Gibbs said that the cup was hers.
4
Officer Brown also found a loaded handgun and a box of ammunition in a bag on
the back seat. Finally, Officer Brown found a cigarette containing a green plant-
like substance in the passenger-side door.
According to Officer Brown, Ms. Gibbs was not under arrest at the time the
search of the car began. Once Officer Brown found the gun, she placed Ms. Gibbs
in handcuffs. A subsequent search revealed a bag of marijuana in Ms. Gibbs‘s bra.
Ms. Gibbs was arrested for POCA and possession of marijuana. Mr. Lewis was
arrested for carrying a pistol without a license, possession of an unregistered
firearm, possession of unregistered ammunition, and operating a vehicle with a
suspended license.
The trial court granted Mr. Lewis‘s motion to suppress evidence of the gun,
the ammunition, and the marijuana, concluding that the officers did not have
reasonable, articulable suspicion to search the vehicle for evidence of POCA. A
division of this court concluded to the contrary that the officers had reasonable,
articulable suspicion that there was evidence of POCA in the car. United States v.
5
Nash, 100 A.3d 157, 164-65 (D.C. 2014).1 The division further concluded that the
search of the car was lawful as incident to Ms. Gibbs‘s arrest, even though the
officers did not place Ms. Gibbs under arrest until after the search and it was not
clear whether the officers had at the time of the search intended to arrest Ms.
Gibbs. Id. at 165-68. The en banc court granted rehearing limited to the question
whether the search was lawful as incident to Ms. Gibbs‘s arrest. United States v.
Lewis, 107 A.3d 603 (D.C. 2015) (en banc).
II.
When reviewing a trial court‘s denial of a motion to suppress, we ―view the
evidence in the light most favorable to the prevailing party.‖ Bennett v. United
States, 26 A.3d 745, 751 (D.C. 2011) (internal quotation marks omitted). We draw
all reasonable inferences in favor of upholding the trial court‘s ruling. Milline v.
United States, 856 A.2d 616, 618 (D.C. 2004). We review the trial court‘s legal
conclusions de novo. United States v. Taylor, 49 A.3d 818, 819 (D.C. 2012).
1
Before the division, Mr. Lewis‘s case was consolidated with a factually
unrelated case, United States v. Nash, No. 13-CO-1299. United States v. Nash,
100 A.3d at 159-60. The division affirmed the trial court‘s suppression order in
Mr. Nash‘s case. Id. at 162-64. The current proceeding before the en banc court
involves only Mr. Lewis‘s case.
6
―A search conducted without a warrant is per se unreasonable under the
Fourth Amendment unless it falls within a few specific and well-established
exceptions.‖ Taylor, 49 A.3d at 821 (internal quotation marks omitted). Under
one such exception, police officers may conduct a warrantless search of a vehicle,
incident to an arrest, if they have reasonable, articulable suspicion to believe that
the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S.
332, 351 (2009). The issue before this court en banc is whether such a search,
which we will refer to as a Gant evidence search, is lawful if (a) the search
precedes the arrest for the offense at issue; and (b) it is unclear whether the officers
intended to arrest the suspect before conducting the search. Although the issue has
not yet arisen with much frequency, as far as we are aware every court to have
considered the issue has upheld the validity of such searches. See, e.g., State v.
Fizovic, 770 S.E.2d 717, 720-22 (N.C. Ct. App. 2015) (Gant evidence search of
suspect‘s car was lawful even though suspect was not arrested until after search
and officer did not intend to arrest at time of search). The same issue has arisen in
the context of other types of search incident to arrest, and the overwhelming
weight of authority upholds the legality of such searches even when conducted
before an arrest and in the absence of evidence that the officers subjectively
intended to arrest the defendant at the time of the search. See, e.g., State v. J.J.,
143 So. 3d 1050, 1052 (Fla. Dist. Ct. App. 2014) (per curiam) (upholding search as
7
lawful incident to arrest where search preceded arrest and where officer explained
search as based on officer safety; no indication that officer intended to arrest at
time of search); People v. Nguyen, 854 N.W.2d 223, 232-34 (Mich. Ct. App. 2014)
(police lawfully searched suspect‘s person incident to arrest, even though search
preceded arrest and officers did not believe they had probable cause to arrest at
time of search), appeal denied, 863 N.W.2d 327 (Mich. 2015); State v. Sykes, 695
N.W.2d 277, 282-87 (Wis. 2005); Moffitt v. State, 817 N.E.2d 239, 246 (Ind. Ct.
App. 2004); United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (―In
order to be a legitimate ‗search incident to arrest,‘ the search need not take place
after the arrest. A warrantless search preceding an arrest is a legitimate ‗search
incident to arrest‘ as long as (1) a legitimate basis for the arrest existed before the
search, and (2) the arrest followed shortly after the search. Whether or not the
officer intended to actually arrest the defendant at the time of the search is
immaterial to this two-part inquiry.‖) (citations omitted). But see People v. Reid,
26 N.E.3d 237, 239-40 (N.Y. 2014) (search of suspect‘s person was not lawful
incident to arrest because, at time of search, suspect had not been arrested and
officer had no intent to arrest suspect).
We hold that a Gant evidence search is lawful if (a) the police have probable
cause to arrest the suspect for an offense; (b) the suspect recently occupied a
8
vehicle; (c) the police have reasonable, articulable suspicion to believe that the
vehicle contains evidence of the offense; (d) at the time of the search, the police
have not released the suspect or issued the suspect a citation for the offense; and
(e) the suspect‘s formal arrest for the offense follows quickly on the heels of the
search.2
A.
We turn first to whether a Gant evidence search may precede the arrest of
the suspect. The Supreme Court did not decide that question in Gant. In Rawlings
v. Kentucky, 448 U.S. 98 (1980), however, the Supreme Court addressed the same
question in connection with the search of a defendant‘s person incident to arrest,
stating that ―[w]here the formal arrest follow[s] quickly on the heels of the
challenged search of [a suspect‘s] person, we do not believe it particularly
2
By upholding the legality of Gant evidence searches in the circumstances
stated in text, we do not mean to imply that all other Gant evidence searches would
necessarily be unlawful. For example, we express no view on the question whether
an otherwise lawful Gant evidence search would be rendered unlawful if the
suspect fled from the police after the search and before the police placed the
suspect under arrest. On a separate point, the dissent asserts that we decide the
case on a basis ―which neither party meaningfully briefed.‖ To the contrary, the
parties extensively briefed the issues we decide.
9
important that the search preceded the arrest rather than vice versa.‖ 448 U.S. at
111. Although Rawlings refers to both ―formal arrest‖ and ―arrest,‖ id., the lower
courts, including this court, have consistently understood the rule announced in
Rawlings to apply without regard to any distinction between formal arrest and
arrest. See, e.g., Millet v. United States, 977 A.2d 932, 935 (D.C. 2009) (―A search
incident to arrest may precede the actual arrest if probable cause exists,
independent of the search, to justify the arrest, and if the arrest follows quickly on
the heels of the search.‖) (internal quotation marks omitted); United States v.
Powell, 376 U.S. App. D.C. 30, 32-33, 483 F.3d 836, 838-39 (2007) (en banc)
(―where police had probable cause to arrest before search, it was of no import that
the search came before the actual arrest‖) (internal quotation marks omitted; citing
cases).
The Supreme Court in Rawlings did not explain its reasons for holding that a
search incident to arrest may permissibly precede arrest, but the lower courts have
identified at least three. First, permitting search to precede arrest will in some
cases benefit innocent suspects, because if the results of the search negate probable
cause or persuade the officer not to arrest, the suspect will be spared the greater
intrusion and collateral consequences of an arrest. See, e.g., State v. Overby, 590
N.W.2d 703, 706 (N.D. 1999) (―[I]f the person searched is innocent and the search
10
convinces the officer that his reasonable belief to the contrary is erroneous, it is to
the advantage of the person searched not to be arrested.‖) (internal quotation marks
omitted). Second, in cases in which arrest is inevitable, whether search precedes or
follows arrest does not affect the degree of the intrusion on the suspect. Id. Third,
courts are reluctant to micromanage the precise order in which officers who have
probable cause to arrest conduct searches and arrests, particularly given the safety
and other tactical considerations that can be involved. See, e.g., Anderson v. State,
553 A.2d 1296, 1301-02 (Md. Ct. Spec. App. 1989).
Lower courts, including this court, have applied Rawlings broadly,
upholding searches that preceded arrest in cases involving Gant evidence searches,
searches to protect officer safety or prevent destruction of evidence, searches of a
suspect‘s person, and searches of a vehicle. See, e.g., Powell, 376 U.S. App. D.C.
at 33, 483 F.3d at 839 (upholding search of car incident to arrest where suspect had
not been arrested at time of search; ―Indeed, every circuit that has considered the
question-save one-has concluded that a search incident to arrest may precede the
arrest.‖) (citing cases); State v. Smith, 266 P.3d 1220, 1224 (Idaho Ct. App. 2011)
(upholding Gant evidence search of car where suspect had not been arrested at
time of search); Adams v. State, 815 So. 2d 578, 582 (Ala. 2001) (upholding search
of person incident to arrest where suspect had not been arrested at time of search
11
but probable cause existed and arrest was ―sufficiently contemporaneous‖);
Minnick v. United States, 607 A.2d 519, 525 n.11 (D.C. 1992) (search of purse
taken from car lawful as search incident to arrest even though search preceded
arrest; citing Rawlings); cf., e.g., Waters v. United States, 311 A.2d 835, 836 (D.C.
1973) (―It is well settled, however, that a search or seizure may precede an arrest,
provided the officer at that point already has probable cause to arrest the possessor
of the items in question.‖).
Mr. Lewis does not appear to dispute that a Gant evidence search can be
lawful even if the search is conducted before arrest, as long as an arrest is under
way. Some of Mr. Lewis‘s arguments, however, seem to imply more broadly that
a completed arrest must precede a Gant evidence search. In any event, we hold
that, as the Supreme Court concluded in Rawlings, it is sufficient that the arrest
follows quickly after the search.
Most broadly, Mr. Lewis relies on the Supreme Court‘s statements that ―[i]t
is the fact of the lawful arrest that establishes the authority to search‖ incident to
arrest. E.g., United States v. Robinson, 414 U.S. 218, 235 (1973). For several
reasons, we do not understand this language to establish a rule that the arrest must
precede a search incident to arrest. First, in the cases relied upon by Mr. Lewis the
12
Supreme Court was not actually addressing the question whether a lawful search
incident to arrest must follow the arrest. See, e.g., Robinson, 414 U.S. at 234-35(holding that police may lawfully conduct full search of arrestee‘s person incident
to arrest, even in absence of case-specific basis for search). Both the Supreme
Court and this court have cautioned against treating such language as a dispositive
holding. See, e.g., United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012) (―We
have stressed, however, that stare decisis is never properly invoked unless in the
decision put forward as precedent the judicial mind has been applied to and passed
upon the precise question.‖) (internal quotation marks omitted); Porter v. United
States, 37 A.3d 251, 265 n.20 (D.C. 2012) (―Questions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.‖) (quoting
Webster v. Fall, 266 U.S. 507, 511 (1925)). Second, as previously noted, Mr.
Lewis himself appears to concede that, despite the language upon which he relies,
a completed arrest need not precede a search incident to arrest, as long as an arrest
is under way. Third, interpreting that language to require an arrest to precede the
search would contradict Rawlings.3
3
For similar reasons, we are unpersuaded by Mr. Lewis‘s reliance on language
in Justice Scalia‘s concurring opinion in Thornton v. United States, 541 U.S. 615(2004), stating that permitting searches for evidence incident to arrest is justified
because the ―fact of prior lawful arrest‖ distinguishes arrestees from society at
(continued…)
13
On the last point, Mr. Lewis argues that the Supreme Court‘s statement in
Rawlings is dictum. It is true, as Mr. Lewis points out, that the defendant in
Rawlings did not argue in the Supreme Court that a lawful search incident to arrest
must follow arrest. Brief and Reply Brief for Petitioner, Rawlings v. Kentucky, 448
U.S. 98 (1980) (No. 79-5146), 1980 WL 339599, 339603. Nevertheless, the
Supreme Court‘s statement in Rawlings is now deeply entrenched in the law. It
has been cited, and treated as a holding, in many lower-court decisions, including
several decisions of this court. See, e.g., Minnick, 607 A.2d at 525 n.11; United
States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (―[A]s the Supreme Court
held in [Rawlings], the search-incident-to-a-lawful-arrest rule also permits an
officer to conduct a full search of an arrestee‘s person before he is placed under
lawful custodial arrest as long as the formal arrest follows quickly on the heels of
the challenged search of his person and the fruits of that search are not necessary to
sustain probable cause to arrest him.‖) (brackets, ellipses, and internal quotation
(…continued)
large and distinguishes searches for evidence of the crime of arrest from general
rummaging. 541 U.S. at 630. Moreover, although the opinion for the Court in
Gant did adopt the general approach advocated by Justice Scalia in his concurring
opinion in Thornton, see Gant, 556 U.S. at 343-44, the opinion for the Court in
Gant did not use the word ―prior‖ in stating its holding. Id. On that point, we take
our guidance from the opinion for the Court in Gant rather than the concurrence in
Thornton.
14
marks omitted). We have located no case in which a court has treated the
statement as dictum. Moreover, well before the decision in Rawlings, the courts in
this jurisdiction had adopted the principle that ―a search or seizure may precede an
arrest, provided the officer at that point already has probable cause to arrest the
possessor of the items in question.‖ Waters, 311 A.2d at 836 (citing Bailey v.
United States, 128 U.S. App. D.C. 354, 357, 389 F.2d 305, 307 (1967)). Taken
together, these considerations preclude this court from disregarding the principle
announced by the Supreme Court in Rawlings. Cf., e.g., State v. Rose, 19 A.3d
985, 1012 n.21 (N.J. 2011) (―Without exploring the intricate distinctions between
dictum and language necessary to decision, we conclude that we must recognize
the clear, direct, explicit, and unqualified statement of the Supreme Court.‖)
(quoting Public Serv. Co. v. General Elec. Co., 315 F.2d 306, 310 n.6 (10th Cir.
1963)); Majette v. New London Hous. Auth., No. X094CV0450000090S, 2005 WL
3112738, *5 (Conn. Super. Ct. Nov. 3, 2005) (although plaintiff argued that
language from decision of Connecticut Supreme Court was dictum, ―the ‗dictum‘
has become more or less entrenched as black letter law‖); Tony Andreski, Inc. v.
Ski Brule, Inc., 475 N.W.2d 469, 473 (Mich. Ct. App. 1991) (Griffin, J.,
concurring) (―While one could argue that the statements in [an earlier decision of
the Michigan Supreme Court] were mere dicta, the doctrine is too firmly
entrenched to be overruled by this intermediate appellate court.‖).
15
Somewhat more narrowly, Mr. Lewis argues that the Supreme Court‘s
statement in Rawlings must be understood in context. Specifically, Mr. Lewis
argues that an arrest was under way at the time of the search in Rawlings, and that
Rawlings thus should not be read to authorize searches incident to arrest unless an
arrest is at least under way. We conclude otherwise. Although it is not entirely
clear what Mr. Lewis means by the term ―under way,‖ Mr. Lewis appeared to take
the position at oral argument that an arrest is under way as long as, at the time of
the search, the officers intend to transport the suspect to the police station for the
purpose of charging the suspect with a crime, even if the officers have not
communicated their intent in any way. On that view, the question whether an
arrest was under way collapses into the question whether the officers subjectively
intended to place the suspect under arrest. For reasons that we explain infra,
however, we conclude that such an inquiry into officers‘ subjective intent is
foreclosed by controlling decisions of the Supreme Court.
Mr. Lewis also suggests in a footnote that the temporal flexibility provided
by Rawlings should not be extended to Gant evidence searches. We disagree. As
we have already noted, every court of which we are aware to have addressed the
question has applied Rawlings to Gant evidence searches. See, e.g., Smith, 266
16
P.3d at 1224. Moreover, each of the justifications for the Rawlings rule applies to
Gant evidence searches: permitting such searches to precede arrest in some
instances will benefit suspects, because the results of the search may lead to release
rather than the arrest that otherwise would have occurred; as to suspects who are
going to be both searched and arrested, the order of those events does not affect the
degree of the intrusion; and tactical considerations may lead officers to reasonably
prefer to conduct a Gant evidence search before completing an arrest.
In sum, we hold that a Gant evidence search can be lawful even if the search
precedes arrest.
B.
We turn next to the question whether the search in this case was lawful even
though it is unclear whether, at the time of the search, the officers intended to
arrest Ms. Gibbs. Based on controlling Supreme Court authority, we conclude that
the search was lawful.
The Supreme Court‘s ―Fourth Amendment cases have repeatedly rejected a
subjective approach. Indeed, [the Supreme Court has] never held, outside limited
17
contexts such as an inventory search or administrative inspection, that an officer‘s
motive invalidates objectively justifiable behavior under the Fourth Amendment.‖
Fernandez v. California, 134 S. Ct. 1126, 1134 (2014) (citation, ellipses, and
internal quotation marks omitted); see also, e.g., Ashcroft v. Al-Kidd, 131 S. Ct.
2074, 2080-81, 2083 (2011) (Supreme Court has ―rejected every request to
examine subjective intent‖ in Fourth Amendment setting, with exception of (a)
special-needs searches, (b) administrative searches, and (c) searches conducted in
absence of individualized suspicion); Brigham City v. Stuart, 547 U.S. 398, 404
(2006) (―An action is reasonable under the Fourth Amendment, regardless of the
individual officer‘s state of mind, as long as the circumstances viewed objectively,
justify the action. . . . The officer‘s subjective motivation is irrelevant.‖)
(brackets, emphasis, and internal quotation marks omitted); Devenpeck v. Alford,
543 U.S. 146, 154 (2004) (―As we have repeatedly explained, the fact that the
officer does not have the state of mind which is hypothecated by the reasons which
provide the legal justification for the officer‘s action does not invalidate the action
taken as long as the circumstances, viewed objectively, justify that action. The
Fourth Amendment‘s concern with ‗reasonableness‘ allows certain actions to be
taken in certain circumstances, whatever the subjective intent. Evenhanded law
enforcement is best achieved by the application of objective standards of conduct,
18
rather than standards that depend upon the subjective state of mind of the officer.‖)
(brackets, citations, and internal quotation marks omitted).
Gant evidence searches rest on particularized suspicion, because they
require not only probable cause to arrest but also reasonable, articulable suspicion
to believe that the vehicle to be searched contains evidence of the offense of arrest.
Gant, 556 U.S. at 351. Under controlling Supreme Court law, the legality of such
searches thus must be determined based on the objective circumstances, not on
whether at the time of the search the officers subjectively intended to arrest the
suspect. Cf. Peters v. New York, 392 U.S. 40, 66-68 (1968) (upholding search as
lawful search incident to arrest; no direct evidence that officers subjectively
intended to arrest suspect at time of search); id. at 68-69 (Douglas, J., concurring);
id. at 70 (Fortas, J., concurring); id. at 79 (Black J., concurring).
We are not persuaded by Mr. Lewis‘s arguments to the contrary. First, Mr.
Lewis argues that Gant evidence searches necessarily require inquiry into officers‘
subjective intent, because the legality of such searches depends on the offense of
arrest, which in turn depends on the subjective decision of a particular officer. The
Supreme Court did not explain in Gant how courts should determine the offense of
arrest for purposes of assessing the legality of a Gant evidence search. We need
19
not delve into that issue in the present case, because Mr. Lewis does not dispute
that there was a prompt arrest for POCA. We do note, however, that it is not clear
that the inquiry must be subjective in character. Cf., e.g., Devenpeck, 543 U.S. at
154 (in determining whether there was probable cause to support arrest, courts are
not limited to subjective grounds stated by officer). We thus do not understand
Gant to have implicitly required a subjective inquiry into whether the officers
intend to arrest at the time they conduct a Gant evidence search.
Second, contrary to Mr. Lewis‘s contention, Knowles v. Iowa, 525 U.S. 113(1998), is consistent with an objective approach. In Knowles, a police officer
stopped Mr. Knowles for speeding. 525 U.S. at 114. The officer issued Mr.
Knowles a citation even though the officer could have arrested Mr. Knowles under
Iowa law. Id. The officer then searched Mr. Knowles‘s car, recovered a bag of
marijuana and a pipe, arrested Mr. Knowles, and charged Mr. Knowles with drug
offenses. Id. The Supreme Court ruled that the officer had conducted an illegal
―search incident to citation‖ rather than a search incident to arrest. Id. at 116-19.
Knowles turned on two objective circumstances. First, at the time of the search at
issue, the suspect had been issued a citation rather than arrested. Second, ―no
further evidence of excessive speed was going to be found either on the person of
the offender or in the offender‘s car.‖ Id. at 118. The Knowles Court never
20
mentioned the officer‘s subjective intent and in no way suggested that the Court
was adopting a novel exception to its general rule against consideration of
subjective intent in determining the Fourth Amendment reasonableness of searches
based on particularized suspicion.
We recognize that, under an objective approach, officers who have probable
cause to arrest for a minor crime for which they would not ordinarily make an
arrest might be tempted to conduct a Gant evidence search and then decide,
depending on the results of the search, whether in fact to arrest. On the other hand,
under the approach advocated by Mr. Lewis, officers who want to conduct a Gant
evidence search might be tempted to arrest suspects for petty crimes, when they
would not otherwise have done so, in order to permit such a search. It thus is
unclear that the approach advocated by Mr. Lewis would be more protective of
suspects‘ interests. In any event, the Supreme Court has held that comparable
―concerns about improper motives and pretext do not justify subjective inquiries‖
in the context of searches and seizures resting on particularized suspicion. Al-
Kidd, 131 S. Ct. at 2082. For example, the Court held in Al-Kidd that federal
officials had lawfully detained terrorism suspects under the federal material-
witness statute even if those officials did not intend to call the suspects as
witnesses, as long as there was an objective basis for the detention. 131 S. Ct. at
21
2082-84. And in Brigham City, the Court held that officers may enter a home, the
most protected area under the Fourth Amendment, if they have a reasonable belief
that someone is in danger inside, even if the officers‘ subjective intent is to gather
evidence or arrest suspects rather than to provide aid. 547 U.S. at 405-06.
In sum, we hold that the legality of a Gant evidence search does not depend
on whether the officers intended to arrest the suspect at the time of the search at
issue.
C.
Mr. Lewis makes four additional arguments, which we address in turn.
First, Mr. Lewis relies on the Supreme Court‘s statements that ―an incident search
may not precede an arrest and serve as part of its justification.‖ Sibron v. New
York, 392 U.S. 40, 63 (1968). Under the approach we adopt, however, the search
does not provide any part of the legal justification for the arrest. Rather, the arrest
must be justified by preexisting probable cause.
Second, Mr. Lewis argues that a search cannot be incident to an arrest if the
search is the cause of the arrest. See State v. Funkhouser, 782 A.2d 387, 409 (Md.
22
Ct. Spec. App. 2001) (decision to arrest cannot be a ―consequence of what was
found in the search‖). The Supreme Court, however, has never suggested such a
principle. Moreover, such a principle would be inconsistent with the objective
approach that the Supreme Court has required in contexts involving particularized
suspicion.
Third, Mr. Lewis argues that, because a search must be justified at its
inception, it is impermissible for subsequent events to affect the lawfulness of a
search. It is true that, under the approach we adopt, the admissibility of evidence
obtained during a Gant evidence search may depend on events that take place after
the search. But that is not unique to the current setting. For example, if officers
executing a search warrant act within the warrant at first but then flagrantly exceed
the scope of the warrant, all of the evidence seized may be subject to suppression.
Cf., e.g., In re 650 Fifth Ave. & Related Props., No. 14-2027, 2016 WL 3913403,
*22 n.32 (2d Cir. July 20, 2016) (―[W]hen items outside the scope of a valid
warrant are seized, the normal remedy is suppression and return of those items, not
invalidation of the entire search, unless it is shown that those executing the warrant
acted in flagrant disregard of the warrant‘s terms.‖) (internal quotation marks
omitted); State v. Rindfleisch, 857 N.W.2d 456, 465 (Wis. Ct. App. 2014) (same).
Thus, evidence obtained during a course of conduct that is lawful at its inception
23
can become inadmissible based on subsequent events. That is the situation with
Gant evidence searches. They are lawful at their inception if supported by
probable cause to arrest and reasonable, articulable suspicion that evidence of the
offense of arrest is in the vehicle being searched, but the evidence obtained in such
searches may become inadmissible based on subsequent events.
Finally, Mr. Lewis argues that his approach would give clearer guidance to
law enforcement than the approach we adopt. We disagree. Mr. Lewis‘s approach
raises many questions. At the most basic level, it is unclear when an arrest should
be viewed as under way or what it would mean to require that the officers intend to
arrest the suspect. On the latter topic, for example, it is unclear whether under Mr.
Lewis‘s approach a Gant evidence search would be lawful if the police plan to
transport the suspect to the station to then be released on citation. See generally
D.C. Code § 23-584 (b) (2016 Cum. Supp.) (authorizing certain officials to grant
citation release to arrestees after appearance at law-enforcement agency). To take
another example relating to a separate topic, it is unclear how Mr. Lewis‘s
approach would be applied if different officers on the scene had different intents.
In light of these and other similar questions, we conclude that Mr. Lewis‘s
approach would not provide a significantly clearer framework for police than the
objective approach that we adopt.
24
III.
A.
A central theme of the dissent is that permitting a search incident to arrest to
precede formal arrest would contradict ―the traditional requirement of a completed
formal arrest to justify a search.‖ Post at 72. The Supreme Court, however, has
held that the search-incident-to-arrest exception contains no such requirement.
Rawlings, 448 U.S. at 111 (―Where the formal arrest follow[s] quickly on the heels
of the challenged search of [a suspect‘s] person, we do not believe it particularly
important that the search preceded the arrest rather than vice versa.‖).
Notwithstanding the dissent‘s reservations about Rawlings, we are bound by
Rawlings‘s holding. See generally, e.g., Mercer v. United States, 864 A.2d 110,
114 n.4 (D.C. 2004).
As part of its implicit critique of Rawlings, the dissent states that the
―search-incident-to-arrest exception that existed at common law‖ was limited to
25
instances in which formal arrest preceded the search. Post at 49. That does not
appear to be the case. The dissent cites no common-law authority holding or
explicitly stating that a lawful search incident to arrest cannot precede the formal
arrest. Id. The Supreme Court has pointed out that the historical underpinnings of
the search-incident-to-arrest doctrine are ―sparse.‖ United States v. Robinson, 414
U.S. 218, 230 (1973). But the Court in Rawlings relied on a number of decisions
holding that a search incident to arrest can lawfully precede the arrest. Rawlings,
448 U.S. at 111 (citing, e.g., United States v. Brown, 150 U.S. App. D.C. 113, 114-
15, 463 F.2d 949, 950-51 (1972) (per curiam) (approving search incident to arrest
where officer, who had probable cause to believe defendant was in possession of
narcotics, introduced himself and then searched defendant; no indication officer
had seized defendant before search or intended to arrest defendant before search;
―Even though a suspect has not formally been placed under arrest, a search of his
person can be justified as incident to an arrest if an arrest is made immediately
after the search, and if, at the time of the search, there was probable cause to
arrest.‖)). Although one can also find contrary decisions, the line of authority on
which Rawlings relied reaches back nearly a hundred years. See, e.g., United
States v. Gorman, 355 F.2d 151, 160 (2d Cir. 1965) (Friendly, J.) (dicta) (―We do
not understand just what values would be served by a rule that would force the
police to impose a justifiable restraint on the person as a condition to making a
26
search which, if fruitless, might cause them to decide against it; on the other hand,
if the search does lead them to make an arrest for which reasonable cause
previously existed, the search would seem ‗incident to arrest,‘ in any normal use of
language, and the dilemma of seeking to justify the arrest by the search and at the
same time to justify the search by the arrest is obviously not presented.‖) (citations
and internal quotation marks omitted); People v. Simon, 290 P.2d 531, 533 (Cal.
1955) (Traynor, J.) (in case where officer stopped defendant, searched defendant,
found marijuana, and arrested defendant, court concluded that ―search [was] not
unlawful merely because it precede[d] rather than follow[ed] the arrest‖); State v.
McDaniel, 237 P. 373, 376 (Or. 1925) (―It is urged that the arrest followed, and did
not precede, the search. In our opinion it is immaterial whether the arrest preceded
or followed the search, if such acts were practically simultaneous, and if, in fact,
the defendant was guilty of committing a crime in the presence of the officers for
which he might have been arrested. In many instances it is dangerous for an
officer to go through the formality of stating that the accused is under arrest, and
the law does not require him to do so. It is oftentimes safer to act first and talk
afterward.‖).
The dissent also attempts to marginalize Rawlings by describing Rawlings as
presenting ―rare circumstances‖ or ―unusual facts.‖ Post at 54-55 & notes 5-6, 62.
27
To the contrary, the issue presented in Rawlings arises with great frequency. Many
published appellate decisions apply Rawlings to uphold searches conducted
incident to, but before, arrest. See supra at 9-10. Although the dissent could be
read to suggest that Gant indicated that lawful searches incident to arrest that
precede formal arrest will be ―rare,‖ post at 55 note 6, in fact, Gant used the word
―rare‖ to describe one particular type of search incident to arrest: a justifiable
search of a vehicle, to protect officer safety, occurring before an officer can
adequately secure the suspect. 556 U.S. at 343 n.4. Nothing in Gant suggests that
it would be unusual for lawful searches incident to arrest generally, or Gant
evidence searches specifically, to precede formal arrest.
B.
Although the dissent somewhat tentatively suggests that Rawlings is
inapplicable to Gant evidence searches, post at 59-60, the dissent ultimately
concludes more narrowly that, at a minimum, an arrest must be under way for a
Gant evidence search to be lawful. Post at 56-59. We disagree.
28
The dissent correctly notes that Justice Scalia‘s concurrence in Thornton v.
United States, 541 U.S. 615 (2004), spoke in terms of searches incident to arrests
that had already occurred. Post at 48-53. According to the dissent, this language
reflects a considered judgment that evidentiary searches incident to arrest should
be limited in conformity with the common-law rule that formal arrest must precede
a search incident to arrest. Id. Moreover, the dissent reasons, the Supreme Court
in Gant adopted the reasoning of Justice Scalia‘s concurrence in Thornton. Id.Therefore, the dissent suggests, Gant should be understood as implicitly precluding
Gant evidence searches that precede formal arrest. Id. Our analysis differs from
that of the dissent in a number of respects.
First, as we have already noted, supra at 24-26, there does not appear to
have been a settled common-law rule that the formal arrest must precede a search
incident to arrest. Second, the defendant in Thornton had been placed under
formal arrest before the search at issue. 541 U.S. at 618. Justice Scalia thus had
no occasion to address whether evidence searches incident to arrest may, in
conformity with Rawlings, precede the formal arrest. Although Justice Scalia
expressed his conclusion in terms reflecting the circumstances of Thornton, that
cannot reasonably be understood to reflect a considered intent to implicitly carve
out an exception to Rawlings. The dissent itself recognizes the applicable general
29
principle. Post at 57-58 (quoting Armour & Co. v. Wantock, 323 U.S. 126, 132-33
(1944) (―It is timely again to remind counsel that words of our opinions are to be
read in the light of the facts of the case under discussion. To keep opinions within
reasonable bounds precludes writing into them every limitation or variation which
might be suggested by the circumstances of cases not before the Court. General
expressions transposed to other facts are often misleading.‖)). Third, Gant does
not itself impose a requirement that Gant evidence searches must follow the formal
arrest. In Gant too the defendant had been formally arrested before the search at
issue, 556 U.S. at 336, so the Court had no occasion to consider the applicability of
Rawlings. But the Supreme Court‘s language in Gant suggests that the Court in
Gant understood and intended that Rawlings would continue to permit searches
incident to arrest to be conducted before the formal arrest. For example, in
explaining the basis for Gant evidence searches, the Court states that in some cases
―the offense of arrest‖ -- not, as the dissent would have it, the fact of arrest -- ―will
supply a basis for searching the passenger compartment of an arrestee‘s vehicle
and any containers therein.‖ Gant, 556 U.S. at 344; see also id. at 335(―[C]ircumstances unique to the automobile context justify a search incident to
arrest when it is reasonable to believe that evidence of the offense of arrest might
be found in the vehicle.‖); id. at 343 & n.4 (indicating that searches incident to
arrest for safety purposes may be conducted before officers ―fully effectuate an
30
arrest‖). Fourth, we are doubtful that as a lower court we could appropriately infer
that Gant implicitly intended to carve out an exception to the holding of Rawlings
that searches incident to arrest may precede the formal arrest. See, e.g., Agostini v.
Felton, 521 U.S. 203, 237 (1997) (rejecting proposition ―that other courts should
ever conclude that [the Supreme Court‘s] more recent cases have, by implication,
overruled an earlier precedent‖). Fifth, as we have already noted, supra at 6, every
court of which we are aware to have decided the issue has held that Rawlings
applies to Gant evidence searches.
In light of the foregoing considerations, it is not surprising that the dissent
itself does not appear to rest on the idea that Gant implicitly carved out an
exception to Rawlings. Rather, the dissent primarily takes the view that at a
minimum an arrest must be under way before a Gant evidence search may lawfully
be conducted. Post at 56-59. That view does not withstand analysis.
First, the Supreme Court in Rawlings suggested no such limitation. To the
contrary, the Court stated its holding more broadly: it suffices if ―formal arrest
follow[s] quickly on the heels of the challenged search.‖ 448 U.S. at 111. Second,
the overwhelming weight of authority interprets Rawlings to permit searches
31
incident to arrest to precede the formal arrest, without any indication that arrest
must in some sense be under way at the time of search. Supra at 6-7, 9-11, 13; see
also, e.g., Brown, 150 U.S. App. D.C. at 114-15, 463 F.2d at 950-51 (approving
search incident to arrest where officer, who had probable cause to believe
defendant was in possession of narcotics, introduced himself and then searched
defendant; no indication officer had seized defendant before search or intended to
arrest defendant before search). In contrast, there is virtually no support in the case
law for the dissent‘s novel limitation on Rawlings. Third, the concept of an arrest
being ―under way‖ is remarkably opaque. As previously noted, supra at 15,
counsel for Mr. Lewis indicated at oral argument that an arrest is under way as
long as the officers subjectively intend to make an arrest. On that view, the term
―under way‖ is simply another way of requiring a subjective intent to arrest. The
dissent does not explain whether it agrees with Mr. Lewis that subjective intent to
arrest suffices, or whether instead the dissent believes that officers must take some
unspecified action objectively manifesting their intent to arrest before an arrest will
be deemed under way. Post at 55-57. Given these fundamental uncertainties, we
are not persuaded by the dissent‘s vague assurance that the term ―under way‖ is not
ambiguous. Id. at 58. Relatedly, it is difficult to understand the dissent‘s assertion
that Ms. Gibbs‘s arrest in this case was ―not under way—under any definition of
the term—when the police searched Mr. Lewis‘s car.‖ Id. at 59. To the contrary,
32
at the time of the search, Ms. Gibbs had been seized, the police had probable cause
to arrest her, and she was arrested promptly after the search. Her arrest thus can be
understood to have been ―under way‖ in an ordinary sense of the term. Merriam-
Webster’s Collegiate Dictionary 1364 (11th ed. 2012) (defining ―under way,‖ inter
alia, as ―in progress‖ or ―afoot‖). Finally, the dissent‘s conclusion that an arrest
was not under way in this case necessarily rests on the view that a Gant evidence
search is unlawful unless the police subjectively intend to arrest the defendant at
the time of the search. As we have already explained, supra at 16-21, controlling
Supreme Court authority forecloses such an approach. The search of the car in this
case was based on particularized suspicion that the car contained evidence of a
crime. The Supreme Court has repeatedly and unequivocally held that such
searches may not be invalidated on the basis of officers‘ subjective intent. Id. at
16-17 (citing cases). The dissent‘s response to this controlling authority is to
suggest that there may be an exception permitting consideration of subjective
intent where ―the government wishes to deviate from objective, existing warrant
exceptions.‖ Post at 72. For the reasons already stated, this case does not involve
a ―deviat[ion] from objective, existing warrant exceptions.‖ In any event, the
Supreme Court could not have been clearer: searches based on particularized
suspicion may not be invalidated based on the officer‘s subjective intent. Given
33
our obligation to follow the holdings of the Supreme Court, we see no room for the
dissent‘s approach.
C.
According to the dissent, upholding the legality of the search in this case
will ―eviscerate[] the limits‖ imposed in Gant on searches incident to arrest, will
permit ―rummaging at will‖ during searches ―untethered in every respect from an
actual arrest,‖ ―asks almost nothing of police officers before they conduct a search
of a car incident to arrest,‖ and ―invites‖ discriminatory law enforcement. Post at
47, 41 (brackets omitted), 65, 69. These would be very serious objections if they
were well founded, but they are not well founded.
The Supreme Court in Gant precluded a particular type of search incident to
arrest: searches justified neither by a need to protect officer safety nor by a
particularized reason to believe that there would be evidence of crime in the area
searched. E.g., 556 U.S. at 344 (―Neither the possibility of access [to a weapon]
nor the likelihood of discovering offense-related evidence authorized the search in
34
this case.‖). The search in the present case differs critically from the type of search
precluded in Gant, because the search of the car in the present case rested on
particularized reason to believe that the car contained evidence of the POCA
offense. Upholding the legality of the search in the present case in no way
undermines Gant‘s rejection of suspicionless searches. For the same reason,
upholding the search in this case will not permit officers to ―rummag[e] at will.‖
Post at 41. The Supreme Court used the term ―rummage‖ in Gant to refer to
searches not based on particularized suspicion. Id. at 345 (permitting search
―when there is no basis for believing evidence of the offense might be found in the
vehicle‖ ―implicates the central concern underlying the Fourth Amendment—the
concern about giving police officers unbridled discretion to rummage at will
among a person‘s private effects‖); see also, e.g., Merriam-Webster’s Collegiate
Dictionary 1089 (11th ed. 2012) (defining ―rummage,‖ inter alia, as ―to engage in
an undirected or haphazard search‖). Because it was based on reason to believe
that the car contained evidence of POCA, the search in this case cannot reasonably
be described as involving ―rummaging at will.‖ Post at 41 (brackets omitted).
The search in this case occurred after Ms. Gibbs had been seized and at a
time when the police had probable cause to arrest Ms. Gibbs for POCA. The
search rested on particularized reason to believe that the car would contain
35
evidence of POCA. After the search, Ms. Gibbs was promptly arrested for POCA.
Far from being ―untethered in every respect from an actual arrest,‖ post at 41, the
search was very closely tethered to Ms. Gibbs‘s arrest. And far from ―ask[ing]
almost nothing of police officers before they conduct a search of a car incident to
arrest,‖ post at 65, Gant evidence searches, as we understand them, require both
probable cause to arrest for an offense and particularized reason to believe that the
vehicle that is searched will contain evidence of that offense.
We turn finally to the dissent‘s view that upholding the legality of the search
in this case will invite discriminatory law enforcement. Post at 68-69. As
previously noted, many courts have upheld searches incident to arrest where the
search preceded the formal arrest and where officers were not shown to have
intended to arrest at the time of the search. Supra at 6-7. Nevertheless, the dissent
has pointed to no evidence that such rulings have contributed to abusive or
discriminatory law enforcement. Although the dissent cites materials describing
discriminatory law-enforcement tactics, including the use of racial profiling and
―baseless[]‖ stops, post at 68 note 14, the dissent does not identify any material
linking those problems to the particular issue in this case.
36
We share the dissent‘s more general concerns about discriminatory law
enforcement. Post at 68-69. But the dissent fails to explain how the approach it
favors would materially reduce the incentive to conduct searches of suspects whom
officers would otherwise not be inclined to arrest. It is true, as the dissent states,
that ―arrests consume law enforcement resources.‖ Post at 64. Because it is
unclear what steps the dissent would require officers to take before searches would
be permitted, supra at 35, it is unclear what practical consequences the dissent‘s
approach would have. In any event, officers who wanted to conduct searches
might well decide to devote the necessary additional resources. As we and other
courts have noted, supra at 8-9, 29, the approach advocated by the dissent might
well be worse for suspects in some circumstances than an approach that permits
searches that precede formal arrest. In any event, whatever the possible policy
implications of the various approaches, we conclude that binding Supreme Court
doctrine precludes the approach advocated by the dissent.
In sum, the dissent in our view rests on a novel and vague limitation of the
Supreme Court‘s holdings in Rawlings and Gant. Moreover, the dissent‘s
approach is incompatible with the Supreme Court‘s repeated holdings that searches
based on particularized suspicion may not be invalidated based on officers‘
37
subjective motivation or intent. We therefore respectfully disagree with the
dissent.
IV.
To reiterate, we hold that, under the applicable Supreme Court decisions, a
Gant evidence search is lawful if (a) the police have probable cause to arrest the
suspect for an offense, Maryland v. King, 133 S. Ct. 1958, 1970 (2013)
(―[P]robable cause provides legal justification for arresting [a suspect], and for a
brief period of detention to take the administrative steps incident to arrest. . . . The
validity of the search of a person incident to a lawful arrest [is settled].‖) (internal
quotation marks omitted); (b) the suspect recently occupied a vehicle, Gant, 556
U.S. at 343; (c) the police have reasonable, articulable suspicion to believe that the
vehicle contains evidence of the offense, id.; (d) at the time of the search, the
police have not released the suspect or issued the suspect a citation for the offense,
Knowles, 525 U.S. at 118-19; and (e) the suspect‘s formal arrest for the offense
follows quickly on the heels of the search, Rawlings, 448 U.S. at 111.
In this case, Mr. Lewis does not dispute that the police had probable cause to
arrest Ms. Gibbs for POCA. Ms. Gibbs was a recent occupant of the car. The
38
division has already ruled that the police had reasonable, articulable suspicion to
believe that the car contained evidence of POCA, and the en banc court left that
ruling undisturbed. Nash, 100 A.3d at 164-65; Lewis, 107 A.3d at 603. Ms. Gibbs
had not been released or issued a citation at the time of the search. Finally, Mr.
Lewis does not dispute that officers made a prompt formal arrest of Ms. Gibbs for
POCA. We therefore reverse the trial court‘s order of suppression and remand for
further proceedings.
So ordered.
BECKWITH, Associate Judge, with whom WASHINGTON, Chief Judge, and
EASTERLY, Associate Judge, join, dissenting: By the time Officer Brown arrived at
the scene on Ingraham Street, Officer Alto had already detained appellant David
Lewis for driving with a suspended license, and Brittney Gibbs, Mr. Lewis‘s
passenger, had already handed over and claimed ownership of the half-full bottle
of tequila Officer Alto spotted in the car‘s center console. Though the officers had
probable cause to arrest Ms. Gibbs for possession of an open container, they did
not arrest her. They searched the car instead. Officer Alto was considering letting
Ms. Gibbs drive the car away, so he wanted Officer Brown ―to check the vehicle
39
for other open containers of alcohol‖ and to ―make sure there‘s no other
contraband in the vehicle.‖
While Ms. Gibbs sat unrestrained on the police cruiser‘s bumper, Officer
Brown opened the front passenger door and began her search. After she smelled
marijuana, saw a plastic cup with alcohol in it on the floor, and found a marijuana
cigarette in the passenger door handle, she kept searching. It was not until Officer
Brown unzipped a Nike bag in the back seat and discovered a handgun that she
decided to arrest Ms. Gibbs, who was still unrestrained and ―standing outside the
car.‖ Officer Brown then conducted a true search incident to Ms. Gibbs‘s actual
arrest, recovering ―a bag of marijuana that she had stuffed in her bra.‖
The search of Mr. Lewis‘s car was not a search incident to arrest as this
court or the Supreme Court has ever conceived of that exception to the warrant
requirement.
The search was not incident to Mr. Lewis‘s arrest: he was handcuffed at the
time of the search and the police had no reason to think they would find evidence
40
of the offense of driving with a suspended license in the car. See Chimel v.
California, 395 U.S. 752, 763 (1969) (identifying the rationales justifying the
search-incident-to-arrest exception—disarming the suspect and securing evidence
related to the offense of arrest that the suspect might destroy); Arizona v. Gant, 556
U.S. 332, 343 (2009) (holding that ―circumstances unique to the vehicle context
justify a search incident to a lawful arrest when it is ‗reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle‘‖) (citation
omitted).
Nor was the search somehow incident to Ms. Gibbs‘s eventual arrest. If
anything, it was the officers‘ decision not to arrest Ms. Gibbs that gave rise to their
need to search Mr. Lewis‘s car, because, as Officer Brown testified, Ms. Gibbs
―wasn‘t under arrest and the car wasn‘t impounded,‖ so ―she could have driven
away‖ with contraband in the car. The search had nothing to do with disarming an
arrestee or preventing her from destroying evidence related to an offense of arrest,
see Chimel, 395 U.S. at 763, and it was only after the search turned up a gun that
Officer Brown decided to arrest Ms. Gibbs after all.
41
Such an investigative search, untethered in every respect from an actual
arrest, runs contrary to the basic Fourth Amendment principle that ―conducting a
Chimel search is not the Government‘s right; it is an exception—justified by
necessity—to a rule that would otherwise render the search unlawful.‖ Thornton v.
United States, 541 U.S. 615, 627 (2004) (Scalia, J., concurring). Officer Brown‘s
wait-and-see approach to Ms. Gibbs‘s arrest involved the type of ―rummag[ing] at
will‖ that the Supreme Court has sought to protect against, see Chimel, 395 U.S. at
767, and this search of Mr. Lewis‘s car, ―conducted outside the judicial process,
without prior approval by judge or magistrate,‖ was not reasonable under the
Fourth Amendment, Katz v. United States, 389 U.S. 347, 357 (1967).
And yet the majority opinion upholds Officer Brown‘s investigative pre-
arrest search because, in its view, it is a ―Gant evidence search‖ that satisfies the
majority‘s new five-part test governing the constitutionality of vehicle searches
incident to arrest. Ante at 7-8. Under this test, a Gant evidence search is ―incident
to arrest‖ and thus constitutionally permissible even where the search precedes the
arrest for the offense at issue and even where it is clear the officers did not intend
to arrest the suspect. Ante at 7-8. Because Ms. Gibbs was ultimately arrested, the
majority concludes, Officer Brown‘s search of the car was a permissible search
42
incident to arrest, even though it was doubtful Officer Brown intended to arrest
Ms. Gibbs before she found the gun.
The majority justifies this reading of Gant—which neither party fairly
anticipated would be the basis for resolving this case and which neither party
meaningfully briefed1—largely on the ground that it has not found a case holding
to the contrary. Ante at 6. That no court has held to the contrary, however, cannot
justify crafting a new Gant rule that flouts the very premise of Gant and that
transforms the search-incident-to-arrest exception into a search-incident-to-
probable-cause-to-arrest exception to the warrant requirement. Such an exception,
neither specifically established nor well delineated, cannot be squared with
Supreme Court precedent or the Fourth Amendment.
I.
1
In their briefs as in their respective statements of the issue presented for
review, the parties focus on whether a Fourth Amendment search incident to arrest
requires the government to prove more than just probable cause to arrest at the
time of the search.
43
Arizona v. Gant is the beginning and end of the majority‘s analysis—
specifically, the exception to the warrant requirement Gant recognizes in
circumstances where officers stop a vehicle, arrest its occupant, and search the car
for evidence of the offense of arrest. Given its reliance on Gant, then, the majority
opinion is striking in two ways: (1) in the extent to which the opinion, by
upholding what amounts to an investigatory search that cannot be justified by the
rationales underlying the exception to the warrant requirement it is invoking,
repeats the same kind of mistake the Supreme Court in Gant sought to stop lower
courts from making, and (2) in the extent to which the majority must stray from the
very precepts of Gant‘s vehicle exception to apply it to the facts of this case.
In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court set out to
address a problem in Fourth Amendment doctrine that stemmed from its decision
in New York v. Belton, 453 U.S. 454 (1981). In Belton, the Court applied Chimel
to the automobile context and held that when the police have lawfully arrested a
recent occupant of a car they may search the passenger compartment ―as a
contemporaneous incident of that arrest.‖ Id. at 460. Applying the principles of
Chimel, the Court predicated its decision on the ―generalization‖ that articles in the
passenger compartment ―are in fact generally, even if not inevitably, within ‗the
area into which an arrestee might reach in order to grab a weapon or evidentiary
44
items.‘‖ Id. (quoting Chimel, 395 U.S. at 763). Although the Court in Belton
cautioned that its holding ―in no way alter[ed] the fundamental principles
established in the Chimel case regarding the basic scope of searches incident to
lawful custodial arrests,‖ id. at n.3, the Court in Gant acknowledged that in
practice Belton searches had come to exceed their permissible scope under Chimel
and were being conducted solely for investigative purposes, Gant, 556 U.S. at341–43. On this expansive reading of Belton, vehicle searches would be
authorized incident to every recent occupant‘s arrest even if the passenger
compartment were not in the arrestee‘s reach at the time of the search.2 Id. at 343.
The lower courts, in construing Belton so broadly, were ―treat[ing] the ability to
search a vehicle incident to the arrest of a recent occupant as a police entitlement
rather than as an exception justified by the twin rationales of Chimel.‖ Id. at 342(quoting Thornton, 541 U.S. at 624 (O‘Connor, J., concurring in part)).
In seeking to curtail these investigative searches under Belton, the Supreme
Court in Gant began by reaffirming the axiom that a warrantless search is ―per se
unreasonable‖ absent justification under one of the ―few specifically established
2
As Justice Scalia observed in his Thornton concurrence, in some cases
lower courts had upheld searches under Belton ―even when . . . the handcuffed
arrestee has already left the scene.‖ Thornton, 541 U.S. at 628.
45
and well-delineated exceptions‖ to the warrant requirement. Id. at 338 (quoting
Katz v. United States, 389 U.S. 347, 357 (1967)). One such exception, established
by Chimel, is for searches of a suspect that are incident to the suspect‘s arrest and
that are intended to ensure that the suspect does not have the ability to access
weapons or destroy evidence. Id. (citing Chimel, 395 U.S. at 763). The Gant
Court held that this Chimel exception, which had been impermissibly broadened
for vehicle searches under Belton, authorized the search of a car 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.‖ Id. at 343. With
this holding, the Court made clear that Chimel cannot be construed to authorize the
investigative vehicle searches then being conducted under Belton. Id. at 347
(―Construing Belton broadly to allow vehicle searches incident to any arrest would
serve no purpose except to provide a police entitlement, and it is anathema to the
Fourth Amendment to permit a warrantless search on that basis.‖). The Court also
held that separate and apart from Chimel‘s two traditional justifications for the
warrant exception, ―circumstances unique to the vehicle context justify a search
incident to a lawful arrest when it is ‗reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.‘‖ Id. at 343 (quoting Thornton, 541
U.S. at 632 (Scalia, J., concurring)).
46
The Gant Court then applied Chimel and the new vehicle exception to the
facts of the case, in which Mr. Gant, after getting out of a parked car, was arrested
for driving with a suspended license, handcuffed, and placed in the back seat of a
police cruiser before officers searched his car and found a gun and cocaine. Id. at
336. In the Court‘s view, the officers‘ search was unreasonable. Id. at 344. The
two Chimel rationales for a search incident to arrest did not apply because Mr.
Gant was handcuffed and secured in the back of a police car. Id. The rationale
underlying the vehicle exception also did not apply, as there was no chance of
finding evidence of the ―crime of arrest‖—driving without a license—in Mr.
Gant‘s car. Id.
No one here disputes that the police had probable cause to make an arrest for
possession of an open container of alcohol (POCA). It is also undisputed that at
the time of the search the police had not arrested Ms. Gibbs for POCA or for any
other crime. Yet unlike in Gant itself, which explicitly allows only a search of a
car for evidence ―incident to a lawful arrest‖ for a ―crime of arrest,‖ 556 U.S. at
343 (emphasis added), the majority concludes that a Gant car search has a broader
investigatory rationale that is implicated simply by probable cause to believe the
suspect has committed an arrestable offense, not by the fact of arrest itself.
47
At the outset, the argument for expanding the Gant vehicle exception to
searches incident to probable cause to arrest forgets the fundamental context in
which Gant arose. The Supreme Court in Gant was intent on reining in the purely
investigative searches that had been occurring under Belton, and to that end the
Court expressly rejected the notion of a ―police entitlement‖ to search a car
whenever a recent occupant has been arrested. Gant, 556 U.S. at 342 (citation
omitted). By permitting a search of the vehicle incident to probable cause to arrest
as part of a Gant vehicle search, the majority interprets Gant as authorizing law
enforcement to conduct a broad investigatory search of the vehicle before making a
decision about whether to arrest. This reading of Gant eviscerates the limits the
Court sought to impose on Belton car searches, and in fact would give the police
more latitude to search than they had under lower courts‘ pre-Gant reading of
Belton, which authorized a search incident to arrest only if there had been ―a lawful
custodial arrest‖ and the search was ―a contemporaneous incident of that arrest.‖
Belton, 453 U.S. at 460. We cannot fairly read Gant as professing to scale back
Belton‘s investigatory searches while at the same time authorizing a search-
incident-to-probable-cause-to-arrest exception that by definition invites such
investigatory searches.
48
The majority‘s reading of Gant also ignores the principles underlying the
vehicle exception, including, in particular, the exception‘s textual origins in Justice
Scalia‘s concurrence in Thornton. Although this exception ―d[id] not follow from
Chimel,‖ Gant, 556 U.S. at 343, the Court made clear that it was still a category of
search incident to arrest, one whose rationale—securing offense-related evidence
that might be found in the vehicle—is informed by the same concerns as those that
inform the evidence-preservation rationale underlying Chimel. Like the traditional
Chimel exception, then, this Gant vehicle search was in no way intended to
authorize the type of open-ended investigative searches of which the Gant Court
expressly disapproved in curbing Belton‘s excesses. Rather, the Gant search was
conceived as a narrow exception that would allow the police to search a car for
additional evidence of the crime for which the arrestee will be charged. This
search was designed only to address ―circumstances unique to the vehicle
context‖—a car that could be driven away from the scene with relevant evidence
still inside. See id.; Wyoming v. Houghton, 526 U.S. 295, 304 (1999) (noting that
―in all car-search cases, the ‗ready mobility‘ of an automobile creates a risk that the
evidence or contraband will be permanently lost while a warrant is obtained‖).
The language in Gant adopting this vehicle exception was taken from Justice
Scalia‘s concurrence in Thornton, 541 U.S. at 632. In Justice Scalia‘s view, even
49
in the absence of Chimel-like concerns, officers should be able to search a vehicle
for evidence of a crime of arrest. On the facts of Thornton, where the police
arrested Mr. Thornton on narcotics charges after finding marijuana and cocaine on
his body in a lawful patdown, officers should also have been able to search his car
for drugs, even though he was handcuffed and seated in a patrol car, with no access
to weapons and no way of destroying any evidence.
The reasons Justice Scalia gave for this position had everything to do with
the fact of arrest. He made clear that the position was not novel or radical, but
merely a reflection of the search-incident-to-arrest exception that existed at
common law. Thornton, 541 U.S. at 629. He cited pre-Chimel cases from 1914
through 1950 in which the Court had approved of searches for evidence ―relevant
to the crime for which the suspect had been arrested.‖ Id. In every one of these
cases, a suspect had been formally arrested.3 Justice Scalia then quoted at length
an 1872 common law treatise discussing the reasons for allowing such searches,
calling such reasoning ―typical‖:
3
These cases include United States v. Rabinowitz, 339 U.S. 56, 58, 60–64
(1950); Harris v. United States, 331 U.S. 145, 148, 151–52 (1947); Marron v.
United States, 275 U.S. 192, 198–99 (1927); Agnello v. United States, 269 U.S. 20,
30–31 (1925); Weeks v. United States, 232 U.S. 383, 392 (1914).
50
The officer who arrests a man on a criminal charge
should consider the nature of the charge; and, if he finds
about the prisoner‘s person, or otherwise in his
possession, either goods or moneys which there is reason
to believe are connected with the supposed crime as its
fruits, or as the instruments with which it was committed,
or as directly furnishing evidence relating to the
transaction, he may take the same, and hold them to be
disposed of as the court may direct.
Id. at 630 (citing 1 J. Bishop, Criminal Procedure § 211, p. 127 (2d ed. 1872)).
―There is nothing irrational,‖ Justice Scalia added, ―about broader police authority
to search for evidence when and where the perpetrator of the crime is lawfully
arrested,‖ and it is this ―fact of prior lawful arrest‖ that ―distinguishes the arrestee
from society at large, and distinguishes a search for evidence of his crime from
general rummaging.‖ Id. He even appeared to suggest that the police might in
some sense be obligated to search for such evidence relevant to a charge of arrest.
See id. at 632 (quoting Smith v. Jerome, 93 N.Y.S. 202, 203 (Sup. Ct. 1905) (―This
right and duty of search and seizure extend, however, only to articles which furnish
evidence against the accused.‖ (emphasis added))).
Even as he endorsed these searches, Justice Scalia acknowledged that an
evidence-gathering justification for a search is ―far less compelling‖ than a Chimel
rationale, where ―officer safety or imminent evidence concealment or destruction is
51
at issue‖ and where ―officers should not have to make fine judgments in the heat of
the moment.‖ Id. at 632. Justice Scalia therefore indicated that the exception
should be carefully circumscribed to apply only to ―relevant‖ evidence against the
accused, and that the search of Mr. Thornton‘s car was legal because Mr. Thornton
―was lawfully arrested for a drug offense‖ and the police had reason ―to believe
that further contraband or similar evidence relevant to the crime for which he had
been arrested might be found in the vehicle from which he had just alighted and
which was still within his vicinity at the time of arrest.‖ Id. (emphasis added).
The reasoning of Justice Scalia‘s concurrence, upon which Gant exclusively
relied in adopting an evidence-gathering search-incident-to-arrest exception, for
the most part does not apply in the absence of a formal arrest. First, while a person
who has been formally arrested undoubtedly has a lowered expectation of privacy
in his body and effects, see, e.g., Maryland v. King, 133 S. Ct. 1958, 1978 (2013),
the government cites no case, and we are aware of none, suggesting that a person
the police have probable cause to believe committed an offense, but who has not
yet been subject to arrest for that offense, has a lowered expectation of privacy on
52
that basis alone.4 Second, Justice Scalia‘s concurrence—and the common law
exception it resurrects—makes reference to the right and duty of officers to collect
relevant evidence against the accused. This right and duty arise presumably
because formal arrest reflects an anticipation of formal charges and a formal
criminal proceeding against the suspect. The very concepts of ―relevant evidence‖
and the ―accused‖ presuppose a criminal proceeding of some kind. See, e.g., Am.
Tobacco Co. v. United States, 328 U.S. 781, 787 (1946) (―The verdict in a criminal
case is sustained only when there is ‗relevant evidence from which the jury could
properly find or infer, beyond a reasonable doubt,‘ that the accused is guilty.‖
(quoting Mortensen v. United States, 322 U.S. 369, 374 (1944))); Wheeler v.
United States, 930 A.2d 232, 249 (D.C. 2007) (in cases ―where the evidence
requires careful weighing, the need for unfettered jury adjudication is at its zenith,
and requires that each juror have considered all relevant evidence and be firmly
4
In a footnote, the majority asserts that unlike Justice Scalia‘s statement in
Thornton that the ―fact of prior lawful arrest distinguishes the arrestee from society
at large,‖ Gant made reference only to searches as being incident to ―lawful
arrest,‖ omitting the word ―prior.‖ Ante at 12 note 3. But Gant in no way
purported to augment Justice Scalia‘s reasoning, much less to radically alter it by
authorizing an evidence search incident to arrest that precedes the arrest. Gant‘s
discussion of Justice Scalia‘s approach was brief and unequivocal; it adopted the
approach and moved on. Reading Gant‘s omission of ―prior‖ in this way also
appears at odds with the Gant Court‘s purpose of narrowing the search-incident-to-
arrest exception to address the problems Belton engendered. If the Court had also
intended to broaden the exception by authorizing a search without the predicate of
an arrest, it would have said so.
53
convinced that there is no reasonable doubt as to the accused‘s guilt‖). The duty to
collect relevant evidence against a person who officers have reason to believe will
be formally accused of a crime has no meaningful application in a scenario in
which officers objectively have probable cause to arrest but have chosen not to do
so. Any argument that the common law would accommodate the type of search
conducted in Mr. Lewis‘s case is in no way suggested by Gant, by the concurrence
in Thornton, or by the cases and treatises Justice Scalia relied upon. To the
contrary, these authorities all suggest that so novel an argument is at odds with the
rationales underlying the common law exception.
At bottom, the majority‘s argument under Gant—that a search of a car
incident to probable cause to arrest is justified because the police might arrest the
person—appears no stronger than the argument the Supreme Court rejected in
Gant: that a search of a car incident to arrest under Chimel is justified even when
the arrestee is already secured because the police might have conducted the search
earlier. Both arguments assume that, ―one way or another, the search must take
place.‖ Thornton, 541 U.S. at 627. Yet both arguments overlook the fact that
searching without a warrant ―is not the Government‘s right; it is an exception—
justified by necessity—to a rule that would otherwise render the search unlawful.‖
Id.54
II.
The majority justifies allowing pre-arrest Gant vehicle searches incident to
arrest on two main grounds: (1) that no Supreme Court precedent explicitly states
the opposite—that pre-arrest Gant searches are impermissible—and (2) that
requiring a formal arrest to be either completed or under way would contradict the
Supreme Court‘s opinion in Rawlings v. Kentucky, 448 U.S. 98 (1980). Ante at 9,
12–13. But these justifications in turn get the warrant requirement backwards and
derive from a strained reading of Rawlings that disregards Supreme Court
precedent predicating the search-incident-to-arrest exception—whether under
Chimel or Gant—on a formal arrest or perhaps, in rare circumstances like in
Rawlings, an imminent and inevitable arrest.5
5
Contesting the notion that Rawlings presents ―rare circumstances,‖ the
majority argues that ―the issue presented in Rawlings arises with great frequency‖
and that ―[m]any published appellate decisions apply Rawlings to uphold searches
conducted incident to, but before, arrest.‖ Ante at 27. But the fact that lower
courts have cited Rawlings in trying to justify a search-incident-to-probable-cause-
to-arrest rule does not mean that the facts of Rawlings—where officers were in the
process of arresting the suspect but had not yet formally done so—arise with great
frequency.
55
That no Supreme Court case explicitly holds that pre-arrest Gant searches
are unconstitutional is true as far as it goes. But the Fourth Amendment does not
give the police unfettered power to conduct searches and seizures unless judges tell
them not to, and this court is not creating policing policy on a blank slate. Rather,
we start from the premise that a warrantless search is per se unreasonable, subject
only to exceptions that have been defined clearly by the Supreme Court. See
Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (general warrant
requirement is ―subject only to a few specifically established and well delineated
exceptions . . . [that] are jealously and carefully drawn‖ (internal quotation marks
and citations omitted)). With the exception of Rawlings, the Supreme Court‘s
cases on the search-incident-to-arrest exceptions of Chimel and Gant involve
circumstances in which a formal arrest was completed and explicitly state the
exception in terms of a search incident to a lawful arrest.6 In the absence of
6
The footnote from Gant that the majority cites in suggesting that the Court
―understood and intended that Rawlings would continue to permit searches
incident to arrest to be conducted before the formal arrest,‖ ante at 29, makes clear,
consistent with Rawlings, that certain pre-arrest searches would be permissible in
the ―rare case‖ where an officer has not ―fully effectuate[d] an arrest.‖ Gant, 556
U.S. at 343 n.4.
56
precedent establishing a broader exception, the warrantless search of Mr. Lewis‘s
car is presumed unreasonable.7
With respect to the majority‘s second justification for allowing pre-arrest
searches, requiring that a completed or underway arrest precede a Chimel search is
entirely consistent with Rawlings. In Rawlings, six police officers entered a house
with an arrest warrant for a suspect and, not finding the suspect but spotting
marijuana seed, detained the house‘s occupants, including Mr. Rawlings, for forty-
five minutes, while two of the officers left to get a search warrant for the house.
448 U.S. at 100. Later, the occupants were read their Miranda rights8 and a
woman was ordered to empty her purse. Id. at 100-01. When it became clear that
the purse contained drugs, the woman turned to Mr. Rawlings and told him ―to
take what was his.‖ Id. at 101. Mr. Rawlings confessed that the drugs belonged to
him, and the officers searched his person, finding $4,500 in cash and a knife, and
then immediately placed him under formal arrest. Id. In three sentences at the
very end of its opinion, after addressing at length whether Mr. Rawlings had
7
That Gant was decided so recently also blunts the force of the majority‘s
argument that pre-arrest Gant vehicle searches are permissible because the
Supreme Court has never held them unconstitutional.
8
Miranda v. Arizona, 384 U.S. 436 (1966).
57
standing to challenge the search of his companion‘s purse, the Court rejected Mr.
Rawlings‘s contention that the search of his person was not incident to a valid
arrest, stating that ―[w]here the formal arrest follow[s] quickly on the heels of the
challenged search of petitioner‘s person, we do not believe it particularly important
that the search preceded the arrest rather than vice versa.‖ Id. at 111.
This language in Rawlings reflects a commonsense acknowledgment that
where a formal arrest is under way at the time a suspect‘s wingspan is searched, as
it surely was on the facts of Rawlings, a hypertechnical insistence upon excluding
evidence uncovered in such a search would unnecessarily constrain the discretion
of law enforcement. The majority casts this reading of Rawlings as reflecting an
―implicit critique‖ of the case, ante at 24, but the opposite is true. Rawlings
reaches the right result. The objective circumstances there—Mr. Rawlings was
detained by four police officers for forty-five minutes while two other officers
went to get a warrant—were such that there was never any question that Mr.
Rawlings was going to be arrested at the time he was searched, and given that fact,
the Court sensibly did not believe it ―particularly important‖ that the search
preceded the ―formal arrest,‖ because such an arrest had already been set in
motion. Read in light of these facts, Rawlings cannot be construed as endorsing
pre-arrest Chimel searches where an arrest is not at least under way. See Armour
58
& Co. v. Wantock, 323 U.S. 126, 132–33 (1944) (―remind[ing] counsel that words
of [the Court‘s] opinions are to be read in the light of the facts of the case under
discussion‖ and that ―[g]eneral expressions transposed to other facts are often
misleading‖).9 And while the majority suggests that it is unclear what such an
―underway‖ arrest means, ante at 15, the meaning is not ambiguous. If the arrest
has not begun, there is no reasonable dispute that it is about to begin. It is
9
In suggesting otherwise, the majority observes that Rawlings ―relied on a
number of decisions holding that a search incident to arrest can lawfully precede
the arrest.‖ Ante at 25. But the cases cited in Rawlings do not endorse a search-
incident-to-probable-cause-to-arrest exception to the warrant requirement, and they
were wrongly decided if they do. The officers involved in those cases were
conducting the searches with a conditional intent to arrest for the offense for which
they had probable cause if the searches were fruitful. See, e.g., United States v.
Brown, 463 F.2d 949, 950 (D.C. Cir. 1972) (where the officer‘s search was clearly
intended to confirm or dispel that the envelope ―protruding from appellant‘s shirt
pocket‖ contained narcotics—as the appellant‘s eyes were ―glassy,‖ he was
behaving suspiciously in an area where the officer had ―frequently observed‖
narcotics transactions, and the envelope was ―of the type in which [the officer] had
found narcotics on previous occasions‖—the court upheld the search even though
the suspect had ―not formally been placed under arrest‖ at the time the officer
seized the envelope); Bailey v. United States, 389 F.2d 305, 307–09 (D.C. Cir.
1967) (holding that where the government conceded that ―in law the arrest of the
car‘s [occupants] took place at the time [the officer] approached the car, perhaps
with gun drawn, and told appellants to sit still and keep their hands in plain sight,‖
that officer could, as a search incident to arrest, confiscate a wallet that he saw on
the car floor, even though he had not yet conducted the formal arrest). For this
reason, and because the circumstances of those cases triggered no concerns about
pretextual searches, the cases also do not control this case. See Wayne R. LaFave,
Search and Seizure § 5.4 (a) (5th ed. 2012) (noting that it is ―particularly
unsettling‖ to interpret Rawlings to permit pre-arrest searches where there is
probable cause to arrest and ―when the offense for which pre-search probable
cause existed was so trivial that it otherwise would likely have been ignored‖).
59
imminent and inevitable. The concept of an ―underway‖ arrest distills, in a word,
the concern at the end of Rawlings.
In any event, Ms. Gibbs‘s arrest was not under way—under any definition of
that term—when the police searched Mr. Lewis‘s car. Officer Alto decided not to
arrest Ms. Gibbs after confiscating the open bottle of tequila, and so Ms. Gibbs
remained sitting unrestrained on the bumper of the police cruiser while Officer
Brown searched the vehicle to see what other contraband she might find. Unlike in
Rawlings, the circumstances here showed that Ms. Gibbs was unlikely to be
arrested before Officer Brown found the gun at the end of her search. Officer
Brown‘s investigatory search of the vehicle, with no arrest of Ms. Gibbs imminent
or inevitable, bears little resemblance to the search incident to an underway arrest
in Rawlings.
Of course, this case involves a Gant vehicle search, and it is not clear that
Rawlings applies at all in this context. For his part, Mr. Lewis argues that while
concerns for officer safety may sometimes justify pre-arrest Chimel searches when
the arrest is under way, those concerns are not present when the police conduct
Gant vehicle searches. It may make sense not to stand on formalities when an
60
arrest is already under way and there is a real danger that the suspect might gain
access to a weapon or destroy evidence, but the same beat-him-to-the-draw logic
does not apply so clearly to searches of vehicles for evidence relevant to a crime of
arrest. The majority‘s only direct response to this point—that other courts have
applied Rawlings to Gant evidence searches, ante at 15-16—is less than
compelling.
Even if the Rawlings logic does apply to pre-arrest Gant searches, the
resulting rule should then be that Gant vehicle searches incident to arrest are lawful
only where a formal arrest is completed or under way. But the majority rejects this
modest approach and suggests instead that under Rawlings, Gant vehicle searches
should be permissible whenever officers have probable cause to arrest for an
offense and where the vehicle may contain evidence of that offense (along with the
majority‘s other conditions).
Recognizing that the Supreme Court in Rawlings ―did not explain [the]
reasons‖ of its fleeting analysis, the majority looks to other state court decisions
and gleans from them three policy rationales that it says underlie Rawlings and that
support a search-incident-to-probable-cause-to-arrest approach to Gant. Ante at
61
10, 16. But imported policy rationales cannot create a well-delineated exception to
the warrant requirement where none exists. And in any event, the majority‘s
policy grounds for a pre-arrest Gant exception fall short on the merits.
As its first policy rationale, the majority asserts that a pre-arrest Gant search
based on probable cause might benefit an innocent suspect if it negates such
probable cause and leads to a decision not to arrest. Under a bright-line approach
requiring a formal arrest to justify a search incident to arrest, the argument goes,
the police will simply arrest more people, including some people they may not
have arrested had they searched them first and found nothing incriminating.
But determining how a search-incident-to-probable-cause-to-arrest rule
would affect innocent suspects involves a series of complex empirical questions.
The precarious assumptions that emerge from such an inquiry are not persuasive
grounds for engaging in an otherwise counterintuitive interpretation of Supreme
Court precedent to allow a search incident to arrest in the absence of an arrest.
Indeed, while the majority cites State v. Overby, 590 N.W.2d 703, 706 (N.D.
1999), for the proposition that ―if the person searched is innocent and the search
convinces the officer that his reasonable belief to the contrary is erroneous, it is to
62
the advantage of the person searched not to be arrested,‖ ante at 10, the Overby
court was itself divided in that regard. Chief Justice VandeWalle, joined by
another justice, wrote that ―[t]he insult remains,‖ adding, ―[m]ore importantly,‖
that
the reality is that an officer who is suspicious may be
subconsciously tempted to conduct a search before
making the arrest with the expectation or hope that the
search will produce such irrefutable evidence of the
commission of a crime that a lack of probable cause to
arrest prior to the search will be overlooked, or such
suspicion as did exist will be viewed more favorably in
light of the evidence discovered in the search if, in fact,
there is evidence discovered.
Id. at 708 (VandeWalle, C.J., concurring specially).
The majority‘s second policy rationale, that a pre-arrest Gant search adds no
further intrusion where an arrest is already ―inevitable,‖ ante at 10, 16, may well be
true. The difficulty, however, is in determining when an arrest is truly inevitable.
Sometimes a set of unusual facts, like those in Rawlings, will objectively indicate
the inevitability of an arrest at the time of a pre-arrest search. An approach that
attempts to extract from Rawlings and Gant an administrable rule—that a search
incident to arrest is legal only in the face of a completed or ―underway‖ arrest—
provides a workable proxy for inevitability. The majority‘s proposed conditions to
63
the legality of a pre-arrest Gant search, in contrast, are not proxies for the
inevitability of an arrest. The circumstances of the five-factor test—that officers
have probable cause to arrest, that the suspect has just come from a car, that the
police have reason to believe the car might contain evidence of the arrestable
offense, that the police have not released the suspect or issued a citation, and that
the suspect‘s arrest for the offense follows quickly on the heels of the search—in
no way imply that the suspect inevitably would have been arrested for that offense.
Indeed, there are strong indications that the officers had no intent to arrest Mr.
Lewis or Ms. Gibbs for POCA, at least before their pre-arrest search uncovered
evidence of more serious crimes.
As to the majority‘s final policy rationale for pre-arrest Gant searches,
courts do appear ―reluctant to micromanage the precise order in which officers
who have probable cause to arrest conduct searches and arrests‖ in the context of a
Chimel search where, as in Rawlings, the arrest is under way. Ante at 10. And the
majority‘s citation on this point, Anderson v. State, 553 A.2d 1296 (Md. Ct. Spec.
App. 1989), says nothing beyond that unremarkable truism. See id. (noting that it
would be an ―absurdity‖ to require officers in a ―combat situation‖ right before
arrest to ―lose critical seconds,‖ and lose the chance to ―beat[] his opponent to the
64
draw,‖ in order to ―say the operative words, you are under arrest‖).10 Requiring
that an arrest be completed or under way is entirely consistent with judges‘
concerns about micromanaging police. This approach does not seek to
micromanage the conduct of officers acting in what are often stressful situations,
but rather to force these officers to verify at the front end that their searches are
tethered to an actual arrest supported by probable cause, rather than mere general
rummaging that may or may not lead to an arrest depending on what the officers
find. And because arrests consume law enforcement resources, predicating a
search incident to arrest upon an actual arrest has the added benefit of prompting
police officers to think more critically about whether the offense for which
probable cause exists—and which provides the basis for the search—is serious
enough to justify the costs associated with an arrest. Such an approach could also
foster trust and respect between police officers and community members.11
10
The government argues in its brief that mere probable cause to arrest
creates a combustible arrest situation because the suspect will know he is in
trouble. In circumstances that are devoid of other objective indications of an intent
to arrest, however, it is far from clear that a suspect would realize an officer has
probable cause to arrest him. And that same logic could be used to justify a search
incident to any traffic stop of a vehicle on the theory that reasonable suspicion to
stop the vehicle creates a combustible stop situation.
11
Cf. U.S. Dep‘t of Justice, Investigation of the Baltimore City Police
Department 8 (2016), https://www.justice.gov/opa/file/883366/download
(reporting that ―[i]n some cases, [Baltimore City Police Department] supervisors
(continued…)
65
The majority‘s test, by contrast, asks almost nothing of police officers before
they conduct a search of a car incident to arrest, and relies instead on a judicial
officer‘s after-the-fact determination of probable cause to ensure the lawfulness of
the search—a determination that will of course be made only if the suspect is
arrested. Requiring an underway or completed arrest—and accordingly a
probable-cause-to-arrest determination—before searching a car provides an
additional safeguard against abuses in one of the few circumstances where we
allow the police to search a vehicle ―without prior approval by judge or magistrate‖
in the form of a search warrant. See Coolidge, 403 U.S. at 454; see also Riley v.
California, 134 S. Ct. 2473, 2482 (2014) (recognizing that ―a warrant ensures that
(…continued)
have ordered officers to specifically target African Americans for stops and
arrests,‖ that ―[t]hese failures [in policing] contribute to the large racial disparities
in BPD‘s enforcement that undermine the community‘s trust in the fairness of the
police,‖ and that ―BPD leadership has acknowledged that this lack of trust inhibits
their ability to forge important community partnerships‖); U.S. Dep‘t of Justice,
Investigation of the Ferguson Police Department 5–6 (2015),
https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/
03/04/ferguson_police_department_report.pdf (highlighting ―the lack of trust
between the Ferguson Police Department and a significant portion of Ferguson‘s
residents, especially African Americans,‖ and concluding that this ―distrust . . . is
longstanding and largely attributable to Ferguson‘s approach to law enforcement,‖
which ―results in patterns of unnecessarily aggressive and at times unlawful
policing; reinforces the harm of discriminatory stereotypes; discourages a culture
of accountability; and neglects community engagement‖).
66
the inferences to support a search are ‗drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive enterprise
of ferreting out crime‘‖ (quoting Johnson v. United States, 333 U.S. 10, 14
(1948))).
It is true that the conditions the majority places on pre-arrest searches avert
some of the possible abuses. An officer could not, for example, simply pull over a
motorist for an extralegal reason (such as his race) on the basis of probable cause
for an arrestable but pretextual traffic offense like reckless driving, search his car
for evidence of some other crime, and expect to have the search upheld. But
despite the majority‘s insistence that its test will not lead to abuses because Gant
evidence searches must rest on ―particularized suspicion,‖ ante at 18, 20–22, 32–
36, the majority‘s approach does nothing to stop officers from searching a car if the
arrestable but pretextual offense is something like POCA, where evidence of the
offense may well be in the car, but where officers have no intent to arrest for the
minor offense if they fail to find evidence of other crimes. In such a case, the fact
that there is particularized suspicion to believe the car contains evidence of that
offense provides no comfort to a citizen whom the police want to stop and search
67
for evidence of other unrelated crimes, using POCA as a pretext.12 See Wayne R.
LaFave, Search and Seizure § 5.4 (a) (5th ed. 2012). Under the majority‘s
approach, moreover, an officer who does not intend to arrest but conducts a search
anyway will inevitably look for evidence that will firm up probable cause or justify
an arrest on grounds other than those that formed the basis of the probable cause—
a consequence that, besides defying the rationale of a Gant search, will effectively
lower the bar to probable cause and make investigative searches more common.13
12
The government contends that such concerns are unfounded because there
is no evidence of abuse in the more than 25 years since Rawlings was issued. As
an initial matter, not all courts have construed Rawlings to allow searches incident
to probable cause to arrest. See, e.g., People v. Reid, 26 N.E.3d 237, 239 (N.Y.
2014) (―It is irrelevant that, because probable cause existed, there could have been
an arrest without a search. A search must be incident to an actual arrest, not just to
probable cause that might have led to an arrest, but did not.‖); State v. Funkhouser,
782 A.2d 387, 406 (Md. Ct. Spec. App. 2001) (―It is axiomatic that a search
incident to lawful arrest is absolutely dependent on the fact of an actual arrest.‖).
And even where courts have so construed Rawlings, we are aware of no data from
1980 to the present indicating the absence of such abuses. Indeed, it is far from
clear how such discriminatory pretextual searches would make their way into
published judicial decisions in the first place. These searches will receive judicial
scrutiny where they fortuitously uncover evidence of a more serious crime and thus
lead to an arrest, but will not in the many cases in which the police find nothing of
interest.
13
See supra note 10.
68
These concerns are by no means hypothetical and carry with them serious
implications for disparate enforcement in policing practices.14 By allowing the
police to conduct a search of a car in the absence of an underway or completed
arrest based on probable cause to believe a specific offense has been committed,
14
See generally, e.g., Complaint, Wilkins v. Maryland State Police, No. 93-
468 (D. Md. Feb. 12, 1993), http://www.clearinghouse.net/chDocs/ public/PN-
MD-0003-0007.pdf. In this class-action lawsuit, Robert Wilkins, an African-
American attorney who now serves as a federal appellate judge, successfully
challenged the racial profiling practices of the Maryland State Police after the
police baselessly stopped and detained him and three relatives and searched their
car on a highway in Maryland because the police believed they fit the state‘s drug
courier profile. The litigation exposed the prevalence of pretextual stops and
ultimately led to a consent decree in which the Maryland State Police agreed to
revise and update its policies and procedures against racial profiling, retrain its
troopers on proper traffic stops, develop a Police-Citizen Advisory Committee to
address ongoing concerns about racial profiling, as well as take other measures to
combat this problem. See Consent Decree, Wilkins v. Maryland State Police, No.
93-468 (D. Md. Apr. 22, 2003), http://www.clearinghouse.net/chDocs/public/ PN-
MD-0003-0012.pdf; see also Baltimore Report, supra note 11, at 7 (noting that
―BPD stopped African-American [pedestrians] three times as often as white
residents after controlling for the population of the area in which the stops
occurred,‖ that ―African Americans accounted for 82 percent of all BPD vehicle
stops, compared to only 60 percent of the driving age population in the City,‖ and
that ―BPD searched African Americans more frequently during pedestrian and
vehicle stops, even though searches of African Americans were less likely to
discover contraband‖); Ferguson Report, supra note 11, at 4 (―Data collected by
the Ferguson Police Department from 2012 to 2014 shows that African Americans
account for 85% of vehicle stops, 90% of citations, and 93% of arrests made by
FPD officers, despite comprising only 67% of Ferguson‘s population. African
Americans are more than twice as likely as white drivers to be searched during
vehicle stops even after controlling for non-race[-]based variables such as the
reason the vehicle stop was initiated, but are found in possession of contraband
26% less often than white drivers, suggesting officers are impermissibly
considering race as a factor when determining whether to search.‖).
69
the majority‘s rule dispenses with an important mechanism—an arrest—that makes
it harder for officers to target individuals because of race or ethnicity and conduct
wide-ranging investigatory searches of their vehicles even though the officers have
no intent to arrest at the start of the search. An arrest requirement does just the
opposite: it ties permissible police conduct to the fact of an arrest, authorizing a
Gant search of the vehicle only if ―evidence relevant to th[at] crime of arrest‖
might reasonably be found inside. Gant, 556 U.S. at 343. In light of the well-
publicized concerns about racial profiling in some major cities, see, e.g., Floyd v.
City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013), keeping the focus on the
arrest properly mitigates a risk that the majority‘s approach actually invites—that
officers will use an arrestable offense as a pretext to rummage through the cars of
people from marginalized communities in order to look for evidence of other
crimes.
III.
In its final argument in favor of broadly construing Rawlings to implicitly
allow pre-arrest Gant searches, the majority contends that any alternative
approach, such as a rule that Gant searches are permissible only if a formal arrest
70
is completed or under way, would inevitably require an inquiry into the subjective
motivations of the arresting officers—an inquiry the Supreme Court has
discouraged in cases like Whren v. United States, 517 U.S. 806 (1996). See ante at
16–18. This argument pervades the section of the majority‘s opinion defending its
conclusion that a pre-arrest Gant vehicle search is permissible even where the
officers had no intention of executing a formal arrest.
As a threshold matter, the approach most consistent with Gant and with
Justice Scalia‘s Thornton concurrence—a bright-line rule that Gant vehicle
searches are impermissible absent a completed formal arrest—would require no
inquiry into the subjective intent of the officers. It is solely by virtue of the
majority‘s insistence that the Rawlings logic apply to Gant searches that this
question of subjective inquiry arises at all.
And in any event, the majority misapprehends Supreme Court precedent like
Whren and Ashcroft v. Al-Kidd, 563 U.S. 731 (2011), in insisting that the Court‘s
―repeated[] reject[ion]‖ of ―a subjective approach,‖ ante at 16-17 (quoting
Fernandez v. California, 134 S. Ct. 1126, 1134 (2014)), bolsters the conclusion
that pre-arrest searches are permissible where officers subjectively do not intend to
71
arrest. As the Supreme Court made clear in Florida v. Jardines, ―those cases
merely hold that a stop or search that is objectively reasonable is not vitiated by
the fact that the officer‘s real reason for making the stop or search has nothing to
do with the validating reason.‖ 133 S. Ct. 1409, 1416 (2013). Thus in Whren, the
Court held that a traffic stop based upon probable cause for a traffic offense, even
where the officer might have an invidious subjective motivation for the stop, is
lawful under the Fourth Amendment. Whren, 517 U.S. at 813 (―Subjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis.‖);
see also Jardines, 133 S. Ct. at 1416 (―defendant will not be heard to complain that
although he was speeding the officer‘s real reason for the stop was racial
harassment‖); Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (―arresting officer‘s
state of mind (except for the facts that he knows) is irrelevant to the existence of
probable cause‖); Reid, 26 N.E.3d at 240 (―[Whren and Devenpeck] hold that a
stop or arrest is valid where it is supported by the necessary level of suspicion or
probable cause, whatever the actual motive for the officer‘s action.‖).
But there is a difference between a defendant‘s delving into an officer‘s
subjective intent to invalidate a search that is clearly otherwise legal under
72
objective, existing warrant exceptions15 and a defendant‘s insisting that, if the
government wishes to deviate from objective, existing warrant exceptions, it
should do so only where that subjective intent aligns with the rationales underlying
such existing exceptions. In a Whren-like situation, the government might
reasonably be concerned that a valid traffic stop, objectively justified under well-
established Supreme Court precedent, would be invalidated because of the vagaries
of trial courts‘ credibility assessments about officers‘ subjective intentions in
stopping a motorist. But here, the search of Mr. Lewis‘s vehicle was not
objectively justified under existing and well-established exceptions to the warrant
requirement, and thus the concerns expressed in Whren and its progeny do not
apply with equal force. It is the government, not the defense, that hopes to
persuade the court to deviate from the traditional requirement of a completed
formal arrest to justify a search.16 To do so, the government should have to show
15
See Brigham City v. Stuart, 547 U.S. 398, 403–06 (2006) (officers‘
subjective motivations in entering a house were irrelevant where police were
providing assistance under the emergency aid exception to the warrant
requirement).
16
Counsel for the government actually appeared to concede at oral
argument that the subjective intent of the officer will sometimes be relevant to
determining the legality of a search when he acknowledged that he would not want
the judge to exclude an officer‘s testimony that he had made a definite decision to
arrest.
73
that the arrest was under way, even if that requires a subjective inquiry into officer
intent.
Any subjective inquiry into an officer‘s intent to arrest, moreover, would
rarely require the type of extensive examination into an officer‘s state of mind that
the Supreme Court has generally guarded against in the Fourth Amendment
context.17 In the vast majority of cases involving searches incident to arrest, that
an officer subjectively intended to arrest a suspect will be readily discernible based
on the objective circumstances of the encounter. See, e.g., Jardines, 133 S. Ct. at1416–17 (analyzing whether officers had ―a purpose to conduct a search‖ based on
what ―their behavior objectively reveals‖); Devenpeck, 543 U.S. at 154 (arresting
officer‘s ―subjective intent is always determined by objective means‖). Before Mr.
Rawlings was ―placed [] under formal arrest,‖ for example, he was detained for
forty-five minutes, was administered Miranda warnings, and had confessed to
17
Even if it did, at least one case binding on this court examined an
officer‘s subjective intent in the form of his trial testimony in concluding that a
search was unreasonable under the Fourth Amendment. See White v. United
States, 271 F.2d 829, 831 (D.C. Cir. 1959) (―According to the officer‘s own
testimony . . . the search did not turn upon an arrest for vagrancy, and to attribute it
to such an arrest would be to take an unrealistic view of the evidence. The arrest
for vagrancy was incidental to the search, rather than the converse. . . . We have
more than once excluded evidence obtained by a search which in truth was not
incidental to an arrest, but when in fact the arrest was incidental to a search. This
is such a case.‖ (citations omitted)).
74
possessing drugs found in a companion‘s purse—circumstances objectively
indicating the officers‘ intent to arrest him. See Rawlings, 448 U.S. at 100–01.
The officers‘ intent to arrest was similarly evident in Millet v. United States, 977
A.2d 932 (D.C. 2009), where, by the time the police searched Mr. Millet, officers
had already lawfully recovered a bag of marijuana from his car, had arrested Mr.
Fountain, the driver, for driving under the influence of marijuana, and had ―told
Millet and Fountain that they would both be charged in connection with the
marijuana found in the bag.‖ Id. at 934.18
18
The majority relies heavily on broad statements from cases such as
Devenpeck that subjective intent has no place in a Fourth Amendment setting. And
yet the Supreme Court has expressly endorsed subjective inquiries into an officer‘s
state of mind in certain Fourth Amendment contexts, including inquiries that seem
very similar to the question of an officer‘s intent to arrest. In Murray v. United
States, 487 U.S. 533 (1988), for example, the Court held that under the
independent source doctrine, an unlawful warrantless entry into a warehouse would
not require suppression of evidence obtained during a subsequent warrant-based
search of the warehouse if the government could establish (1) that the warrant was
based on information independent of what the officers saw during the warrantless
entry and (2) that the officers would have sought a warrant even if they had not
previously entered the warehouse. Id. at 541–43; see also id. at 547 (Marshall, J.,
dissenting) (stating that the majority opinion in Murray ―makes the application of
the independent source exception turn entirely on an evaluation of the officers‘
intent‖); United States v. Jadlowe, 628 F.3d 1, 9–10 (1st Cir. 2010) (in
independent-source case where officer testified that he ―would have sought a
warrant even had the officers not seen the bricks of cocaine in the garage,‖ the
court explained that the ―police officers‘ subjective intent to seek a warrant is a
factual determination subject to clear error review‖); United States v. Restrepo, 966
F.2d 964, 972 (5th Cir. 1992) (explaining that ―the core judicial inquiry before the
(continued…)
75
Of course, discerning an officer‘s subjective intent to arrest may in some
cases prove less clear-cut, and officers may be understandably reluctant to subject
themselves and the validity of their searches and seizures to the uncertainty of trial
courts‘ credibility determinations. In such instances, officers have a
straightforward and objectively verifiable alternative available to them: they can
make the arrest.
IV.
The rule the majority crafts for evaluating the constitutional validity of a
pre-arrest Gant vehicle search is ostensibly narrow, but its five-part test cannot
mask what is, at bottom, a profound departure from the essential moorings of the
Supreme Court‘s well-established exceptions to the warrant requirement for both
Chimel-style searches incident to arrest and Gant vehicle searches alike. The
majority opinion is no mere application of Gant to a new set of facts. On the
(…continued)
district court on remand is a subjective one: whether information gained in the
illegal search prompted the officers to seek a warrant to search [the residence]‖).
76
contrary, in upholding the pre-arrest search in this case under Gant even in the
absence of any indication the police intended to arrest Ms. Gibbs before the search,
the majority spurns Justice Scalia‘s unmistakable view that such an exception to
the warrant requirement is justified by the ―fact of prior lawful arrest.‖ 541 U.S. at
630. The weakness of the majority‘s holding in this regard is underscored by its
unsupportable and largely unexplained contention that the Gant Court, while
expressly adopting the exception Justice Scalia proposed in Thornton, nevertheless
rejected its analytic roots.
There are undeniable costs to expanding existing exceptions to the warrant
requirement beyond their well-established bounds. Most notably, investigative
searches will become more commonplace. Such searches, as the Supreme Court
has repeatedly emphasized, ―implicate[] the central concern underlying the Fourth
Amendment—the concern about giving police officers unbridled discretion to
rummage at will among a person‘s private effects.‖ Gant, 556 U.S. at 345. With
its new anomalous conception of the Gant vehicle search, the majority opinion
downplays this central concern, discarding a key limiting principle in the
foundation of Gant itself that is designed to address precisely this problem—―the
fact of prior lawful arrest.‖ Thornton, 541 U.S. at 630.
77
I respectfully dissent.