United States v. Bumphus

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District of Columbia
Court of Appeals
No. 17-CO-441
UNITED STATES,
Appellant,
v. CF2-10498-15
JAMES BUMPHUS,
Appellee.
BEFORE: Blackburne-Rigsby, Chief Judge, and Glickman, Thompson, Beckwith,*
Easterly,* and McLeese, Associate Judges; Fisher,*† Senior Judge.
ORDER
(FILED— February 25, 2021)
On consideration of appellant’s petition for rehearing or rehearing en banc,
appellee’s opposition to appellant’s petition for rehearing or rehearing en banc, and
it appearing that a majority of the judges of this court who are in regular active
service and who are not disqualified has not voted to grant the petition for rehearing
en banc, it is
ORDERED by the merits division* that appellant’s petition for rehearing is
denied. It is
FURTHER ORDERED that appellant’s petition for rehearing en banc is
denied.
PER CURIAM
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Chief Judge Blackburne-Rigsby and Associate Judges Thompson and McLeese
would grant rehearing en banc.
Associate Judge Deahl did not participate in this case.
*† Judge Fisher was an Associate Judge at the time of argument. His status changed
to Senior Judge on August 23, 2020.
Senior Judge Fisher would grant rehearing.
Judge Easterly concurs separately. (See page 2)
Judges Thompson, McLeese, and Fisher dissent separately. (See page 3)
EASTERLY, Associate Judge, concurring in the denial of the petition for
rehearing en banc: When an individual declines to give the police consent to search
their car, a reasonably well-trained officer knows that, if he has probable cause to
believe the car contains contraband, he can search the car without consent and
without a warrant. A reasonably well-trained officer also knows he can go to a
judge—outside of business hours, if need be—and get a warrant. The officer in this
case, a sergeant with thirteen years of experience, did neither of these things. As
the trial court found, he had no credible, justifiable reason for not searching Mr.
Bumphus’s car on the night he seized it or in the days that followed. (As the trial
court also found, the officer similarly lacked a credible, justifiable reason for
holding Mr. Bumphus in handcuffs for two and a half hours on the night of the
seizure.) The officer demonstrated not “the slightest shred of diligence” and
expressed “outright disregard for the adverse effect such a delay might have on the
[significant] possessory interests of [a] vehicle’s owners.” The implication was that
the officer had “waited” to conduct the search in order to withhold the car and its
contents (including Mr. Bumphus’s wife’s purse and cellphone, and his child’s
backpack, “things” the trial court observed “many people would consider necessities
of daily life”) from Mr. Bumphus. In other words, this was delay for delay’s sake.
The Fourth Amendment only authorizes reasonable searches and seizures by
government agents. A search that is delayed for no reason and without resort to any
process is, perforce, not a reasonable search under the Fourth Amendment—a
proposition the government conceded in the trial court and does not dispute in its
petition for rehearing. Just because no other court appears to have issued a factually
analogous decision does not make our court’s opinion affirming the trial court’s
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suppression ruling legally groundbreaking, much less a misguided extension of
Fourth Amendment principles. To the contrary, legitimizing this officer’s
manifestly unreasonable conduct would clearly run afoul of the Fourth Amendment,
and suspending the application of the exclusionary rule on these facts would
unjustifiably undermine its protections. Rehearing or rehearing en banc for either
purpose is rightly denied.
For the reasons stated in his dissent from the opinion issued by the division,
Senior Judge Fisher dissents from the denial of the petition for rehearing. He is not
authorized to vote on the petition for rehearing en banc.
THOMPSON, Associate Judge, dissenting from the denial of the petition for
rehearing en banc: For the reasons set out in Judge Fisher’s dissent from the Division
opinion, I dissent from denial of the petition for rehearing en banc. I note also that
the result the Division upheld was particularly unwarranted given that it was Mr.
Bumphus who initially caused the delay in searching his car by “thr[owing] his keys
to an unidentified person who left the scene,” 227 A.3d at 561, and then saying,
“no” when the officer “repeatedly asked him for the keys.” He should not be
rewarded for that obstructionist behavior by suppression of the gun.
MCLEESE, Associate Judge, dissenting from the denial of the petition for
rehearing en banc: It appears to be undisputed that the police lawfully seized Mr.
Bumphus’s car without a warrant, based on probable cause to believe that Mr.
Bumphus illegally possessed a firearm in the car. United States v. Bumphus, 227
A.3d 559, 561 n.1 (D.C. 2020). After obtaining a warrant, the police searched the
car and discovered a firearm. Id. at 562. The court holds that evidence of the
discovery of the firearm must be suppressed, because the police violated the Fourth
Amendment by waiting approximately four days (which included a weekend) before
obtaining a warrant to search the car. Id. at 563-71. In my view, the court incorrectly
decides two exceptionally important legal issues and fails to follow binding contrary
authority. I therefore respectfully dissent from the denial of the petition for rehearing
en banc.
First, I do not agree that the four-day period between the seizure and the search
in this case was unreasonable under the Fourth Amendment. I am aware of no
decision finding a remotely comparable delay to be constitutionally unreasonable.
The cases relied upon by the court involve delays that range from well over a year
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to twenty days. Bumphus, 227 A.3d at 565 n.7. Courts addressing delays
comparable to that in this case appear to have consistently held that the delays were
not constitutionally unreasonable. See, e.g., United States v. Johns, 469 U.S. 478,
479-88 (1985) (three-day delay in conducting warrantless search of lawfully seized
packages not unreasonable); United States v. Howard, 991 F.2d 195, 197, 202 (5th
Cir. 1993) (two-day delay in searching car not unreasonable; court does not identify
any reason for delay other than that officer chose to get warrant); State v. Stacey,
198 A.3d 257, 259-63 (N.H. 2018) (five-day delay in obtaining warrant to search car
not unreasonable; trooper “did not believe that the situation was sufficiently urgent
to merit calling an on-call judge on a Sunday or holiday”).
In my view, barring unusual circumstances not present here, relatively brief
delays, such as the delay in this case, are simply not unreasonable, even if the police
offer no particular justification for the brief delay. That conclusion finds strong
support from the circumstance that, even if the police had immediately gotten a
search warrant in this case, they ordinarily would have had ten days to execute the
warrant. D.C. Code § 23-523(a) (2012 Repl.); Super. Ct. Crim. R. 41(f)(1). In this
case, the police executed the warrant the same day they got it. Bumphus, 227 A.3d
at 562. If the police in this case could lawfully have gotten a warrant immediately
and then waited ten days to execute the warrant, I fail to see how it could be
constitutionally unreasonable for the police to wait four days to get a warrant but
then execute the warrant immediately. See State v. Schilling, 192 Wash. App. 1063,
2016 WL 885256, at *3 (App. Ct. Mar. 7, 2016) (unpublished) (Because warrants
can be executed within a ten-day period, a six-day delay in getting a warrant to
search a car resulted in a seizure that “was for a shorter duration than would have
been authorized by a warrant issued at the earliest opportunity. This also supports
the court’s determination that the seizure was reasonable.”).
Second, even if the seizure of the car was unreasonably prolonged,
suppression of evidence was not justified. Bumphus, 227 A.3d at 571-72 (Fisher, J.,
dissenting). If the police had gotten a warrant immediately, they might not have
searched Mr. Bumphus’s car any sooner than they did, given that they would
ordinarily have been given ten days to execute the warrant. Even if the police had
searched the car immediately, however, they still would have discovered the firearm
in the car. As Judge Fisher explains in his dissent, the delay in obtaining a warrant
thus was not a “but-for” cause of the discovery of the firearm. Id. That being so,
controlling authority precludes suppression of evidence. See, e.g., Hudson v.
Michigan, 547 U.S. 586, 592 (2006) (“[B]ut-for causality is . . . a necessary . . .
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condition for suppression.”). I am not persuaded by the court’s responses to this
problem. The court appears to suggest that perhaps the police would have simply
released Mr. Bumphus’s car rather than searching it, Bumphus, 227 A.3d at 570 n.15,
but that suggestion is both unsupported and entirely implausible. The court also
appears to assert that in fact the delay in obtaining the search warrant did cause the
recovery of the firearm. Id. at 570. The court does not explain the basis for that
assertion, however, and I can see no basis for the assertion. It is true that the seizure
of the car was a but-for cause of the discovery of the handgun, but that seizure was
lawful. As Hudson makes clear, the requirement is that the “illegal manner” of the
seizure -- in this case, the supposedly unlawful delay in obtaining a warrant -- be “a
but-for cause of obtaining the evidence.” 547 U.S. at 592. In this case, that
requirement was not met.
Copies emailed to:
Honorable Maribeth Raffinan
Director, Criminal Division
Copies e-served to:
Samia Fam, Esquire
Public Defender
Service
Elizabeth Trosman,
Esquire Assistant United
States Attorney
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