FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30284
Plaintiff-Appellant, D.C. No.
v. 2:08-cr-00159-
NEAL MADDOX, RHW-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted
April 6, 2010—Seattle, Washington
Filed: August 12, 2010
Before: Michael Daly Hawkins, Carlos F. Lucero,* and
N. Randy Smith, Circuit Judges.
Opinion by Judge Hawkins;
Dissent by Judge N.R. Smith
*The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit Court of Appeals, sitting by designation.
11435
UNITED STATES v. MADDOX 11437
COUNSEL
Aine Ahmed, Office of the United States Attorney, Spokane,
Washington, for the plaintiff-appellant.
Matthew Campbell, Office of the Federal Defenders of East-
ern Washington and Idaho, Spokane, Washington, for the
defendant-appellee.
11438 UNITED STATES v. MADDOX
OPINION
HAWKINS, Circuit Judge:
The government appeals the suppression of evidence found
inside closed containers—themselves inside a motor vehicle
stopped for a traffic violation—after the driver was hand-
cuffed and securely placed in the rear of the arresting officer’s
patrol car. We affirm.
FACTS
Officer Scott Bonney had pulled over to the side of the road
to finish writing a police report, when he saw Neal Maddox’s
(“Maddox”) Chevy truck enter the intersection. Maddox
stopped abruptly in the intersection, then immediately pro-
ceeded in reverse. As he was moving in reverse towards the
stop sign, Maddox nearly collided with a small blue car going
westbound in the intersection. He made a three-point turn,
blocking traffic, turned around, and accelerated. Maddox
slowed once the officer activated his overhead lights, and
stopped at the side of the road.
When Officer Bonney exited his patrol car, Maddox exited
his vehicle and began yelling at the officer. Officer Bonney
instructed Maddox to sit in the driver’s seat and remain still,
approached the vehicle, and told Maddox he had stopped him
for driving recklessly. Maddox identified himself, but was
unable to produce a driver’s license. When asked whether the
vehicle belonged to him, Maddox admitted ownership, noting
his friend gave him the truck a few weeks before. He added
he had yet to register the truck, and had no bill of sale. Officer
Bonney noticed the vehicle’s tags were expired, and the tem-
porary sticker in the rear window was not only a photocopy,
but also valid for longer than was normal for a temporary
sticker (31 rather than 30 days). A computer check revealed
that Maddox’s license had been suspended. When Maddox
ignored the officer’s request to step outside the vehicle, the
UNITED STATES v. MADDOX 11439
officer took away Maddox’s key chain and cell phone, tossing
them on the front seat of Maddox’s vehicle. Officer Bonney
placed Maddox under arrest, handcuffed him, and escorted
him to the patrol car. He then searched Maddox’s person and
found $358 in cash inside Maddox’s pants pockets, putting
Maddox in the back of the patrol car after the search. It is
undisputed that, at this point, Maddox posed no threat to offi-
cer safety and there was no danger of evidence destruction.
Officer Bonney then returned to Maddox’s vehicle, reached
inside, and retrieved the key chain and cell phone. Hanging on
the key chain was a metal vial with a screw top. Removing
the top and the vial’s contents, the officer discovered a sub-
stance he believed to be methamphetamine. Entering the inte-
rior of vehicle, the officer found a closed computer case
which he opened, and discovered a handgun and still more of
the substance he had found in the key chain vial.
Following a hearing, the district court determined that nei-
ther probable cause, exigent circumstance, nor the incidents of
Maddox’s arrest or impoundment of his vehicle justified a
warrantless search of the interior of Maddox’s vehicle, and
ordered suppression of the items found there. This interlocu-
tory appeal followed.1
STANDARD OF REVIEW
A district court’s grant or denial of a motion to suppress is
reviewed de novo. United States v. Orman, 486 F.3d 1170,
1173 (9th Cir. 2007); United States v. Bynum, 362 F.3d 574,
578 (9th Cir. 2004); United States v. Negrete-Gonzales, 966
F.2d 1277, 1282 (9th Cir. 1992).
1
We deny the Government’s motion to file a supplemental record of an
alleged misstatement made by a defense witness at the suppression hear-
ing; this evidence was never presented to the district court, and was not
a part of the district court record. We grant Maddox’s motion to strike the
portion of the Government’s reply brief referring to such testimony.
11440 UNITED STATES v. MADDOX
DISCUSSION
The Key Chain
The Government argues the search of Maddox’s key chain
was proper as incident to lawful arrest.
[1] A search incident to lawful arrest is one of the “few
specifically established and well-delineated exceptions” to the
warrant requirement of the Fourth Amendment, see Katz v.
United States, 389 U.S. 347, 357 (1967), and is conducted for
the twin purposes of finding weapons the arrestee might use,
or evidence the arrestee might conceal or destroy. Chimel v.
California, 395 U.S. 752, 762-63 (1969). The determination
of the validity of a search incident to arrest in this circuit is
a two-fold inquiry: (1) was the searched item”within the
arrestee’s immediate control when he was arrested”; (2) did
“events occurring after the arrest but before the search ma[k]e
the search unreasonable”? United States v. Turner, 926 F.2d
883, 887 (9th Cir. 1990).2
2
The dissent relies on United States v. Robinson, 414 U.S. 218, 235
(1973), convinced Officer Bonney conducted a valid search incident to
arrest. Dissenting Op., at 11447-48. Robinson, however, is easily distin-
guishable from the case before us; the search of Maddox’s key chain was
not a valid search incident to arrest as the key chain was not on Maddox’s
person at the time of the search. After pulling over Robinson’s vehicle, the
officer was “face-to-face” with Robinson when he conducted a patdown
of the defendant, during which he “felt an object in the left breast pocket
of the heavy coat respondent was wearing,” reached into Robinson’s
pocket and pulled out the object (a crumpled cigarette package), and then
opened the package, finding 14 gelatin capsules of heroin. Id. at 224. The
officer then “continued his search of [Robinson] to completion, feeling
around his waist and trouser legs, and examining the remaining pockets.”
Id. Here, Officer Bonney took the keys, and placed them on the seat of
Maddox’s car; he did not open the key chain during a patdown search of
Maddox, but after Maddox was secure in the patrol car and when the keys
were no longer on his person. The Court’s admonition in Robinson that
“the authority to search the person incident to a lawful custodial arrest,
while based upon the need to disarm and to discover evidence, does not
UNITED STATES v. MADDOX 11441
[2] Contrary to the dissent’s opening description, this was
not a search of Maddox’s person incident to arrest. Maddox’s
person was handcuffed in the back of the squad car, incapable
of either destroying evidence or presenting any threat to the
arresting officer. While the key chain was within Maddox’s
immediate control while he was arrested, subsequent events—
namely Officer Bonney’s handcuffing of Maddox and placing
Maddox in the back of the patrol car—rendered the search
unreasonable. In Turner, we found valid the search of baggies
found after the defendant was handcuffed and taken into the
next room because of a legitimate concern for the officers’
safety: “they had already discovered a concealed weapon
beneath the bedding.” Id. at 888; accord United States v. Hud-
son, 100 F.3d 1409, 1420 (9th Cir. 1996) (search of bedroom
valid search incident to arrest even after defendant had been
arrested and removed from the room, where “[w]hen Hudson
was called out of his bedroom and arrested, one of the arrest-
ing officers noticed a rifle case near his feet”). No such
weapon or threat was found here, and Maddox’s demeanor, as
the dissent argues, see Dissenting Op., at 11445 n.1, did not
provide such legitimate concern for Officer Bonney’s safety,
as after initially yelling, Maddox subsequently cooperated
with the officer and the arrest. Mere temporal or spatial prox-
imity of the search to the arrest does not justify a search; some
threat or exigency must be present to justify the delay. See
United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled
on other grounds by California v. Acevedo, 500 U.S. 565, 571
(1991) (“warrantless searches of luggage or other property
seized at the time of an arrest cannot be justified as incident
to that arrest either if the search is remote in time or place
from the arrest, or no exigency exists. Once law enforcement
depend on what a court may later decide was the probability in a particular
arrest situation that weapons or evidence would in fact be found upon the
person of the suspect,” id. at 253, cannot possibly have meant to encom-
pass a situation such as Maddox’s, where he was handcuffed and locked
securely in the back of a patrol car.
11442 UNITED STATES v. MADDOX
officers have reduced luggage or other personal property not
immediately associated with the person of the arrestee to their
exclusive control, and there is no longer any danger that the
arrestee might gain access to the property to seize a weapon
or destroy evidence, a search of that property is no longer an
incident of the arrest.”) (internal quotations and citations
omitted). With Maddox handcuffed in the backseat of the
patrol car, no possibility of Maddox concealing or destroying
the key chain and the items contained therein, and no sighting
of weapons or other such threats, Officer Bonney’s search of
Maddox’s key chain was not a valid search incident to arrest.3
The Laptop Bag
The Government contends the officer’s seizure of the lap-
top bag was the result of a valid inventory search.4
3
Maddox did not have a diminished privacy interest in his key chain
container merely because he “chose to attach the searched container to his
keys.” See Dissenting Op., at 11450 n.4. The Supreme Court has “rejected
the proposition that ‘the nature of a container may diminish the constitu-
tional protection to which it otherwise would be entitled.’ ” United States
v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981) (citing Robbins v.
California, 453 U.S. 420, 424-25 (1981) (plurality). “[S]uch a distinction
‘has no basis in the language or meaning of the Fourth Amendment’
because that ‘Amendment protects people and their effects, and it protects
those effects whether they are ‘personal’ or ‘impersonal.’ ” Id. In recog-
nizing an individual’s privacy interest in a purse, we held “no one can sen-
sibly be asked to distinguish the relative ‘privacy interests’ in a closed
suitcase, briefcase, portfolio, duffle bag or box.” Id. While the keys may
very well be considered “what amounts to a tool,” see Dissenting Op., at
11450 n.4, and while “any person wishing to drive his truck, move his
truck, lock or unlock his truck [may be] required to use a set of keys,” see
id., such use of the keys would not require a person to open the container
attached to those keys. An individual therefore has a privacy interest in
such a container, which could contain a wide range of medications or
other personal items.
4
The Government does not contest that without a valid seizure of the
key chain, the officer lacked probable cause to search the rest of the vehi-
cle, and therefore did not have probable cause to seize the laptop bag. See
United States v. Barajas-Avalos, 377 F.3d 1040, 1054 (9th Cir. 2004) (cit-
ing United States v. Wanless, 882 F.2d 1459, 1465 (9th Cir. 1989));
United States v. DiCesare, 765 F.2d 890, 899, amended by 777 F.2d 543
(9th Cir. 1985).
UNITED STATES v. MADDOX 11443
[3] Vehicular inventory searches must be conducted “in
accordance with the standard procedures of the Washington
State Patrol” in order for procured evidence to be admitted in
federal court. United States v. Wanless, 882 F.2d 1459, 1463
(9th Cir. 1989). Once a vehicle is impounded, police may
conduct an inventory search. Id. Police may impound a vehi-
cle in Washington state:
if the officer has probable cause to believe that it was
stolen or used in the commission of a felony; . . . as
part of the police ‘community caretaking function’
. . . [provided] neither the defendant nor his spouse
or friends are available to move the vehicle; and . . .
if the driver has committed one of the traffic
offenses for which the legislature has specifically
authorized impoundment.5
State v. Williams, 689 P.2d 1065, 1071-72 (Wash. 1984).
With the verification of the vehicle identification number and
plates, and Maddox’s own assertion of ownership, any suspi-
cion the vehicle was stolen was but a “mere suspicion.” See
State v. Houser, 622 P.2d 1218, 1222-23 (Wash. 1980)6.
5
Here, neither the offense of reckless driving, nor the offense of driving
while license suspended (3rd degree), specifically authorize impoundment.
See Rev. Code Wash. §§ 46.61.500; 46.20.342.
6
The court in Houser found the detective “harbored a mere suspicion
that the car was stolen, and that it was this suspicion which caused the
officer to impound the car.” Houser, 622 P.2d at 1224. The officer testi-
fied that he was not sure the vehicle was stolen, made no further inquiry
into the defendant’s right to possession of the car, did not inquire as to the
false identity used by the defendant, did not ask why the defendant was
in the area, and did not inquire why the defendant was using a car regis-
tered to another individual. Id. He also did not run a check of the VIN to
determine if the car was stolen. Id. Because “a mere suspicion that a vehi-
cle is stolen does not rise to the level of probable cause for the purpose
of justifying an intrusion of Fourth Amendment rights,” the court found
that “the State ha[d] not sustained its burden of showing the impoundment
was based on probable cause that the car was stolen.” Id.
11444 UNITED STATES v. MADDOX
Moreover, the vehicle here was impounded for reasons other
than to carry out the community caretaking functions of the
police: it was not abandoned, impeding traffic, or threatening
public safety or convenience. See id. at 1224. Finally, because
Maddox offered to have his friend move the vehicle, the offi-
cer did not sufficiently consider alternatives before impound-
ing Maddox’s truck. The officer’s impoundment of Maddox’s
vehicle violated Washington Law, and, therefore, did not
qualify as a valid inventory search in accordance with the
Fourth Amendment.
AFFIRMED.
N.R. SMITH, Circuit Judge, dissenting:
The undisputed facts of this case establish that Officer Bon-
ney’s search of Maddox’s key-chain container was a search of
an arrestee’s person incident to a lawful custodial arrest—a
search that needs no warrant to be valid under established
Fourth Amendment law. See United States v. Robinson, 414
U.S. 218, 236 (1973). I therefore dissent.
In review of the pertinent facts in this case, Maddox does
not dispute that Officer Bonney had probable cause to arrest
him. He does not dispute that Officer Bonney first took pos-
session of Maddox’s keys when Officer Bonney removed
Here, not only did Officer Bonney run the VIN and find the car was not
stolen, but he also asked Maddox whether the truck belonged to him. Mad-
dox responded that he owned the truck but it was given to him by a friend,
and he did not have time to register it. With the verification of the VIN
and plates, and Maddox’s own assertion, Officer Bonney had even less
reason to believe the vehicle was stolen than the officer in Houser; any
suspicion the vehicle was stolen, therefore, was only a “mere suspicion”
and did not rise to the level of reasonable cause required under Washing-
ton state law. See Houser, 622 P.2d at 1223.
UNITED STATES v. MADDOX 11445
those keys from Maddox’s hand as Officer Bonney was
attempting to handcuff Maddox. He does not dispute Officer
Bonney’s description of Maddox’s behavior upon being
stopped; behavior that is best described as confrontational and
aggressive.1 Finally, Maddox does not dispute that, if we find
the search of the key-chain container valid, the discovery of
methamphetamine in that key-chain container justifies a war-
rantless search of Maddox’s truck under the “automobile
exception.” See Carroll v. United States, 267 U.S. 132,
160-62 (1925). Having found undisputed facts establishing
the propriety of Officer Bonney’s search of the key-chain
container, this panel need look no further for justification. See
Gustafson v. Florida, 414 U.S. 260, 263-64 (1973) (holding
that the lawful arrest renders the search of the arrestee’s per-
son “reasonable” under the Fourth Amendment).
FACTS
Officer Bonney first noticed Maddox while Officer Bonney
was parked on the west side of Barker Road in Spokane,
Washington (Barker Road runs north-south), typing up some
notes on a noise complaint call in the area. Officer Bonney’s
vehicle was facing south and located just north of an intersec-
tion where Buckeye Avenue (Buckeye Avenue runs east-
west) ends at Barker Road (forming a T-intersection). From
that vantage point, Officer Bonney observed Maddox driving
westward down Buckeye Avenue. As Officer Bonney
watched, Maddox drove past a stop sign and then abruptly
stopped (Bonney suspected that the truck’s driver was about
to run the stop sign before seeing the police car), coming to
a complete stop in the intersection, partially blocking north-
1
Although Maddox’s behavior is not dispositive when determining the
validity of the search, I do find it particularly relevant to understanding the
nature of the stop. In particular, Maddox’s confrontational and aggressive
behavior forced a situation where Officer Bonney’s search of Maddox’s
effects, while contemporaneous to the arrest, was not performed until
Maddox was secured.
11446 UNITED STATES v. MADDOX
bound traffic on Barker Road. At this point, Officer Bonney
pulled out to catch up with the truck. The truck then immedi-
ately reversed, almost backing into a small car traveling west
behind the truck. The truck made a quick 3-point turn—
blocking traffic on Buckeye Avenue in both directions—and
quickly accelerated eastward. When Officer Bonney caught
up, the truck slowed down to a crawl, and, at that point, Offi-
cer Bonney pulled the truck over.
When Officer Bonney exited his patrol car, Maddox also
got out and began yelling at him—including yelling “Why the
fuck you stopping me?” as well as other profanities. Officer
Bonney informed Maddox that he had stopped Maddox for
reckless driving and asked to see Maddox’s driver’s license.
Maddox told him that he did not have a driver’s license. Offi-
cer Bonney then asked Maddox to whom the truck belonged,
to which Maddox replied that a friend “gave” him the truck
a few weeks earlier.2 Maddox admitted that he had not regis-
tered the truck and that he had no bill of sale. Officer Bonney
noticed that tabs on the truck were expired and that a tempo-
rary sticker in the rear window of the truck appeared to be
invalid (Officer Bonney observed that the sticker was a
photocopy—rather than the original—and that the dates on
the sticker would have made the 30-day temporary sticker
valid for 31-days even if it had been issued the day of the
stop).
When Officer Bonney ran a computer check on Maddox, he
discovered that Maddox’s license had been suspended. He
then walked back to the truck to place Maddox under arrest
for reckless driving and driving while his license was sus-
pended. Just before handcuffing Maddox, Officer Bonney
2
The majority opinion characterizes Maddox’s statement that he owned
the car as an “admission” of ownership. However, the record reflects that
from Officer Bonney’s perspective, rather than viewing Maddox’s state-
ment that a friend gave him the car as an “admi[ssion] of ownership,” it
raised concerns as to the vehicle’s true owner.
UNITED STATES v. MADDOX 11447
removed a cell phone and key-chain from Maddox’s hands
and set them on the driver’s seat. After walking Maddox back
to the patrol car, Officer Bonney continued his search of Mad-
dox’s person, finding $358 in Maddox’s pants pockets. Offi-
cer Bonney then secured Maddox in the back of the patrol car.
After securing Maddox, Officer Bonney went to retrieve the
items he had seized incident to arrest, which included the key-
chain. On the key-chain was a blue cylindrical container with
a screw top. Upon removing that top, Officer Bonney found
a white crystallized substance he recognized as methamphet-
amine.
ANALYSIS
An officer’s authority to search an arrestee’s person inci-
dent to arrest arises from the existence of a lawful custodial
arrest. Robinson, 414 U.S. at 236. No one disputes the lawful
custodial arrest here. We must only decide whether Officer
Bonney’s search of the key chain container was too remote in
time or place, to be justified as a search of an arrestee’s per-
son incident to arrest. The majority holds this search invalid,
finding that while the key chain container was within Mad-
dox’s immediate control at the time of the arrest, events sub-
sequent to the arrest but prior to the search rendered the
search “unreasonable.” Maj. Op. 11441. The majority bases
its finding of unreasonableness on the fact that, at the time
Officer Bonney returned to further investigate the items
seized in his search incident to arrest, “Maddox’s person was
handcuffed in the back of the squad car, incapable of either
destroying evidence or presenting any threat to the arresting
officer.” Maj. Op. 11441. However, the majority cannot cite
any authority for requiring such an instantaneous assessment
of those items seized upon a search incident to arrest nor can
it cite authority for such a case-specific review. Instead, con-
trary to the majority’s view, the Supreme Court has expressly
instructed that we not engage in a “case-by-case adjudication”
“of the reasons supporting the authority for a search of the
person incident to a lawful arrest,” but that the “how and
11448 UNITED STATES v. MADDOX
where” of the search should generally be left within the judg-
ment of the police officer. Robinson, 414 U.S. at 235.3 Here,
there exist no unusual circumstances requiring this panel to
step outside the general rule set forth in Robinson and ques-
tion Officer Bonney’s judgment. Finally, the very case upon
which the majority primarily relies, United States v. Turner,
926 F.2d 883 (9th Cir. 1990), contradicts the majority view.
There, we held that a search, conducted when the arrestee’s
person was handcuffed and secured in a different room than
that being searched, was still a valid search of an arrestee’s
person incident to arrest.
1. Search of an Arrestee’s Person and the Chimel
Justifications
“A police officer’s determination as to how and where to
3
The majority seeks to avoid the Supreme Court’s clear instruction in
Robinson, finding it “easily distinguishable” because of the difference in
facts between Robinson and the case here. However, Robinson cannot be
so easily cast aside, for two reasons. (1) In Robinson, the Supreme Court
sought to determine the validity of a search of an arrestee’s person inci-
dent to arrest; here, we seek to answer that same issue. Further, Robinson
does not limit its holding to its facts and, as the Supreme Court often does,
the opinion explains the genesis, development, justifications, and limita-
tions of a search of an arrestee’s person incident to arrest. That guidance
simply cannot be ignored because of minor factual differences. (2) In this
common law system, the facts here and those in the binding precedent of
Robinson are simply not that different. In Robinson, the defendant was
arrested for driving without a permit; Maddox was arrested for driving
without a permit. In Robinson, the drugs were found inside of a container
(a cigarette pack) taken from the defendant’s person during the search;
here, the drugs were found inside of a container (key chain container)
taken from Maddox’s person during the search. The difference exists in
the timing of when the arresting officer further inspected that seized con-
tainer. However, in the Robinson opinion, there exists no evidence that the
defendant acted in an aggressive or hostile manner; here, there exists
uncontroverted evidence that Maddox acted in an aggressive and hostile
manner while being arrested. With such similarity, the Supreme Court’s
instruction in Robinson remains, at very least, highly instructive, and cer-
tainly should not be dismissed as “easily distinguishable.”
UNITED STATES v. MADDOX 11449
search the person of a suspect whom he has arrested is neces-
sarily a quick ad hoc judgment which the Fourth Amendment
does not require to be broken down in each instance into an
analysis of each step in the search.” Robinson, 414 U.S. at
235. Thus, the Supreme Court instructed that an appellate
panel’s review should not focus upon the “how and where” of
the search. Nevertheless, both the Supreme Court and this
Circuit have decided cases where they found the search too
remote in time or place to be described as a search incident
to arrest. See, e.g., United States v. Chadwick, 433 U.S. 1, 4-5,
15 (1977) (finding the search of a double-locked luggage
chest that was not searched until an hour and a half after the
arrests, having been transported to a federal building, was not
a proper search incident to arrest), abrogated on other
grounds by California v. Acevedo, 500 U.S. 565 (1991);
Monclavo-Cruz, 662 F.2d at 1287 (finding warrantless search
invalid where officers seized a purse incident to arrest, trans-
ported the purse to Immigration Office, and searched the
purse about an hour after the arrest). Because Chadwick and
Monclavo-Cruz present fact patterns where a search incident
to arrest was found improper, I contrast the facts here with
those cases. While the facts surrounding the searches in Chad-
wick and Monclavo-Cruz were much more extreme in time
and location than the search here, the courts looked to (1) the
time of the search relative to the arrest, and (2) the location
of the search.
In sum, a reviewing panel must respect the inherent reason-
ableness of the officer’s search and the ad hoc nature in which
that search is conducted, by declining to engage in a fact-
based review of the “how and where” of the search; yet a
panel must guard against expanding presumed reasonableness
to searches that clearly are not “incident to arrest.”
Looking to the manner, location, and time of Officer Bon-
ney’s search of the key-chain container, the majority errs in
finding the search should be included among those extreme
cases where the search was found unreasonable. Officer Bon-
11450 UNITED STATES v. MADDOX
ney took the key-chain container directly from Maddox’s
hand at the exact time that he was arresting Maddox. He
momentarily set the container in almost the exact location of
the arrest—in order to handcuff Maddox. He then secured
Maddox in the patrol car and directly returned to retrieve and
assess the evidence found on Maddox’s person. At this point,
Officer Bonney searched the container. Maddox presents no
evidence that the arrest was protracted or that Officer Bonney
did not return directly to the items seized during the search
incident to arrest. Maddox provides no evidence that Officer
Bonney moved the evidence away from the scene of arrest
and seizure before conducting his search. Thus, the search
occurred within a time of mere minutes and within an area of
mere feet; far from the passage of hours or the transportation
to another location that occurred in Chadwick and Monclavo-
Cruz.
The majority also supports its view by arguing that the war-
rantless search of an arrestee’s person is an exception to the
Fourth Amendment’s warrant requirement and, therefore,
only valid if it can be justified either as an attempt to ensure
police safety or preserve evidence. Maj. Op. 11440 (citing
Chimel v. California, 395 U.S. 752, 762-63 (1969)). This
argument fails because, as the Supreme Court has explained,
the validity of a search incident to arrest does not rely upon
satisfaction of those justifications.4 First, although the search
4
In making such argument, I do not concede that the facts cannot rely
upon the twin justifications of officer safety and preservation of evidence.
In fact, the search of the key chain container can be supported by both jus-
tifications. Although the nature of the container does not diminish Mad-
dox’s constitutional protections, Monclavo-Cruz, 662 F.2d at 1287, the
fact that Maddox chose to attach the searched container to his keys sup-
ports the reasonableness of Officer Bonney’s search. Here, the item
searched (a small cylinder with a screw cap) was attached to what amounts
to a tool: the keys to Maddox’s vehicle. Any person wishing to drive his
truck, move his truck, lock or unlock his truck is required to use a set of
keys. Officer Bonney himself would be required to use that same set of
keys if he wished to move or secure Maddox’s truck upon arrest. I cannot
UNITED STATES v. MADDOX 11451
of an arrestee’s person incident to arrest has been, at times,
referred to as an “exception” to the Fourth Amendment’s war-
rant requirement, the Supreme Court has made clear that the
search is not so much an exception to the warrant require-
ment, as it is reasonable by its nature. Gustafson, 414 U.S. at
263-64. Second, Chimel never “purported to limit the tradi-
tional authority of the arresting officer to conduct a full search
of the person of an arrestee incident to a lawful custodial
arrest.” Id. at 264; see also Robinson, 414 U.S. at 236 (“[I]t
is the fact of custodial arrest which gives rise to the authority
to search.”). Therefore, the majority’s reliance upon the
necessity to demonstrate such justifications fails.
2. United States v. Turner
The majority relies upon Turner, where a search incident to
arrest was found valid, in order to invalidate the search of
Maddox. However, applying Turner to the facts here, it rein-
forces, rather than conflicts with, the Supreme Court’s prece-
dent in Chadwick and the Ninth Circuit case of Monclavo-
Cruz. For these reasons, I find the majority’s reliance upon
Turner unconvincing.
Turner adopted a two-fold inquiry to aid a reviewing panel
in determining whether a search was a valid search of an
arrestee’s person incident to arrest. Turner, 926 F.2d at 887.
Turner requires a reviewing panel first determine whether the
searched item was “within the arrestee’s immediate control at
the time he was arrested” and next determine whether the
“events occurring after the arrest but before the search made
the search unreasonable.” Id. First, there can be no dispute
agree with the conclusion that the justifications of officer safety and
destruction of evidence—upon which the majority so heavily relies—do
not further support the search of a small unlocked container attached to a
tool which Officer Bonney would either be forced to use himself or to give
to another person.
11452 UNITED STATES v. MADDOX
here that the key chain container was “withing [Maddox’s]
immediate control at the time he was arrested.” Neither party
disputes that Maddox was arrested while at his car and that
the keys were taken from Maddox’s hand at the very moment
of arrest. Second, there exist no extraordinary events occur-
ring between the arrest and the search rendering Officer Bon-
ney’s further investigation of the seized item unreasonable.
A comparison of the facts in Turner also reveals the valid-
ity of Officer Bonney’s search. In Turner, we found the
search incident to arrest valid, where the officers did not
search baggies, found on the bed where the defendant had
been arrested, until after the defendant was cuffed and secured
in another room. 926 F.2d at 886, 888.5 Those baggies were
found to contain cocaine base. Id. The Turner opinion does
not explain whether the baggies searched were clear or
opaque; it does not tell us how the baggies were closed, how
they were searched or the tools necessary to open the baggies.
Id. Instead, Turner provides a cursory conclusion that the
search was valid, because the panel could not say that the offi-
cers’ concerns for their own safety at the time of arrest “were
unfounded.” Id. at 888. As discussed above, I also cannot find
Officer Bonney’s actions unfounded given (1) the nature of
Maddox’s erratic driving, (2) his immediate and aggressive
confrontational behavior, and (3) the suspicious circum-
stances surrounding the vehicle, combined with Robinson’s
instruction that reviewing courts refrain from unnecessarily
5
The majority parses the location of the defendant to the searched item
in much greater detail than that found in Turner. In Turner, the baggies
were discovered in the same bed where Turner was arrested (not in his
pocket or in his hands), and were not searched until after he was removed
from the room and secured. Yet, the majority does not challenge that the
search was a valid search of an arrestee’s person incident to arrest. Here,
the key chain container was taken directly from Maddox’s hand, but not
searched until after he was removed from the area and secured in the
patrol car. Yet, the majority states that, under such facts, the search could
not possibly be described as a search of Maddox’s person. Maj. Op.
11441-42.
UNITED STATES v. MADDOX 11453
second-guessing the officer’s judgment regarding the neces-
sary actions to protect his safety, see 414 U.S. at 235. Further-
more, before looking to the two-fold inquiry, the panel in
Turner reiterated this Circuit’s general principle for searches
incident to arrest: “Such a search incident to arrest must be
conducted at ‘about the same time as the arrest.’ ” Turner,
926 F.2d at 887 (quoting Untied States v. Andersson, 813 F.2d
1450, 1456 (9th Cir. 1987)). Here, Officer Bonney’s search of
the key-chain container satisfies this standard, as it was
“about the same time as the arrest.”
Lastly, here the majority invalidates a search where an offi-
cer, without the aid of other officers, deems it necessary to
secure a hostile and confrontational arrestee before immedi-
ately returning to those items taken directly from the
arrestee’s hands during the arrest. Therefore, it seems unlikely
that the majority, if presented with the facts of Turner, would
find a search valid where a prepared team of officers arrested,
secured, and moved the arrestee before searching the bed
upon which he was found.
CONCLUSION
The parties do not dispute that the arrest of Maddox was a
lawful custodial arrest. The parties do not dispute that the
item searched was taken from Maddox’s hand at the exact
moment he was arrested. The parties do not dispute that the
item was not moved from the place of seizure and was
searched within minutes of arrest. Therefore, I find that the
search of Maddox’s key-chain container was a lawful search
of an arrestee’s person incident to arrest. I dissent.