Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 2003 Decided July 8, 2003
No. 01-3109
UNITED STATES OF AMERICA,
APPELLEE
v.
JEROME WENDELL MAPLE, A/K/A WILLIAM LEE JOHNSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(00cr00364–01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. On the briefs were A. J.
Kramer, Federal Public Defender, and Sandra G. Roland,
Assistant Federal Public Defender.
Matthew T. Martens, Assistant United States Attorney,
argued the cause for appellee. On the brief were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard, Jr., United States Attorney, John R. Fisher, Roy W.
McLeese III, T. Anthony Quinn, and Mary B. McCord,
Assistant United States Attorneys.
Before: SENTELLE and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
Opinion dissenting in part filed by Circuit Judge ROGERS.
SILBERMAN, Senior Circuit Judge: Appellant Jerome Maple
contends that D.C. Metropolitan Police Department (MPD)
Officer James McCourt’s decision to open a closed compart-
ment in Maple’s car to relocate a cellular phone while secur-
ing the vehicle was an unreasonable search under the Fourth
Amendment. He also raises a Second Amendment challenge
to his conviction under D.C. law for unlicensed gun posses-
sion, an argument he did not make below. We affirm the
conviction. Officer McCourt’s conduct was not a search and
hence did not implicate the Fourth Amendment, and Maple
has not preserved his Second Amendment claim.
I.
On September 17, 2000, at about midnight, Officer McCourt
was working patrol while parked in his marked police car
near the intersection of North Capitol and Buchanan Streets
in the northeast section of the District of Columbia. McCourt
heard screeching tires to his left and watched as a small blue-
gray Datsun passed him near the intersection of North
Capitol and Rock Creek Church Streets at approximately 35–
40 miles per hour, a high speed for the area. McCourt
activated his police lights and the car pulled over into the far
northbound lane of North Capitol Street. He radioed the
car’s license plate number to the police dispatcher and two
other officers soon arrived on the scene, MPD Officer Ellerbe
and a Metro Transit Police Officer.
Appellant was the driver and sole occupant of the vehicle.
He did not have a driver’s license with him. Instead, he
3
provided McCourt with the name, date of birth, and social
security number for William Lee Johnson, as well as a
temporary Maryland registration card under the name Je-
rome Maple. The dispatcher then notified McCourt that Mr.
Johnson’s license had been suspended. McCourt arrested
Maple for driving with a suspended license and issued traffic
tickets for that violation, as well as his speeding.
Officer Ellerbe took Maple to the police station. Because
Maple’s car was in the right lane of a busy thoroughfare,
McCourt decided to relocate the vehicle to a legal parking
space on a side street, a usual practice under these circum-
stances. He had the option of impounding the car, but chose
not to because he wanted to spare Maple the added expense.
McCourt entered the car, drove a half block north, turned left
onto a side street and parked the car in a legal spot against
the curb. As he leaned over the passenger’s seat to lock the
passenger door, he saw a cellular phone on the floor. Con-
cerned that someone would see it and break into the car,
McCourt tried to place the phone in the glove compartment,
but it was either inaccessible or nonexistent, he could not
remember which. Looking for an alternative, he noticed that
there was also a compartment in the console between the
bucket seats. He lifted the top to put the phone inside. As
he raised the lid, he saw a silver pistol in the compartment.
McCourt immediately called the dispatcher to request that an
evidence technician come to recover the gun. He then drove
Maple’s car back to North Capitol Street, where he had left
his own police cruiser.
When the evidence technician, Officer Lazarus, arrived,
McCourt showed him the pistol in the console. As Lazarus
focused on the compartment where McCourt was pointing,
the technician noticed a small piece of cellophane, wrapped up
and tied in a knot, sitting on the console between the com-
partment where the pistol was found and the gearshift lever.
McCourt, surprised that he had not noticed the package
himself, picked it up and saw that it contained what appeared
to be crack cocaine. The car was then fully searched but no
additional contraband or weapons were found.
4
At the suppression hearing, Maple argued, inter alia, that
McCourt violated the Fourth Amendment by opening the
closed compartment without a warrant and in violation of the
department’s procedures. He also argued that the search
could not be justified as an exercise of the police department’s
‘‘community caretaking function,’’ since the existence of a cell
phone in plain view did not pose a serious threat to public
safety. Judge Friedman, finding McCourt a ‘‘very, very
credible witness,’’ denied the motion to suppress, holding that,
pursuant to the traffic maintenance powers of the police, the
officer had a right to move the car off of North Capitol Street
and to secure it by locking it up. He thought that McCourt’s
attempt at securing the cell phone in the compartment was a
reasonable exercise in service of the community and not a
violation of the Fourth Amendment.
At trial before Judge Johnson (Judge Friedman fell ill),
Officer Lazarus testified that he recovered from the car a .380
caliber Davis Industries semiautomatic pistol with four
rounds in the magazine, as well as a plastic bag containing 6.5
grams of cocaine base. The government also introduced
evidence that Maple had been arrested previously for crack
cocaine possession. The jury returned verdicts of not guilty
on the charges of possession with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii), and possession of a firearm
during a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1). Maple was found guilty, however, on the remain-
ing charges of possession of cocaine base in excess of five
grams, in violation of 21 U.S.C. § 844(a), and carrying a pistol
without a license, in violation of D.C. CODE ANN. § 22–3204(a)
(1981) (now codified at D.C. CODE ANN. § 22–4504(a) (2001)).
II.
This case has undergone something of a metamorphosis.
The district judge thought Officer McCourt’s opening of the
console in order to deposit the cell phone was justified under
what the Supreme Court has termed the ‘‘community caretak-
5
ing function’’ of the police. And the government’s brief
strongly supports that position.
It is common ground between the parties that if the police
wish to search a car without a warrant to inventory its
contents they must act in accordance with established proce-
dures. See Florida v. Wells, 495 U.S. 1, 4 (1990); Colorado v.
Bertine, 479 U.S. 367, 374 n.6 (1987). But the government
contends that this situation is not governed by the require-
ments of an inventory search, because the officer’s objective
in moving the car and opening the console was to protect
defendant’s property. Its brief relies on Cady v. Dombrow-
ski, 413 U.S. 433, 441 (1973), in which the Supreme Court
first used the community caretaking function rationale.
There, local Wisconsin police officers arrived at the scene of a
severe car accident involving an intoxicated Chicago police
officer, Chester J. Dombrowski. He was arrested for drunk
driving and taken to the station. Aware that all Chicago
officers were required by regulation to carry service revolvers
at all times and unable to get the location of the gun from the
incoherent driver, the Wisconsin police performed an initial
search of the front seat and glove compartment. They also
returned to search the car again later that night after it had
been towed to a local garage and left unguarded. Although
the Wisconsin officer did not find the gun, he did uncover
items soaked with blood on the floor of the car and in the
trunk. When Dombrowski was confronted with the materials
back at the station, he was prompted to confess that ‘‘there
was a body lying near the family picnic area at the north end
of his brother’s farm.’’ Cady, 413 U.S. at 437 (internal
quotations omitted). After the body of one Herbert McKin-
ney was discovered, warrants were issued leading to the
discovery of additional evidence connecting Dombrowski to
the crime, and he was eventually convicted of first-degree
murder. The Court upheld the warrantless searches of Dom-
browski’s vehicle at the scene and at the private garage, since
the officers had reacted reasonably to the accident out of
‘‘concern for the safety of the general public who might be
endangered if an intruder removed a revolver from the trunk
of the vehicle.’’ Id. at 447; see also Smith v. Thornburg, 136
6
F.3d 1070, 1075 (6th Cir. 1998) (concluding that officers were
entitled to make a warrantless entry into an unoccupied
vehicle left with its motor running in an area known as a
dumping ground for stolen vehicles ‘‘in order to protect
themselves and the public from the danger created by the
manner in which plaintiff’s car was left unattended’’).
Still, as the government acknowledged at oral argument, in
Cady the Court noted that the state court had found as a fact
that ‘‘the search of the trunk to retrieve the revolver was
standard procedure in (that police) department, to protect the
public from the possibility that a revolver would fall into
untrained or perhaps malicious hands.’’ Cady, 413 U.S. at
443 (internal quotations omitted). And in our case it does not
appear that the Metropolitan Police Department’s regula-
tions, which extensively deal with inventory searches and
impoundments, address this situation. See generally MPD
Gen. Order 602(I) (May 26, 1972).1
The government also suggested at oral argument, however,
that ‘‘there is a third category of cases that’s identified in
Cady by citation to [sic] United States v. Harris, which is not
1 The dissent suggests that the specific rule violated provides that
the automobile ‘‘shall not be inventoried in any way’’ unless taken to
a police facility. Id. at 602(I)(B)(3)(b). Dissent Op. at 5. But
Officer McCourt clearly was not conducting an inventory, defined
by the General Order as ‘‘an administrative process by which items
of property are listed and secured.’’ Id. at 602(I)(B). Nor in fact
did McCourt ‘‘search’’ the vehicle according to the procedures, since
the Order describes a search as ‘‘an examination of a person, place
or thing with a view toward discovery of weapons, contraband,
instrumentalities of a crime, or evidence.’’ Id. at 602(I)(A) (empha-
sis added). Furthermore, contrary to the dissent’s suggestion,
Dissent Op. at 6, given the detailed distinctions in the Order
between impoundment and non-impoundment contexts, see id. at
602(I)(B)(3–4), there is no reason to assume that the procedures for
handling personal property in impounded vehicles, (those ‘‘taken
into police custody and placed on police department property or TTT
near a police facility’’), id. at 602(I)(B)(4), would also apply to cars
that have not been taken to a designated police facility.
7
cited in our brief, but TTT seems to be more analogous,
frankly, to this situation.’’ (Oral Argument Tr. at 18, April 7,
2003). Counsel went on to point out that in Harris, the Court
noted that although there was an intrusion, ‘‘it was not a
search in the sense of hunting for something.’’ Id.
Actually, Harris v. United States, 390 U.S. 234 (1968), a
short, per curiam opinion of the Supreme Court, held that
when an officer, after having conducted an inventory search
of an impounded vehicle (pursuant to regulations of the
MPD), opened a door in order to roll up the window for
security purposes, (the district court had determined that the
officer went to raise the window to protect the car’s interior
from rain), see Harris v. United States, 370 F.2d 477, 478–79
(D.C. Cir. 1966), and found what turned out to be a robbery
victim’s automobile registration card, he was not conducting a
search at all. ‘‘[T]he discovery of the card was not the result
of a search of the car, but of a measure taken to protect the
car while it was in police custody. Nothing in the Fourth
Amendment requires the police to obtain a warrant in these
narrow circumstances.’’ Harris, 390 U.S. at 236 (emphasis
added). In other words, Harris appears to recognize that not
every intrusion, not every opening up of a door, window, or a
console is a search even implicating the Fourth Amendment.
The government at oral argument seemed to be shifting
somewhat, without defendant’s objection, to that rationale to
affirm the district court.
A more recent Supreme Court case, Kyllo v. United States,
533 U.S. 27 (2001), supports this reading of Harris. Al-
though the Court’s holding is not particularly relevant–that
where the government uses a thermal imaging device to
determine whether marijuana is grown in a house it is
conducting a search governed by the Fourth Amendment,
even though there is no physical intrusion–the opinion, in
passing, gives its definition of a search. The Court observes
that ‘‘[w]hen the Fourth Amendment was adopted, as now, to
‘search’ meant ‘[t]o look over or through for the purpose of
finding something; to explore; to examine by inspection; as,
to search the house for a book; to search the wood for a
thief.’ ’’ Kyllo, 533 U.S. at 33 n.1 (2001) (quoting N. Webster,
8
An American Dictionary of the English Language 66 (1828)
(reprint 6th ed. 1989)) (first emphasis added).
The opinion goes on to explain that Supreme Court juris-
prudence–which focuses on a person’s subjective expectation
of privacy in determining whether a search takes place–is
really asking whether a search governed by the Fourth
Amendment occurred. See id. at 32–33. In other words, the
anterior question before any court is whether a search of any
kind has occurred, and only after that question is answered in
the affirmative are we to consider the target’s expectation of
privacy.
It is undisputed in this case that when McCourt opened the
console he was not looking for ‘‘something.’’ It follows then
that he did not conduct a search and therefore the Fourth
Amendment was not implicated. His opening of the console
should be regarded no differently than his opening of the car
door in order to drive the car to a safer place. Appellant
does not even claim that the door opening was a search–nor
could he in light of Harris. The same analysis would apply,
let us say, if an officer legitimately in a house to interview a
witness attempts to leave the house and inadvertently walks
into a closet next to an exit door and sees guns and drugs.
These situations are somewhat analogous to the plain view
exceptions, see, e.g., Arizona v. Hicks, 480 U.S. 321, 328
(1987) (‘‘a truly cursory inspection–one that involves merely
looking at what is already exposed to view, without disturbing
it–is not a ‘search’ for Fourth Amendment purposes’’), al-
though the latter are typically extensions of a legitimate
search whereas in our case there was no search at all.
To be sure, if a search had occurred, the reasonableness of
the officer’s actions would be judged by an objective stan-
dard, not his subjective intentions. See United States v.
Magnum, 100 F. 3d 164, 170 (D.C. Cir. 1996) (citing Whren v.
United States, 517 U.S. 806 (1996)). And certainly an explor-
atory search, which does not focus on any particular object, is
no less a search than one which seeks a specified item. See
Bond v. United States, 529 U.S. 334 (2000). But we think our
dissenting colleague is incorrect in arguing that any police
9
intrusion into a closed compartment or closed door, regard-
less of the circumstances, is per se a search if a defendant had
privacy expectations in the content of the compartment or
room. No case that we have found has so held.
Appellant argues that to sanction Officer McCourt’s ac-
tions–even if they were entirely innocent–is to open the door
to police misbehavior. We are warned that if an officer were
to find in a car any object of value, he would have an excuse
to open a locked glove compartment or even a trunk. But
that argument discounts the ability of district judges to detect
subterfuge. The greater the effort an officer devotes to
opening a car’s closed compartment the more likely his
purpose is, at least in part, to search. Still we agree with
appellant’s suggestion that the much better practice, (which
the police department could adopt), would be to require an
officer to take the valuable object to the station with the car
keys.
In sum, we think it is unnecessary to decide whether the
community caretaking exception extends to the facts of this
case because no search took place. Officer McCourt’s discov-
ery of the gun was a purely inadvertent byproduct of his
opening of the console to place the cell phone inside.2
III.
Maple contends that the gun licensing statute he was
convicted under, D.C. Code § 22–4504(a), effectively operates
as a near total prohibition on possession of any type of
firearm by anyone in the District of Columbia, thereby in-
fringing upon his right to ‘‘bear arms’’ under the Second
Amendment.
The statute reads in relevant part:
2 It is not clear to us that all warrantless searches conducted
pursuant to the community caretaking exception must be in accor-
dance with formal procedures. See United States v. Markland, 635
F.2d 174, 176 (2nd Cir. 1980) (holding that an officer’s opening of a
‘‘surprisingly heavy’’ beverage container at the scene of an auto
accident was justified because it ‘‘could have contained anything
from beer to bullion or a bomb’’).
10
No person shall carry within the District of Colum-
bia either openly or concealed on or about their
person, a pistol, without a license issued pursuant to
District of Columbia law, or any deadly or dangerous
weapon capable of being so concealed.
D.C. CODE ANN. § 22–4504(a). And the Second Amendment
provides that:
A well regulated Militia, being necessary to the
security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
U.S. CONST. amend. II. Because Maple did not raise this
contention in the district court, we cannot address the claim
unless there is an (1) ‘‘error,’’ (2) that is ‘‘plain,’’ (3) that
‘‘affects substantial rights,’’ and (4) ‘‘seriously affects the
fairness, integrity, or public reputation of judicial proceed-
ings.’’ Johnson v. United States, 520 U.S. 461, 467 (1997)
(internal citations omitted).
Maple suggests that it would be ‘‘plain error’’ to refuse to
consider the constitutionality of the D.C. law after United
States v. Emerson, 270 F.3d 203, 260–61 (5th Cir. 2001)
(upholding the constitutionality of 18 U.S.C. § 922(g)(8),
which prohibits persons who are subject to domestic restrain-
ing orders from possessing firearms, but recognizing that the
Second Amendment guarantees a personal right to possess
them), cert. denied, 536 U.S. 907 (2002),3 and the correspond-
ing Justice Department’s brief for the United States in
opposition to the petition for a Writ of Certiorari (as well as
3 The court stated:
Although, as we have held, the Second Amendment does
protect individual rights, that does not mean that those
rights may never be made subject to any limited, narrowly
tailored specific exceptions or restrictions for particular
cases that are reasonable and not inconsistent with the
right of Americans generally to individually keep and bear
their private arms as historically understood in this coun-
try.
Id. at 261 (emphasis in the original).
11
its related internal memoranda sent to United States’ Attor-
neys).
Although there are cases in which it is appropriate to hear
a constitutional claim not raised at trial, see, e.g., Johnson,
520 U.S. at 467–70, clearly this is not one of them. Convic-
tions for unlicensed gun possession have been upheld for
several years in the District of Columbia. See, e.g., United
States v. Toms, 136 F.3d 176 (D.C. Cir. 1998); Staten v.
United States, 562 A.2d 90 (D.C. 1989); see also United
States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000) (declining
to reach appellant’s Second and Fifth Amendment challenges
to his conviction under 18 U.S.C. § 922(g)(8) for the posses-
sion of a firearm while subject to a court order, because he
did not raise the issue below).
Accordingly, the judgment of the district court is
Affirmed.
1
ROGERS, Circuit Judge, dissenting in part: The Fourth
Amendment protects ‘‘[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreason-
able searches and seizuresTTTT’’ U.S. Const. amend. IV.
These protected ‘‘effects’’ include automobiles, Preston v.
United States, 376 U.S. 364, 366–67 (1964), and although a
person ‘‘has a lesser expectation of privacy in a motor vehicle
because TTT [i]t travels public thoroughfares where both its
occupants and its contents are in plain view,’’ New York v.
Class, 475 U.S. 106, 113–14 (1986) (quoting Cardwell v. Lewis,
417 U.S. 583, 590 (1974) (plurality opinion)), ‘‘a car’s interior
TTT is nonetheless subject to Fourth Amendment protection
from unreasonable intrusions by the police,’’ Class, 475 U.S.
at 114–15. The government’s ‘‘intrusion into a particular
area, whether in an automobile or elsewhere,’’ violates the
Fourth Amendment if ‘‘the area is one in which there is a
‘constitutionally protected reasonable expectation of priva-
cy.’ ’’ Id. at 112 (citing Katz v. United States, 389 U.S. 347,
360 (1967) (Harlan, J., concurring)). Because the government
failed to offer evidence that Maple, upon his arrest for traffic
violations, had waived a reasonable expectation of privacy in a
closed compartment of his car, which had not been impounded
by the police, the warrantless search of that compartment
was impermissible under the Fourth Amendment.
The court’s holding hinges on its misconception of what
constitutes a search under the Fourth Amendment. It is long
settled that ‘‘ ‘[a] search occurs when an expectation of priva-
cy that society is prepared to consider reasonable is infring-
ed.’ ’’ Soldal v. Cook County, 506 U.S. 56, 63 (1992) (quoting
United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal
quotations omitted)). Or stated conversely, ‘‘a Fourth
Amendment search does not occur TTT unless ‘the individual
manifested a subjective expectation of privacy in the object of
the challenged search,’ and ‘society [is] willing to recognize
that expectation as reasonable.’ ’’ Kyllo v. United States, 533
U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476 U.S.
207, 211 (1986)). A closed, opaque compartment by its nature
secures its contents from public view — as the officer indicat-
ed was his intention with respect to Maple’s cell phone — and
2
when Maple was arrested, the console in his car was closed.
The government, which has the burden of proving the lawful-
ness of the search, Mincey v. Arizona, 437 U.S. 385, 390–91
(1978), offered no evidence that Maple did not have a privacy
interest in the contents of the console or had waived that
interest, and the district court made no finding that the
closed console was not a repository of Maple’s personal
effects or that Maple had no expectation of privacy, much less
that the officer had probable cause to open it. See Class, 475
U.S. at 118; Cardwell, 417 U.S. at 591; cf. California v.
Acevedo, 500 U.S. 565, 579 (1991); United States v. Ross, 456
U.S. 798, 800, 825 (1982).
To salvage the seizure of Maple’s property, the court
adopts the novel notion that a police officer who opens a
closed compartment in a defendant’s car is not engaged in a
search under the Fourth Amendment. Op. at 2, 8. This is
so, the court explains, because the officer’s subjective intent
was to save Maple the expense of impounding his car and to
protect his car by securing from public view a cell phone that
he had left on the floor of his car. Op. at 3, 8. ‘‘In
determining whether a TTT search is reasonable under the
Fourth Amendment,’’ however, ‘‘courts look to objective evi-
dence, not subjective intentions.’’ United States v. Magnum,
100 F.3d 164, 170 (D.C. Cir. 1996) (citing Whren v. United
States, 517 U.S. 806 (1996)). In other words, ‘‘the issue is
not’’ the law enforcement officer’s ‘‘state of mind’’ — whether
he was intentionally rummaging about for contraband or
wished to find something in particular — ‘‘but the objective
effect of his actions’’ — whether a reasonable expectation of
privacy was infringed. Bond v. United States, 529 U.S. 334,
338 n.2 (2000). For instance, in holding that the search of the
inside of a car (to remove papers on the dashboard obscuring
the vehicle identification number that would otherwise be in
plain view) was ‘‘sufficiently unintrusive to be constitutionally
permissible,’’ the Supreme Court in Class found significant
that the officer ‘‘did not reach into any compartments or open
any containers.’’ Class, 475 U.S. 118–19. That finding con-
trasts sharply with the officer’s opening of the closed console
3
in Maple’s car, which upset Maple’s reasonable expectation of
privacy, regardless of the officer’s purpose.
Although the court labors to support its approach by
pointing to a definition of ‘‘search’’ in Kyllo, 533 U.S. at 33
n.1, the court misreads that opinion. In the court’s view, ‘‘the
anterior question before any court is whether a search of any
kind has occurred, and only after that question is answered in
the affirmative are we to consider the target’s expectation of
privacy.’’ Op. at 8. But these two inquiries cannot be
decoupled because the target’s expectation of privacy itself
defines whether a search occurred at all. In Kyllo the
Supreme Court reaffirmed the longstanding proposition that
‘‘a Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society recog-
nizes as reasonable.’’ 533 U.S. at 33 (citing Katz, 389 U.S. at
361 (Harlan, J., concurring)). Then, after explaining that the
scope of a search is defined by privacy expectations, the
Court held that information obtained through thermal imag-
ing of a private home ‘‘was the product of a search,’’ rejecting
the view that information was not obtained regarding the
interior of the home. Kyllo, 553 U.S. at 35; see also id. at
n.2. The holding of Kyllo is thus more relevant than the
court suggests, Op. at 7–8, for it reenforces the importance of
privacy expectations in Fourth Amendment analysis. More-
over, Kyllo’s holding makes clear that the dictum relied on by
the court cannot be construed as exempting ‘‘inadvertent’’
discoveries in the course of caretaking, Op. at 9, from the
Fourth Amendment’s protections. Whether deliberate or
inadvertent, a governmental intrusion is a search where it
interferes with an individual’s reasonable privacy expecta-
tions. Cf. Horton v. California, 496 U.S. 128, 141 (1990).
The court errs in following the government’s reliance on
Harris v. United States, 390 U.S. 234 (1968) (per curiam), for
the principle that police officers may seize property found in
automobiles when they are ‘‘not conducting a search at all.’’
Op. at 7. Harris cannot support the conclusion that no
search occurred of Maple’s car. In Harris, the defendant’s
car was impounded, and the officer discovered the robbery
victim’s car registration while taking measures ‘‘to protect the
4
[defendant’s] car while it was in police custody,’’ as required
by a regulation of the D.C. Metropolitan Police Department
(‘‘MPD’’). Upon opening the passenger door in order to close
the windows and thereby secure the car against the elements,
in compliance with the MPD regulation, the officer saw the
victim’s car registration on the metal stripping. Harris, 390
U.S. at 235–36. Maple’s car, by contrast, had not been
impounded, and the officer was not acting pursuant to stan-
dardized departmental procedures in opening the console.
Moreover, the registration card in Harris ‘‘was plainly visi-
ble,’’ and ‘‘[i]t has long been settled that objects falling in the
plain view of an officer who has a right to be in the position to
have that view are subject to seizure and may be introduced
in evidence.’’ Id. at 236 (citations omitted). But Maple’s
gun, unlike his cell phone, was not in plain view; it was
located in a closed compartment and was discovered only
after the officer opened the compartment without Maple’s
authorization. Thus, the ‘‘narrow circumstances’’ of Harris,
id., where there may not be a search because the officer is
acting pursuant to police procedures for securing impounded
cars and inadvertently discovers an object in plain view, do
not cover the opening of the console in Maple’s car.
Under the Supreme Court’s precedents, then, the officer’s
opening of the closed compartment in Maple’s car constituted
a search, and a warrantless search of private property is per
se unreasonable unless it falls within one of the ‘‘ ‘few specifi-
cally established and well-delineated exceptions’ ’’ to the war-
rant requirement. Mincey, 437 U.S. at 390 (quoting Katz,
389 U.S. at 357). In determining whether the officer’s search
of the closed console was lawful under the Fourth Amend-
ment, the Supreme Court’s decision in Cady v. Dombrowski,
413 U.S. 433 (1973), is instructive. In Cady, the Supreme
Court held that a warrantless search of the trunk of a car was
not unreasonable under the Fourth and Fourteenth Amend-
ments because the police had reason to believe that the trunk
contained a gun, the car was vulnerable to intrusion by
vandals, and public safety could have been endangered had an
intruder removed a gun from the trunk of the vehicle. Id. at
447–48. The court observed that ‘‘local police officers TTT
5
frequently investigate vehicle accidents in which there is no
claim of criminal liability and engage in what TTT may be
described as community caretaking functions, totally divorced
from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.’’ Id. at 441.
The Supreme Court in Cady emphasized, however, that the
police had (1) exercised a form of control over the car, and (2)
acted under ‘‘standard procedure in (that police) department.’’
Id. at 442–43. In other words, because the police had taken
temporary custody of the car, the search was not merely the
subjective choice of the officer conducting the search. See
also Harris, 390 U.S. at 235.
Here, the police officer exercised a form of control over
Maple’s car, but the district court made no finding that the
officer acted pursuant to established procedures of the MPD
when he opened the console to secure the cell phone and,
thereby, the car. The officer testified that he routinely
relocates cars to legal parking spaces following traffic arrests,
but he did not claim that MPD officers routinely open closed
compartments in private automobiles to secure a defendant’s
personal property. Nor did the government, which has the
burden, Mincey, 437 U.S. at 390–91, introduce any such
evidence.
Under the MPD’s policy and procedures governing Auto-
mobile Searches and Inventories, the officer was not autho-
rized to open the console in order to secure the cell phone.
See generally MPD Gen. Order 602(I) (May 26, 1972), re-
printed in Joint Appendix at 37–52. The applicable proce-
dures provide that if a prisoner’s car is not taken to a location
at or near a police facility, ‘‘it shall not be inventoried in any
way,’’ id. at 602(I)(B)(3)(b), an ‘‘inventory’’ being defined as
‘‘an administrative process by which items of property are
listed and secured,’’ id. at 602(I)(B) (emphasis added). Fur-
ther, such car shall not be searched unless: (1) the arresting
officer does so in the presence of the defendant at the time of
his arrest, in which case the officer may search ‘‘only those
areas within the immediate control of the defendant (the area
from which the arrested person might gain possession of
weapons or destructible evidence),’’ id. at 602(I)(A)(1)(a)(1);
6
or (2) a police officer has probable cause to believe that the
car contains the fruits, instrumentalities, contraband, or evi-
dence of the crime for which the defendant was arrested–
exceptions not relevant in this case. Id. at 602(I)(A)(1)(a)(1)
& (b)(1). Even if Maple’s car had been taken to a location at
or near a police facility, MPD policy only authorizes the
officer to remove ‘‘personal property which can easily be seen
from outside the vehicle and which reasonably has a value in
excess of $25,’’ to take the property to the police facility, and
to enter it on a property log for later return to the defendant.
Id. at 602(I)(B)(3)(b). Instead, in searching for a place to
secure Maple’s cell phone, the officer decided to open a closed
compartment in Maple’s car.
Absent personal property found inside a car that might
pose a danger to the police officer or to the public, thus
affording probable cause for the officer to secure the weapon
and prevent it from falling into the wrong hands, see Cady,
413 U.S. at 442, Cady required the officer to act in accordance
with the MPD’s established procedures for protecting person-
al property in a car that is in temporary police custody.
Doing so ensures that any police intrusion into private prop-
erty is limited in scope to the extent necessary to carry out
the caretaking function, South Dakota v. Opperman, 428 U.S.
364, 375 (1976), thereby preventing warrantless searches,
such as inventories, id. at 367–76, from becoming ‘‘a ruse for
general rummaging in order to discover incriminating evi-
dence.’’ Florida v. Wells, 495 U.S. 1, 4 (1990). To the extent
that MPD procedures did not authorize the officer to open
closed compartments inside an unimpounded car in order to
secure the defendant’s personal property, the officer had no
other authorized reason to open the console. Neither of the
exceptions under MPD’s established procedures apply: the
search did not occur in Maple’s presence at the time of his
arrest, MPD Gen. Order 602(I)(A)(1)(a)(1), and the officer did
not testify, nor did the district court find, that the search was
conducted with probable cause associated with the crime for
which Maple was arrested, id. at 602(I)(A)(1)(b)(1). Although
the court resists applying MPD General Order 602 according
to its plain terms, see, e.g., Op. at 6 & n.1, the established
MPD procedures provide for securing personal property in
7
plain view: the officer should take the car to a location at or
near a police facility if the car is not impounded. Nothing
since Cady suggests that the Supreme Court has abandoned
its emphasis on the need for the police to act pursuant to
‘‘standardized criteria’’ or ‘‘established routine’’ when opening
containers. See Wells, 495 U.S. at 4–5; cf. Colorado v.
Bertine, 479 U.S. 367, 375–76 (1987); Illinois v. Lafayette,
462 U.S. 640, 648 (1983); Opperman, 428 U.S. at 375–76.
Because the officer’s opening of the console does not fall
within one of the ‘‘few specifically established and well-
delineated exceptions’’ to the warrant requirement, Mincey,
437 U.S. at 390, the reasonableness of the officer’s conduct is
to be determined by reference to whether he followed the
MPD’s procedures. See Wells, 495 U.S. at 3–4; Opperman,
428 U.S. at 376; United States v. Duguay, 93 F.3d 346, 351–
52 (7th Cir. 1996); United States v. Marshall, 986 F.2d 1171,
1174–76 (8th Cir. 1993); United States v. Johnson, 936 F.2d
1082, 1084 (9th Cir. 1991). MPD General Order 602 estab-
lished, and thus restricted, the manner in which a police
officer can protect a defendant’s property, and nothing in
Harris, on which the court relies, Op. at 7, is to the contrary,
for there the officer was acting pursuant to established police
department procedures. Harris, 390 U.S. at 235. Nor does
the record here show inadvertent conduct under the plain
view doctrine, Op. at 8; the officer spotted the gun only after
he opened the closed console.
Rather than recognize the limited exceptions to the per se
rule for warrantless searches, see Mincey, 437 U.S. at 390;
Cady, 413 U.S. at 439, the court acknowledges the Supreme
Court’s jurisprudence, Op. at 5, and proceeds to ignore Ma-
ple’s privacy interest in his car console. See Kyllo, 533 U.S.
at 33; cf. Class, 475 U.S. at 118. Even assuming the privacy
interest in an unlocked, closed compartment is of a lesser
order than the privacy interest in a locked glove compartment
or, as in Wells, 495 U.S. at 2, in a locked trunk, the salient
8
point is that whatever his good intentions, the officer failed to
follow established police policy and procedures for securing a
defendant’s property. With the court’s new exception to the
per se rule, accomplished by redefining when a search occurs
under the Fourth Amendment, police officers who profess not
to be engaged in criminal investigation are free to devise
their own procedures for protecting personal property inside
a defendant’s car — free even to open closed compart-
ments — notwithstanding the MPD’s established policy limit-
ing warrantless searches to particular circumstances.
Accordingly, because the police officer conducted a war-
rantless search of Maple’s car console without Maple’s con-
sent or probable cause, and in opening the console was not
following established police procedures for securing a defen-
dant’s property, the district court erred in denying the motion
to suppress the evidence seized by the police from the console
as a violation of Maple’s Fourth Amendment rights. Because
I concur in the holding that Maple did not preserve his
Second Amendment claim, and because the drugs were in
plain view on top of the console, Harris, 390 U.S. at 236, I
would reverse the judgment and remand the case for the
retrial that Maple seeks, Appellant’s Br. at 22, on the drug
charge.