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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 2003 Decided November 10, 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
(No. 00cr00364–01)
–————
On Appellant’s Petition for Rehearing En Banc
–————
Before: SENTELLE and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This case comes before the court
on Jerome Maple’s petition for rehearing and rehearing en
banc (‘‘Petition’’) of the court’s rejection of his Fourth
Amendment challenges to his convictions of possessing co-
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
caine base in excess of five grams, see 21 U.S.C. § 844(a), and
carrying a pistol without a license, see D.C. CODE ANN. § 22–
3204(a) (1981) (now codified at D.C. CODE ANN. § 22–4504(a)
(2001)). See United States v. Maple, 334 F.3d 15 (D.C. Cir.
2003); but see id. at 21-26 (Rogers, J., dissenting in part).
We grant rehearing and we vacate Part II of our opinion.
See id. at 17-20. As the United States now acknowledges in
its response to the Petition (‘‘Response’’), ‘‘the officer’s con-
duct in this case was a search within the meaning of the
Fourth Amendment.’’ Response at 2. We hold that the
district court erred in denying Maple’s motion to suppress a
silver pistol seized by a Metropolitan Police Department
(‘‘MPD’’) officer from the closed compartment in the console
of Maple’s car. The warrantless search of the car console
was without Maple’s consent, lacked probable cause, and was
not in accordance with the MPD’s established procedures for
securing a defendant’s property. Accordingly, because Maple
did not preserve his Second Amendment claim, see Maple,
334 F.3d at 21, and because the drugs were in plain view on
top of the console, see id. at 17, we reverse the judgment of
conviction and remand the case for the retrial that Maple
seeks, Appellant’s Br. at 22, on the drug charge.
The Fourth Amendment protects ‘‘[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable 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, 112-13 (1986) (quoting
Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opin-
ion)), ‘‘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 ‘‘intru-
sion 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 privacy.’ ’’ Id. at 112 (citing Katz v. United
3
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 the closed console of his car, which
had not been impounded by the police, the warrantless search
of that compartment was impermissible under the Fourth
Amendment.
It is long settled that ‘‘ ‘[a] search occurs when an expecta-
tion of privacy that society is prepared to consider reasonable
is infringed.’ ’’ 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)). In Kyllo, after explaining that the
scope of a search is defined by privacy expectations, the
Supreme Court held that information obtained through ther-
mal imaging of a private home ‘‘was the product of a search,’’
id. at 35, rejecting the view that information was not obtained
regarding the interior of the home, id. at 35 n.2. Kyllo thus
reenforces the importance of privacy expectations in Fourth
Amendment analysis even when a search occurs other than
by sight. As such, it hardly exempts, as here, an ‘‘inadver-
tent’’ discovery in the course of caretaking from the Fourth
Amendment’s protections. The United States concedes that
any deliberate governmental intrusion into a closed space —
opening a door or a closed compartment — is a search
regardless of the reasons for the intrusion. Cf. Horton v.
California, 496 U.S. 128, 141 (1990).
A closed, opaque compartment by its nature secures its
contents from public view — as the officer indicated was his
intention with respect to Maple’s cell phone — and when
Maple was arrested, the console in his car was closed. The
government, which has the burden of proving the lawfulness
of the search, Mincey v. Arizona, 437 U.S. 385, 390-91 (1978),
offered no evidence that Maple did not have a privacy interest
4
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 118–19;
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).
Although the United States relied during oral argument on
Harris v. United States, 390 U.S. 234 (1968) (per curiam), to
argue that no search occurred, it now acknowledges that
Harris’ ‘‘limited holding [does not] support[ ] the conclusion
that there was no search at all in this case,’’ Response at 10.
As it concedes, id. at 9-10, Harris involved an inventory
search of an impounded car that did not present the question
of the legality of the search pursuant to police regulations,
Harris, 390 U.S. at 235-36. Moreover, the officer in Harris
discovered the robbery victim’s car registration while taking
measures ‘‘to protect the [defendant’s] car while it was in
police custody,’’ in accordance with MPD regulations. Id.
Maple’s car, by contrast, had not been impounded, and the
officer was not acting pursuant to standardized departmental
procedures in opening the console. Further, the registration
card in Harris ‘‘was plainly visible,’’ 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 compart-
ment without Maple’s authorization. Thus, acting pursuant
to established police procedures, as the police did in Harris,
id., goes to the reasonableness of the officer’s conduct not to
whether or not there was a search.
‘‘In determining whether a TTT search is reasonable under
the Fourth Amendment, courts look to objective evidence, 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, 812-13 (1996)). In other words, ‘‘the issue is not’’
5
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 in Class that the search of
the inside of a car (to remove papers on the dashboard
obscuring the vehicle identification number that would other-
wise be in plain view) was ‘‘sufficiently unintrusive to be
constitutionally permissible,’’ Class, 475 U.S. at 119, the Su-
preme Court found significant that the officer ‘‘did not reach
into any compartments or open any containers,’’ id. at 118.
That finding contrasts sharply with the officer’s opening of
the closed console in Maple’s car, which upset Maple’s reason-
able expectation of privacy, regardless of the officer’s pur-
pose.
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
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
6
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 MPD procedures 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 compart-
ments 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 such evidence.
Absent personal property found inside a car that might
pose a danger to the 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 447-48, 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, see
id. at 445-46. Doing so ensures that any police intrusion into
private property is limited in scope to the extent necessary to
carry out the caretaking function, South Dakota v. Opper-
man, 428 U.S. 364, 374-75 (1976), thereby preventing war-
rantless searches, such as inventories, id. at 367-76, from
becoming ‘‘a ruse for a general rummaging in order to
discover incriminating evidence,’’ Florida v. Wells, 495 U.S. 1,
4 (1990).
Whether or not the officer’s search of the console inside of
Maple’s unimpounded car in order to secure a cell phone
violated MPD’s policy and procedures governing Automobile
Searches and Inventories, it clearly was not expressly author-
ized. See generally MPD Gen. Order 602(I) (May 26, 1972),
reprinted in Joint Appendix at 37-52. MPD policy limits
warrantless searches to particular circumstances. If, for
7
example, 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 adminis-
trative process by which items of property are listed and
secured,’’ id. at 602(I)(B) (emphasis added). Further, 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); or (2) a
police officer has probable cause to believe that the car
contains the fruits, instrumentalities, contraband, or evidence
of the crime for which the defendant was arrested — excep-
tions not relevant in this case. Id. at 602(I)(A)(1)(a)(1) &
(b)(1). Neither of the above circumstances 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).
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, the officer decided to open a closed
compartment in Maple’s car. 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); Opper-
man, 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
8
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). Otherwise, there is no limit to the
officer’s discretion or to the scope of the intrusion into private
property under the guise of securing the defendant’s belong-
ings. See Wells, 495 U.S. at 4; Opperman, 428 U.S. at 375;
Marshall, 986 F.2d at 1174. Here, MPD General Order 602
established, and thus restricted, the manner in which a police
officer can protect a defendant’s property. Moreover, the
record fails to show inadvertent conduct under the plain view
doctrine; the officer spotted the gun only after he opened the
closed console. Even assuming that 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 point is that
whatever his good intentions, the officer failed to follow
established police policy and procedures for securing a defen-
dant’s property.
In sum, ‘‘there is a well settled definition of ‘search’ in the
Fourth Amendment context, and that definition does not
require that the police be ‘looking for something,’ but rather
focuses on whether the actions of ‘the government violate[ ] a
subjective expectation of privacy that society recognizes as
reasonable’.’’ Response at 4-5 (citations omitted). ‘‘[I]t also
is well settled that police conduct can amount to a search
even if the conduct was not motivated by a desire to look for
evidence of crime.’’ Id. at 5. Otherwise, contrary to Su-
preme Court precedent, ‘‘warrantless and suspicionless intru-
sions into closed containers, automobiles, and even homes are
not searches so long as the police do not intend to look for
something inside.’’ Id. at 7; see id. at 8. Accordingly,
because the district court erred in denying Maple’s motion to
suppress the evidence found inside the closed console in his
car, we grant rehearing and we reverse the judgment of
conviction. Because Maple did not preserve his Second
Amendment claim, and because the drugs were in plain view
9
on top of the console, see Harris, 390 U.S. at 236, we remand
the case for the retrial on the drug charge.