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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2006 Decided June 23, 2006
No. 05-3047
UNITED STATES OF AMERICA,
APPELLEE
v.
RONALD POWELL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00164-01)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Suzanne C. Nyland, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Roy W. McLeese, III and David
B. Goodhand, Assistant U.S. Attorneys.
2
Before: GINSBURG, Chief Judge, and ROGERS, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
Dissenting opinion filed by Chief Judge GINSBURG.
ROGERS, Circuit Judge: The question before the court is
whether the exception to the warrant requirement under the
Fourth Amendment for a search of the passenger compartment
of a car incident to a lawful custodial arrest under New York v.
Belton, 453 U.S. 454, 460 (1981), applies to a search incident to
the possibility of an imminent arrest. We hold that it does not.
To come within the exception, the warrantless search cannot
precede a custodial arrest; otherwise, neither of the Supreme
Court’s two historical rationales for the exception would apply.
See Knowles v. Iowa, 525 U.S. 113, 116-117 (1998).
Consequently, although the police had probable cause to arrest
Ronald Powell for a misdemeanor committed in their presence,
because they instead searched a nearby car before informing
Powell that he was under arrest or restraining his movement in
a manner that would lead a reasonable person in his position to
believe he was under arrest, the search was unlawful.
Accordingly, because the police lacked probable cause to search
the car, we reverse the judgment of conviction based on the
fruits of the unlawful search.
I.
On March 2, 2004, at approximately 9:00 p.m.,
Metropolitan Police Department Officer Bray Jones was driving
an unmarked police car with two other officers in Northeast,
Washington, D.C.. The officers were in plain clothes, wearing
tactical vests bearing the word “police.” Officer Jones testified
that when they reached the 1700 block of West Virginia Avenue,
3
they saw two men, one of whom was Ronald Powell, urinating
a few feet from the rear of a parked car. The men were standing
in a dark, deserted, industrial non-residential area, which was
illuminated only by street lamps. Two officers approached the
men from behind while they were still urinating. Upon turning
toward the officers, one of the men said “[W]e were just going
to a friend’s house . . . . [W]e had to go, man. We had to go,
man.”
While this was occurring, Officer Jones approached the
driver’s side of the car upon noticing a third man sitting in the
front passenger seat. All of the car doors were closed; only the
driver’s window was open. Officer Jones leaned inside the
driver’s window, his torso entering the car, and shined a
flashlight into the car. He saw two clear cups containing
yellowish liquid in the cupholder of an armrest in the front seat
and another in an armrest in the back seat. While leaning inside
of the driver’s side of the car, Officer Jones smelled alcohol.
Officer Jones moved to the passenger’s side of the car and had
the passenger get out of the car. He then searched the interior of
the car. On the back seat, he found a nearly empty bottle of
cognac and a backpack. Upon opening the backpack, Officer
Jones found an Intratech TEC-9 machine gun loaded with 23
rounds of ammunition in the magazine and one round in the
chamber. He also found inside the backpack a credit card
receipt bearing Powell’s name and the certificate of title for the
vehicle.
Officer Jones then told the other officers to “hook him up,”
signaling that the three men were to be handcuffed, which they
were. Officer Jones called one of the officers to his location and
showed him the backpack, which Jones had put on the trunk so
that only the officer could see it. At that point, the three men
started speaking spontaneously, although Officer Jones could
not recall what they said. The men were arrested, according to
4
Officer Jones, for the firearms violation as well as for urinating
in public and possession of an open container of alcohol. The
men were read their Miranda rights, and in response to
questions by one of the officers, Powell said the car and gun
were his and that he had the gun for protection. The men were
taken to the Fifth District police station where they again were
given Miranda warnings; Powell refused to answer any
questions.
Powell was indicted for unlawful possession of a firearm
and ammunition by a felon, in violation of 18 U.S.C. §
922(g)(1). He filed a pretrial motion to suppress physical and
oral evidence on four grounds: (1) the police lacked probable
cause to believe a misdemeanor was being committed in their
presence because it had been completed when the officers
arrived on the scene; (2) he was not in the car at the time of any
arrest and that any search of the car was not incident to an arrest;
(3) Officer Jones’s entry into the car constituted a search at its
inception and was unsupported by probable cause, and (4) any
statements he made were the result of interrogation following an
illegal arrest and there were no valid Miranda warnings or
waiver of his Miranda rights. The district court denied the
motion. A jury found Powell guilty. The district court
sentenced Powell to 46 months’ imprisonment, followed by
three years supervised release. See 18 U.S.C. § 924(a)(2).
II.
Powell appeals the judgment of conviction, specifically the
denial of his motion to suppress evidence found in the car and
his statement in response to police questioning after he was in
handcuffs. We review the district court’s determinations of
questions of law de novo and its findings of historical fact for
clear error. See Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Holmes, 385 F.3d 786, 789 (D.C. Cir.
5
2004).
On appeal, the Government makes two concessions that
narrow our inquiry. First, the Government acknowledges that
the record shows that Officer Jones both saw and smelled the
yellowish liquid in the cups only after leaning inside the car
through the open window on the driver’s side of the car. This is
clear from Officer Jones’ testimony. Thus, the Government
correctly concedes that the district court clearly erred in finding
that Officer Jones first saw the yellowish liquid in the cups
while he was standing outside the vehicle. Having entered the
car without probable cause and conducted, on the basis of what
he had seen while inside the car, a complete search of the car
interior that revealed the backpack with the gun, Officer Jones
could not use the fruits of this unlawful search to justify the
search or render it permissible under the Fourth Amendment.
See, e.g., New York v. Class, 475 U.S. 106, 114-15 (1986);
United States v. Maple, 348 F.3d 260, 261 (D.C. Cir. 2003).
Second, the Government concedes that the search cannot be
justified under the Fourth Amendment as incident to the arrest
of the car passenger for possessing an open container of alcohol,
see D.C. Code § 22-1001(d) (2001), because the police only had
probable cause to believe this violation had occurred as a result
of the unlawful search. Again, this is clear from Officer Jones’s
testimony. Thus, the only question before the court is whether
the Government can justify the otherwise unlawful search of the
car because the search was “incident to” Powell’s post-search
arrest for a misdemeanor and thus use the fruits of the unlawful
search to justify Powell’s arrest for a felony offense. Although
the district court did not reach this question, the Government
made the argument in the district court and may seek affirmance
of the judgment on an alternate ground. See United States v.
Hylton, 294 F.3d 130, 136 (D.C. Cir. 2002) (citing United States
v. Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983)).
6
The Supreme Court has long recognized an exception to the
general warrant requirement under the Fourth Amendment for
searches incident to prior lawful custodial arrests. In United
States v. Robinson, 414 U.S. 218 (1973), the Court
acknowledged this court’s “comprehensive treatment of the
authority of a police officer to search the person of one who has
been validly arrested and taken into custody,” id. at 223-224
(emphasis added), in concluding that the police officer’s body
search (and subsequent container search) of the defendant after
he was arrested for driving after revocation of his operator’s
permit did not “offend the limits imposed by the Fourth
Amendment, id. at 224. The Court then observed that
[i]t is well settled that a search incident to a lawful
arrest is a traditional exception to the warrant
requirement * * * [that] has historically been
formulated into two distinct propositions. The first is
that a search may be made of the person of the arrestee
by virtue of the lawful arrest. The second is that a
search may be made of the area within the control of
the arrestee.
Id. The Court held that “in the case of a lawful custodial arrest
a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’
search under that Amendment.” Id. at 235.
In Belton, 453 U.S. at 460, the Supreme Court extended this
exception, holding that “when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile,” id. at 460 (emphasis added),
including the contents of any containers found therein, id. The
Court observed that it has identified two historical rationales for
the exception: (1) the need “to remove any weapons that [the
7
arrestee] might seek to use in order to resist arrest or effect his
escape,” and (2) “the need to prevent the concealment or
destruction of evidence [by the arrestee].” Id. (quoting Chimel
v. California, 395 U.S. 752, 763 (1969)); see Robinson, 414 U.S.
at 234. In Belton, the defendant, who had been a passenger in a
car stopped for speeding, “was the subject of a lawful custodial
arrest on a charge of possessing marihuana,” id. at 462, and
“[t]he search of [his] jacket [found in the back seat of the car]
followed immediately upon that arrest,” id. The Court recalled
that the exception to the warrant requirement is based on the
recognition “that ‘the exigencies of the situation’ may
sometimes make an exemption from the warrant requirement
‘imperative.’” Id. at 457 (quoting McDonald v. United States,
335 U.S. 451, 456 (1948)). It recounted that “a lawful custodial
arrest creates a situation which justifies the contemporaneous
search without a warrant of the person arrested and of the
immediately surrounding area,” id. (citing Chimel, 395 U.S. at
763).
Powell contends that neither of the two historical rationales
that the Supreme Court has provided for the search-incident-to-
arrest exception apply in his case. Although on the facts found
by the district court the police had probable cause to arrest
Powell for disorderly conduct, unlike the police in Belton, the
police here did not formally arrest or otherwise detain Powell
before searching the car. Powell points out, based on the record
before the district court, that the officers had not spoken to him
or to the second man who was urinating when Officer Jones
began searching the car. Powell therefore maintains that he and
the second man had no reason to believe they were under arrest
and thus had no reason to resist arrest or to destroy evidence.
The Government urges the court to hold that the existence
of probable cause to arrest is alone sufficient for the exception
under Belton to apply. Relying on United States v. Riley, 351
8
F.3d 1265, 1269 (D.C. Cir. 2003), the Government would have
the court extend the Belton exception to cases where the police
could have initiated a lawful arrest but did not. Extending the
exception in that manner would be entirely misplaced.
First, Supreme Court precedent undercuts the notion that
authority to arrest, when no arrest occurs, empowers a police
officer to conduct a warrantless search of the passenger
compartment of a car. Belton and its progeny have used the
phrase “incident to” to refer to a search that follows a lawful
custodial arrest, not vice versa. See Belton, 453 U.S. at 460;
Robinson, 414 U.S. at 223-24. In Knowles, 525 U.S. at 118, the
Court rejected the argument that a police officer who issued a
traffic citation had grounds to search the car merely because the
officer could have arrested the driver for the offense for which
the officer issued a citation. The choice made by the police
officer – to arrest or to issue a citation – determined what action
the officer could lawfully take thereafter. The Court’s holding
that the warrantless search was unlawful was unaffected by the
fact that, under the applicable statute, the police officer had
probable cause to arrest the driver. Id. at 115.
Second, the Government’s position would sever the
exception from its two historical rationales. In Knowles, the
Court reaffirmed that the authority to search incident to a prior
arrest is an exception to the Fourth Amendment warrant
requirement and that its scope is specifically circumscribed by
two concerns: officer safety and preservation of evidence. Id.
The Court explained that until an encounter ripens into an arrest,
neither rationale is triggered because “[1] a person might well be
less hostile to the police and [2] less likely to take conspicuous
immediate steps to destroy incriminating evidence.” Id. at 117
(quoting Cupp v. Murphy, 412 U.S. 291, 296 (1973)). Because
there is no reason to fear that the suspect who is issued a
citation, in contrast to an “arrestee,” will lash out at the police
9
officer or destroy evidence, the exception does not apply. In
Robinson, the Court explained that it is the act of arrest that
places the officer in physical danger because of the “extended
exposure which follows the taking of a suspect into custody and
transporting him to the police station,” 414 U.S. at 234-35,
recognizing that “[t]he danger to the police officer flows from
the fact of the arrest, and its attendant proximity, stress, and
uncertainty, and not from the grounds for arrest,” id. at 235 n.5.
Absent a prior custodial arrest, the danger that the Supreme
Court has deemed to necessitate an exception to the warrant
requirement is, as a matter of law, non-existent. The Court
reaffirmed this reasoning in Knowles, 525 U.S. at 117-18.
Reversing a conviction based on the fruits of a search of a car
incident to a citation and not an arrest, the Court reasoned that
“the threat to officer safety from issuing a traffic citation . . . is
a good deal less than in the case of a custodial arrest.” Id. at 117.
Further, “[o]nce [the defendant] was stopped for speeding and
issued a citation, all the evidence necessary to prosecute that
offense had been obtained.” Id. at 118.
Third, no precedent supports the Government’s position that
a warrantless search can be justified by a hypothetical arrest that
may or may not have occurred had the search turned up no
evidence of criminal wrongdoing. Although the defendant in
Rawlings v. Kentucky, 448 U.S. 98 (1980), which was decided
prior to Belton, was not placed under “formal arrest” until
“quickly” after he was searched, id. at 111, “[t]he Court’s every
word and sentence cannot be read in a vacuum; its
pronouncements must be read in light of the holding of the case
and to the degree possible, so as to be consistent with the
Court’s apparent intentions and with other language in the same
opinion.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C
Cir. 1998) (en banc). The Court in Rawlings had to decide
whether drug evidence was the fruit of illegal detention and
illegal searches. 448 U.S. at 100. The police had come to an
10
apartment to execute an arrest warrant and although they did not
find the man named in the warrant, others in the apartment,
including Rawlings, were detained when the police smelled
marihuana smoke and saw marihuana seeds on the mantle in a
bedroom. See id. Rawlings was detained by the police for forty-
five minutes while a search warrant for the apartment was
obtained and told he could leave only if he consented to a body
search. Id. When the police returned with a search warrant,
Rawlings was read the Miranda warnings and told to claim what
was his from the contents of a purse belonging to another
detainee. When Rawlings claimed the controlled substances, the
police searched his person, finding a large amount of cash and
a knife, and “placed Rawlings under formal arrest.” Id. at 101.
Thus, in Rawlings, there was a custodial arrest once the
police made clear to Rawlings that he was being detained and
could not leave the apartment without submitting to a body
search. The fact that the police gave him Miranda warnings
once they returned to the apartment with a search warrant further
indicated that the police had placed him under arrest prior to the
search. The Court made no reference to Robinson. To the extent
the Court relied on the fact that the police had probable cause to
arrest Rawlings before the search, see id. at 111, its rationale
does not survive Belton and its progeny. See Knowles, 525 U.S.
at 118.
In Riley, the formal announcement of arrest followed a body
search after a custodial arrest. Relying on Rawlings, this court
declared that “[i]t [wa]s of no import that the search [of the
suspect] came before the actual arrest.” 351 F.3d at 1269 (citing
Rawlings, 448 U.S. at 111). Again, the court’s pronouncement
cannot be read in a vacuum. See Aka, 156 F.3d at 1291. The
police had been alerted by a tip that Riley was carrying a large
amount of crack cocaine in his sock. Id. at 1266. Upon locating
the suspect and confirming his name, three officers surrounded
11
him, so that he could not move without touching one of them,
and ordered him to dismount from a moped. Id. at 1267. An
officer then leaned down, saw a bulge in Riley’s sock, and
recovered drugs from the sock. Id. The court had to decide
whether there was probable cause to support Riley’s arrest at the
time he was surrounded and ordered to dismount, and, if so,
whether the search of his sock, before his formal arrest, was
incident to that arrest. Id. The Government “expressly
disavowed” any view that the police action in surrounding Riley
was simply a seizure under Terry v. Ohio, 392 U.S. 1 (1968).
See Riley, 351 F.3d at 1267 Based on the tip and police
confirmation of details such as the suspect’s appearance and
name, the court held there was probable cause for the arrest
when the police surrounded Riley, id. at 1267-68, and under the
circumstances, the fact that “the actual arrest” followed the
search of Riley’s person was immaterial, id. at 1269. The court
did not address Belton or its progeny. To the extent Riley might
be read as authority for upholding searches based on the mere
existence of probable cause when there is a post-search arrest,
such a reading cannot be reconciled with the court’s recognition
that a lawful arrest had occurred in Riley prior to the search,
much less with Belton and its progeny regarding what
exigencies can justify the search-incident-to-arrest exception to
the warrant requirement.
Fourth, assuming the sequencing analysis in Rawlings and
Riley for a search of the person would apply to the search of a
car, the Government’s reliance on Riley is misplaced because it
ignores, as does our dissenting colleague, see infra at 4, the
custodial nature of the police conduct that preceded the body
search. We agree with the Seventh Circuit that for purposes of
the search-incident-to-arrest exception, a “suspect is under
custodial arrest when a reasonable person in the suspect’s
position would have understood that situation to constitute a
restraint on freedom of movement of the degree which the law
12
associates with formal arrest.” Ochana v. Flores, 347 F.3d 266,
270 (7th Cir. 2003). Certainly, handcuffing a suspect prior to a
search, see dissent at 4-5, would qualify as a custodial arrest.
No such arrest occurred here. Prior to the search of the car, the
police neither told Powell that he was under arrest for urinating
in public in their presence, nor restrained his movement in a
manner that would indicate to a reasonable person in his position
that he was not free to leave because he was being detained by
the police. At the time of the search, the police were still
investigating the situation as they had no prior information about
any of the men or the car when they arrived at the scene.
Although Officer Jones had removed the passenger from the car,
as might be justified by a concern for his safety, see Knowles,
525 U.S. at 117-18, the first inkling of an arrest came only with
Officer Jones’ command after the search, which turned up
dangerous contraband, to “hook him up.” Even under the dictum
in Riley, 352 F.3d at 1267, regarding a Terry seizure, none had
occurred.
In short, neither the Supreme Court nor this court in Riley
has strayed from the requirement underlying the exception to the
warrant requirement that the search be incident to a prior lawful
custodial arrest. To the extent this court may have attempted to
fashion a different rule, see United States v. Abdul-Saaboor, 85
F.3d 664, 668 (D.C. Cir. 1996), cited by our dissenting
colleague, infra at 1, and the dissent attempts to do so today, see
id. at 4-5 & n.*, and our sister circuits have concluded that the
existence of probable cause to arrest is a sufficient substitute for
a custodial arrest prior to a search under the Belton exception,
see United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004);
United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999), the
Supreme Court rejected that sequencing analysis in Knowles.
Fifth, adopting the extension of Belton’s bright-line rule that
the Government seeks – whereby the police could lawfully
13
search incident to the possibility of an imminent arrest based on
probable cause – would eviscerate the limits placed by the
Supreme Court on a carefully circumscribed exception to a
constitutional right. The police undoubtedly witness numerous
occurrences of conduct that they conclude is so trivial that an
arrest is unwarranted even though such conduct generates
probable cause to arrest. Under the Government’s theory, which
is embraced by our dissenting colleague (with a qualification
regarding a later arrest), see infra at 5 n.*, the police would have
a blank check to search cars whenever an offense too trivial in
their view to justify making a custodial arrest was committed by
someone who conceivably could have a connection to a nearby
car. But the possibility of an imminent arrest does not present
the circumstances that, under Belton and its progeny, permit a
warrantless search prior to a lawful custodial arrest. The
Supreme Court emphasized, in reversing the conviction in
Knowles, that the search-incident-to-arrest exception it has
recognized to address exigent circumstances relating to police
safety and securing evidence from interference by the arrestee
is tied to two rationales, which are directly linked to the prior
initiation of a custodial arrest. If the rationale for the exception
to the warrant requirement of the Fourth Amendment is absent,
because there is no custodial arrest prior to the search, then the
exception is inapplicable.
The objective facts known to the police when they arrived
in the 1700 block of West Virginia Avenue, N.E., provided
probable cause to arrest two men for urinating in public in the
presence of the police, D.C. Code § 22-1321; Scott v. United States,
878 A.2d 486, 487-88 (D.C. 2005). The police chose not to place
Powell and the second man under arrest for disorderly conduct
and instead searched the car. As witnesses to the public
urination, the police had all the evidence necessary to prosecute
that offense, but because they did not place Powell under arrest,
under Belton and its progeny the police could not lawfully
14
search the passenger compartment of the car without a warrant,
even assuming they had reason to believe that Powell was a
recent occupant of the car. Cf. Knowles, 525 U.S. at 118.
Concern for the officers’ safety was addressed when Officer
Jones removed the passenger from the car. See id. at 117-18.
The police had no information prior to conducting the search
that the car contained dangerous contraband. See generally
Maple, 348 F.3d at 263-64 (citing Cady v. Dombrowski, 413
U.S. 433, 441 (1973)).
We need not address whether the police had sufficient
reason to believe that Powell had been a recent occupant of the
car at the time Officer Jones searched it. In Thornton v. United
States, 541 U.S. 615, 620-21 (2005), the Supreme Court
recognized, in different circumstances, that an arrestee’s recent
occupancy of a car was sufficient to justify a search of the
passenger compartment after a custodial arrest. The issue is not
before us because whatever Powell’s apparent connection to the
car, his commission of a misdemeanor offense, in the absence of
a custodial arrest, was insufficient to justify the search of the car
under Belton. Absent police conduct that would have indicated
to a reasonable man in Powell’s position that he was under
arrest, neither of the historical rationales provided by the
Supreme Court for the search-incident-to-arrest exception is
triggered. See id. at 621.
Because the police lacked probable cause to search the car,
we hold that the district court erred in denying Powell’s motion
to suppress evidence. Accordingly, we reverse the judgment of
conviction based on the fruits obtained as a result of the
unlawful search.
GINSBURG, Chief Judge, dissenting: The rule in New York
v. Belton, 453 U.S. 454, 460 (1981), authorizes the police,
without a warrant, to search the passenger compartment of an
automobile “incident” to a lawful custodial arrest. The Court
today redefines this term; now, in order to be deemed “incident,”
the search must follow an arrest.
Until today our understanding of the rule was that “a search
is conducted incident to an arrest so long as it is an ‘integral part
of a lawful custodial arrest process.’ ... The relevant distinction
turns not upon the moment of the arrest versus the moment of
the search but upon whether the arrest and search are so
separated in time or by intervening events that the latter cannot
fairly be said to have been incident to the former.” United
States v. Abdul-Saboor, 85 F.3d 664, 668 (D.C. Cir. 1996)
(quoting United States v. Brown, 671 F.2d 585, 587 (D.C. Cir.
1982)).
More important, in Rawlings v. Kentucky, 448 U.S. 98, 111
(1980), the Supreme Court specifically said it is not “particularly
important that the search preceded the arrest rather than vice
versa” where “the formal arrest followed quickly on the heels of
the challenged search” and “the police clearly had probable
cause to place [the suspect] under arrest” before the search.
That is exactly what happened here. See also United States v.
Riley, 351 F.3d 1265, 1269 (D.C. Cir. 2003) (where “the police
had probable cause to arrest” before the search it was “of no
import that the search came before the actual arrest”); United
States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (“So long as
an arrest that follows a search is supported by probable cause
independent of the fruits of the search, the precise timing of the
search is not critical”); United States v. Lugo, 170 F.3d 996,
1003 (10th Cir. 1999) (“A legitimate ‘search incident to arrest’
need not take place after the arrest”) (citation omitted). Of the
three other circuits to address the issue only one has held a
Belton search must follow a custodial arrest and that case failed
to mention Rawlings. See Ochana v. Flores, 347 F.3d 266, 270
2
(7th Cir. 2003).
Applying the teaching of the Supreme Court in Rawlings to
the facts of this case, I believe we must uphold Officer Jones’
search of the car. As the Court acknowledges, Ct. Op. at 13, the
officers had probable cause to arrest Powell and his companion
before the search and without regard to the fruits of that search.
See D.C. Code §§ 22-3312.01, 22-3312.04(a); Scott v. United
States, 878 A.2d 486, 488 (D.C. 2005). Indeed, Officer Jones
testified that the officers “detain[ed]” the men because “they
were going to be placed under arrest” for “[u]rinating in public.”
Immediately following the search, Powell and his companion
were indeed handcuffed and formally placed under arrest for
public urination as well as for the firearms violation brought to
light by the search. As in Rawlings, “the formal arrest followed
quickly on the heels of the challenged search.” 448 U.S. at 111.
Therefore, because “the police had probable cause to arrest
[before the search], the search was valid as one incident to
arrest.” Riley, 351 F.3d at 1269.
The Court gives a novel reading to Rawlings and Riley and
I believe errs in concluding they do not control this case because
of “the custodial nature of the police conduct that preceded” the
search in those cases. Ct. Op. at 11. Noting that a custodial
arrest takes place “when a reasonable person in the suspect’s
position would have understood that situation to constitute a
restraint on freedom of movement of the degree which the law
associates with formal arrest,” id. at 11-12 (quoting Ochana, 347
F.3d at 270), the Court apparently reads Riley to mean a search
must always follow a custodial arrest and may precede only “the
formal announcement of arrest.” Id. at 10. In cases involving
a search incident to arrest neither we nor the Supreme Court
have previously parsed the distinction between “custodial” and
“formal” arrests, but the Supreme Court did at least advert to
such a distinction in Rawlings, 448 U.S. at 111 (a search may
3
lawfully precede an arrest so long as a “formal arrest follow[s]
quickly on [its] heels”), and the taxonomy is, of course, familiar
from the Miranda line of cases, see, e.g., Berkemer v. McCarty,
468 U.S. 420, 440 (1984) (“It is settled that the safeguards
prescribed by Miranda become applicable as soon as a suspect’s
freedom of action is curtailed to a degree associated with formal
arrest. If a motorist who has been detained pursuant to a traffic
stop thereafter is subjected to treatment that renders him ‘in
custody’ for practical purposes, he will be entitled to the full
panoply of protections prescribed by Miranda.” (internal
quotation marks and citations omitted)).
It is possible, but ultimately of no moment, that the suspects
in Riley and Rawlings were under “custodial” but not “formal”
arrest when they were searched. In Riley, police officers ordered
Riley to dismount his moped and searched his sock only after
three of the officers had surrounded him in such a way that he
“couldn’t have moved without actually making contact with”
one of them. Riley, 351 F.3d at 1267. The court noted the
seizure (of Riley’s person) that preceded the search might have
been deemed an investigative stop pursuant to Terry v. Ohio,
392 U.S. 1, 20 (1968), but for reasons that “elude[d]” the court,
the Government conceded the initial seizure was not a Terry
stop. 351 F.3d at 1267. The court therefore treated the
encounter as an “arrest” as of the moment the officers
“converged on the moped.” Id. In Rawlings, the suspect was
“detained” at the residence he was visiting and not permitted,
unless he would consent to a body search, to leave for the 45
minutes it took the police to obtain a search warrant. 448 U.S.
at 100. After the officers returned with the warrant, Rawlings
admitted ownership of drugs found in another guest’s purse. Id.
at 100-01. Having established probable cause to arrest
Rawlings, the officers first searched him and then placed him
under arrest. Id. at 101. The Supreme Court expressly reserved
the question whether the temporary detention of the occupants
4
of the house was a lawful seizure that was “less intrusive than a
traditional arrest,” id. at 110 & n.5, i.e. something less than a
custodial arrest, but assumed for the sake of argument it was an
“illegal detention,” id. at 106.
Whether the suspects in Riley and Rawlings were under
custodial arrest when they were searched, however, is of no
moment. Neither the Supreme Court in Rawlings nor this court
in Riley suggested its upholding the search turned upon the
suspect being in custody before the search. Instead, the
Supreme Court in Rawlings said only that the “formal arrest”
must follow “quickly on the heels of the challenged search,” id.
at 111, -- as happened here -- and this court in Riley held it was
“of no import that the search came before the actual arrest” if the
“actual arrest” followed quickly thereafter, 351 F.3d at 1269, --
again, as happened here.
The Court nonetheless seems to find implicit in these
decisions the requirement that the search follow the custodial
arrest because to hold otherwise would “sever” the search-
incident-to-arrest exception to the warrant requirement “from its
two historical rationales” -- protection of the officer’s safety and
preservation of evidence -- which are not “triggered” until “an
encounter ripens into an arrest,” that is, the suspect is taken into
custody. Ct. Op. at 8. But that is not correct. If anything, each
rationale is stronger before the police take a suspect into custody
than afterwards, and certainly more so than after the suspect has
been taken into custody, handcuffed, and locked away in the
back seat of a squad car. See, e.g., Thornton v. United States,
541 U.S. 615, 618 (2004) (upholding search under Belton where
officer “handcuffed petitioner, informed him that he was under
arrest, and placed him in the back seat of the patrol car” before
searching the vehicle); see also id. at 627-28 (Scalia, J.,
concurring) (noting cases upholding search after suspect is
handcuffed and secured in back of squad car “are legion” and
5
mordantly criticizing application of Belton to suspects who no
longer pose a danger to police). By searching the suspect before
they arrest him, the officers can secure any weapon he might
otherwise have used to resist arrest or any evidence he might
otherwise have destroyed if he got the opportunity.
Nor, contrary to the opinion for the Court, is the search in
this case inconsistent with Knowles v. Iowa, 525 U.S. 113
(1998). Had the officers failed to arrest Powell and merely
issued him a citation, then under Knowles the search would be
invalid. 525 U.S. at 117 (“The threat to officer safety from
issuing a traffic citation ... is a good deal less than in the case of
a custodial arrest”). It is neither the Government’s position nor
mine that “probable cause to arrest is alone sufficient for the
exception under Belton to apply.” See Ct. Op. at 7, 12. It is the
“fact of the arrest” that makes all the difference. Id. (quoting
United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (“The
danger to the police officer flows from the fact of the arrest, and
its attendant proximity, stress, and uncertainty”)); see also
Washington v. Chrisman, 455 U.S. 1, 7 (1982) (“Every arrest
must be presumed to present a risk of danger to the arresting
officer”). Therefore, a search may be “incident” to an arrest
regardless of the order in which the police proceed.*
Because I believe the search in this case was “incident to
arrest” as the Supreme Court has explicated that phrase, I would
go on to the question whether the officers had reason to believe
*
This is not, however, as the Court suggests, a “blank check”
for the police to search the car whenever a driver has committed an
arrestable offense. Ct. Op. at 13. The police must still complete the
arrest, thereby subjecting themselves to a time-consuming procedure
and to “the extended exposure” to danger inherent in “the taking of a
suspect into custody and transporting him to the police station.”
Knowles, 525 U.S. at 117 (quoting Robinson, 414 U.S. at 234-35).
6
Powell was a “recent occupant” of the vehicle. See Thornton,
541 U.S. at 622 (“Belton allows police to search the passenger
compartment of a vehicle incident to a lawful custodial arrest of
both ‘occupants’ and ‘recent occupants’” (quoting Belton, 453
U.S. at 460)). I believe they did. The only reasonable
conclusion, upon finding two men urinating at night in an
industrial area a “few feet” from a car, the only occupant of
which was sitting in a passenger seat, is that the two men were
recent occupants of the car. Accordingly, I would uphold the
conviction.
I respectfully dissent.