United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2007 Decided April 17, 2007
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 Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese III, Assistant U.S. Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, BROWN,
GRIFFITH, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
Dissenting opinion filed by Circuit Judge ROGERS.
GINSBURG, Chief Judge: Ronald T. Powell challenged the
district court’s order denying his motion to suppress evidence of
the gun and ammunition found in the back seat of his car. A
jury convicted Powell of being a felon in possession of the gun
and ammunition, in violation of 18 U.S.C. § 922(g)(1). Powell
appealed the district court’s order and a divided panel of this
court reversed his conviction as having been based upon the
fruits of an unlawful search. The panel majority reasoned that
even when the police have probable cause to arrest a suspect,
they may not conduct a warrantless search incident to arrest
before taking the suspect into custody. See United States v.
Powell, 451 F.3d 862, 863 (D.C. Cir. 2006).
Upon the Government’s motion, the full court vacated that
decision and granted rehearing en banc. Concluding this case is
controlled by Rawlings v. Kentucky, 448 U.S. 98 (1980), we now
affirm the order of the district court and hold the search of
Powell’s car was conducted incident to Powell’s arrest.
Accordingly, unlike the panel, we go on to consider whether the
officers had reason to believe Powell was a “recent occupant” of
the vehicle and conclude they did, wherefore the search was
lawful.
I. Background
One evening at approximately 9:00 p.m. three Metropolitan
Police officers were riding in an unmarked police car in the
vicinity of 1700 West Virginia Avenue, NE, an industrial area,
when they saw Powell and another man standing and urinating
to the rear of and a “few feet” from a parked car. The officers
“pulled [their] vehicle toward” the men and came to a stop.
Officers Masalona and Trudy got out and walked toward the two
men while Officer Jones, who had seen a third person sitting in
3
the front passenger seat, approached the driver’s side of the car.
As the officers approached, one of the men outside the car said,
“[W]e were just going to a friend’s house and we had to go,
man. We had to go.”
Officers Masalona and Trudy detained the two men outside
the car because “they were going to be placed under arrest” for
urinating in public. Meanwhile, Officer Jones leant through the
open window on the driver’s side of the vehicle and shined his
flashlight inside the car, where he saw three clear cups
containing a yellowish liquid, two in the cupholders of an
armrest in the front seat and one in an armrest in the back seat.
Based upon the smell, Officer Jones concluded the liquid was
“alcoholic ... in nature.” Upon cross-examination Officer Jones
conceded that “a portion” of his “head and ... upper body” were
inside the vehicle when he first saw the cups.
Officer Jones directed the passenger to get out of the car
with the intention of arresting him for possession of an open
container of alcohol in a vehicle upon a public way. See D.C.
Code § 25-1001(a)(2) (2001). He then searched the vehicle and
found on the back seat a capped cognac bottle with a “small
portion” of cognac inside and a backpack. Inside the backpack
he found an Intertech 9 semi-automatic pistol with 23 rounds in
the magazine and one round in the chamber, as well as a
certificate of title for the vehicle and a credit card receipt, both
in the name of Ronald Powell. Upon finding the gun, Officer
Jones said to Officer Masalona, “[H]ook him up,” which was the
officers’ signal “that something serious is happening right now”
and the suspects should be “placed in handcuffs.” The men
were taken into custody and variously charged with a firearms
violation, possession of an open container of alcohol, and
urinating in public.
4
A grand jury indicted Powell on a single count of being a
felon in possession of a firearm and of ammunition, in violation
of 18 U.S.C. § 922(g)(1). Powell moved to suppress the
physical evidence found in his car as the fruits of an unlawful
search. The Government opposed on the ground that, because
the police had probable cause to arrest the two men for urinating
in public and probable cause to arrest the occupant of the vehicle
for possession of an open container of alcohol, the search of the
car was conducted incident to an arrest and therefore was lawful
under New York v. Belton, 453 U.S. 454, 460 (1981).
At the hearing on Powell’s motion the prosecutor
represented that Officer Jones had seen and smelled the alcohol
before he leant his head into the vehicle. Defense counsel
contended Powell had neither seen nor smelled the alcohol until
after he had “physically” entered the vehicle “with his body.”
The district court upheld the search on the ground that Officer
Jones had seen the cups of yellowish liquid in the beam of his
flashlight before he leant into the vehicle. This conclusion was
directly contrary to Officer Jones’s testimony, as the
Government has since conceded in its brief for this appeal.
Officer Jones’s search, and his consequent discovery of the gun
and ammunition in the backpack, therefore cannot be justified
on the ground that the open containers of alcohol were in plain
view; “a search not justified when it is begun cannot be used to
elicit evidence with which to justify the search after the fact.”
United States v. Spinner, 475 F.3d 356, 359 n.* (D.C. Cir. 2007)
(citations omitted). The search of the car can be justified, if at
all, only if it was incident to the arrest of Powell and the other
man for urinating in public.
Powell was convicted by a jury and sentenced to 46 months
in prison, to be followed by three years of supervised release.
He appealed and a divided panel of this Court reversed the
district court’s order denying Powell’s motion to suppress,
5
holding the police may not conduct a warrantless search of the
passenger compartment of a car incident to arrest “before
informing [an occupant of the car] 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.”
Powell, 451 F.3d at 864. The full court vacated the panel’s
decision in order to consider whether “the search of the car was
lawfully conducted as a search incident to Powell’s arrest.”
II. Analysis
Powell argues the search was unlawful because he “had no
reason to believe he was being arrested at the time of the search”
and the “search incident to arrest” exception to the warrant
requirement of the Fourth Amendment to the Constitution of the
United States does not apply to a search conducted prior either
to the announcement of a formal arrest or to the suspect being
taken into custody. We reject that view because we believe this
case is controlled by Rawlings.
A. Rawlings
In Rawlings the Supreme Court held the police may search
a suspect whom they have probable cause to arrest if the “formal
arrest follow[s] quickly on the heels of the challenged search,”
448 U.S. at 111. The Court was quite clear in stating that,
assuming such proximity in time, it is not “particularly
important that the search preceded the arrest rather than vice
versa.” Id. This court applied the Supreme Court’s clear
teaching in United States v. Riley, 351 F.3d 1265, 1269 (D.C.
Cir. 2003) (where “police had probable cause to arrest” before
search, it was “of no import that the search came before the
actual arrest”). So, too, did the Ninth Circuit in 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
6
of the fruits of the search, the precise timing of the search is not
critical” (citations omitted)), and the Tenth Circuit in 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)). Indeed, every circuit that has
considered the question — save one — has concluded that a
search incident to arrest may precede the arrest. See, e.g.,
United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997);
United States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986);
United States v. Currence, 446 F.3d 554, 557 (4th Cir. 2006);
United States v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987);
United States v. Montgomery, 377 F.3d 582, 588 (6th Cir. 2004);
United States v. Ilazi, 730 F.2d 1120, 1126-27 (8th Cir. 1984);
Smith, 389 F.3d at 951; Lugo, 170 F.3d at 1003; United States v.
Banshee, 91 F.3d 99, 102 (11th Cir. 1996). Only the Seventh
Circuit has held that a Belton search may not precede a custodial
arrest, but it did so in an opinion that, like the briefs then before
it, betrayed no awareness of the Supreme Court’s holding in
Rawlings. See Ochana v. Flores, 347 F.3d 266, 270 (7th Cir.
2003).
Applying the teaching of Rawlings to the facts of this case,
we must uphold Officer Jones’s search of the car. Powell
acknowledges the officers had probable cause to arrest him and
his companion for urinating in public before they searched his
car. See D.C. Code § 22-1321 (2001); Scott v. United States,
878 A.2d 486, 488 (D.C. 2005). Indeed, Officer Jones testified
that the officers “detain[ed]” the two men because “they were
going to be placed under arrest” for “[u]rinating in public.”
Immediately following the search, the two 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, that is, “the formal arrest followed
quickly on the heels of the challenged search.” 448 U.S. at 111.
Therefore, as in Riley, because “the police had probable cause
7
to arrest [before the search], the search was valid as one incident
to arrest.” 351 F.3d at 1269.
B. Custodial Arrest Versus Formal Arrest
Powell argues that Rawlings applies only in cases where the
challenged search was preceded by a custodial arrest. Noting,
as did the Seventh Circuit in Ochana, that a custodial arrest
takes place “when a reasonable person in the suspect’s position
would have understood the situation to constitute a restraint on
freedom of movement of the degree which the law associates
with formal arrest,” 347 F.3d at 270, Powell apparently reads
our decision in Riley to mean that a search may precede “the
formal announcement of arrest” if and only if it follows the
functionally more important custodial arrest.
In cases involving a search incident to arrest neither we nor
the Supreme Court have previously expanded upon the
distinction between a “custodial” and a “formal” arrest, but the
Supreme Court did at least advert to such a distinction in
Rawlings, 448 U.S. at 111 (search may lawfully precede arrest
so long as “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)
(“[T]he 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)).
Powell argues — and it is possible, though ultimately
inconsequential — that the suspects in Rawlings and Riley were
under “custodial” but not “formal” arrest when they were
8
searched. In Riley police officers ordered the suspect to
dismount his moped and searched his sock only after they 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 the suspect’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 some reason that “elude[d]” the court, the
Government conceded the initial seizure was not a Terry stop.
351 F.3d at 1267. The court accordingly treated the encounter
as an “arrest” from the moment the officers “converged on the
moped.” Id. The suspect was therefore under custodial arrest,
or so the argument goes, before the challenged search took
place.
In Rawlings, the suspect was “detained” at the residence he
was visiting and, unless he would consent to a body search, was
not permitted to leave for the 45 minutes it took the police to
obtain a search warrant. 448 U.S. at 100. When an officer
returned with the warrant, Rawlings admitted the drugs found in
another guest’s purse were his. Id. at 100-01. Having thus
obtained 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 of the house was a lawful
seizure that was “less intrusive than a traditional arrest,” id. at
110 & n.5, that is, something less than a custodial arrest, but the
Court assumed for the sake of the argument it was an “illegal
detention,” id. at 106.
Whether the suspects in Rawlings and Riley 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 the lawfulness of the search turned upon the
suspect being in custody before he was searched. On the
9
contrary, the Supreme Court in Rawlings said that the “formal
arrest” may follow “quickly on the heels of the challenged
search,” id. at 111, and this court in Riley similarly held it was
“of no import that the search came before the actual arrest”
because the “actual arrest” followed quickly after the search,
351 F.3d at 1269 — exactly as happened in this case.
Powell and our dissenting colleague nonetheless seem 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 — namely,
protection of the officer’s safety and the preservation of
evidence, see, e.g., Belton, 453 U.S. at 457 — which are not
triggered until an encounter ripens into an arrest, that is, until the
suspect is taken into custody. But that is not correct. If
anything, both concerns are greater before the police have taken
a suspect into custody than they are thereafter. 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 his vehicle); cf. id.
at 627-28 (Scalia, J., concurring in judgment) (noting cases
upholding search after suspect is handcuffed and secured in back
of squad car “are legion” and 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 use to resist arrest or any
evidence he might otherwise destroy.
In this case the presence of another person in the searched
vehicle illustrates the need for police who have probable cause
to make an arrest in some circumstances, in the interest of
safety, to conduct a search before making the arrest. Here the
police approached two suspects in proximity to a probable
10
associate who, for all they knew, had access to a weapon. Cf.
Maryland v. Buie, 494 U.S. 325, 334 (1990) (holding that,
incident to an arrest in a home, officers may “as a precautionary
matter and without probable cause or reasonable suspicion, look
in closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched”).
Powell and our dissenting colleague also contend our
decision is inconsistent with Knowles v. Iowa, 525 U.S. 113
(1998) (holding an officer may not conduct a search incident to
arrest when, although the officer has probable cause to make an
arrest, he issues a citation instead of arresting the suspect). But
that is not correct either. Had the officers failed to arrest Powell
and merely issued him a citation, then indeed the search would
be invalid under Knowles. 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”). That, of course, is not
what happened, and we do not say that having probable cause to
arrest is by itself sufficient to bring a search within the Belton
exception to the warrant requirement. Rather, 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”). As we have recently noted: “The key point in
Knowles ... was not that the officer had a lawful ground for
arrest upon which he did not rely, but that he did not arrest the
defendant at all.” United States v. Bookhardt, 277 F.3d 558, 566
(D.C. Cir. 2002).
Two additional considerations impel our conclusion that
Rawlings controls this case. The first is the Supreme Court’s
teaching that in this area of the law bright-line rules are
11
necessary. See, e.g., Thornton v. United States, 541 U.S. at 623
(“need for a clear rule ... justifies the sort of generalization
which Belton enunciated”). The second is that, even if Knowles
could be taken by implication to call Rawlings into question, we
are not at liberty to disregard the Supreme Court’s
straightforward statement that it is not “particularly important
that the search preceded the arrest rather than vice versa,” 448
U.S. at 111. See Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of [the
Supreme] Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls,
leaving to [the Supreme] Court the prerogative of overruling its
own decisions”).
C. Recent Occupant/Thornton
Because we conclude the search in this case was “incident
to [an] arrest,” as the Supreme Court has explicated that phrase,
we must go on to answer the question whether the officers had
reason to believe Powell or his companion 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)). We
conclude they did. Although Officer Jones testified he did not
“know” Powell or the other man was a recent occupant, a
reasonable police officer would have had good reason to believe
as much: indeed, the only reasonable inference, 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.
12
III. Conclusion
Because the search of the car was a lawful search incident
to Powell’s arrest for urinating in public and the officers had
reason to believe Powell was a “recent occupant” of the vehicle,
the district court properly denied Powell’s motion to suppress.
The judgment of conviction is therefore
Affirmed.
ROGERS, Circuit Judge, dissenting: The Fourth Amendment
provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures, shall not be violated and no Warrants
shall issue, but upon probable cause.” In a line of cases
stretching back to United States v. Robinson, 414 U.S. 218
(1973), the Supreme Court, when considering the moments
surrounding an arrest, has carefully balanced a citizen’s right to
privacy against police officer safety. The court today upsets that
balance and spins the “search incident to arrest” exception to the
Fourth Amendment’s warrant requirement in a new direction —
and away from more than a quarter-century of Supreme Court
precedent.
When construing the Fourth Amendment, “[t]he
touchstone . . . is always ‘the reasonableness in all the
circumstances of the particular governmental invasion of a
citizen’s personal security.’” Pennsylvania v. Mimms, 434 U.S.
106, 108-09 (1977) (per curiam). That reasonableness “depends
‘on a balance between the public interest and the individual’s
right to personal security free from arbitrary interference by law
officers,’” Maryland v. Wilson, 519 U.S. 408, 412 (1997). In the
context of the Fourth Amendment’s warrant requirement, the
Supreme Court has held without exception that the right of
privacy is “too precious to entrust to those whose job is the
detection of crime and the arrest of criminals,” Chimel v.
California, 395 U.S. 752, 761 (1969) (quoting McDonald v.
United States, 355 U.S. 451, 456 (1948)), and has authorized
only “narrow and well-delineated exceptions” such as a
warrantless search when a suspect is in police custody to protect
the safety of the officer and to preserve evidence, Flippo v. West
Virginia, 528 U.S. 11, 13 (1999); California v. Acevedo, 500
U.S. 505, 580 (1991).
In Robinson, the Supreme Court determined that an
2
individual’s Fourth Amendment right of privacy is overcome
only at the point when the police make a custodial arrest, 414
U.S. at 234; see Chimel, 395 U.S. at 762-63. In striking this
balance, then-Justice Rehnquist wrote for the Court that the
“extended exposure which follows the taking of a suspect into
custody and transporting him to the police station” endangers
the officer. Robinson, 414 U.S. at 234-35. The Court further
explained: “It is the fact of the lawful arrest which establishes
the authority to search, and we hold 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 the Amendment.” Id. at
236.
In subsequent decisions, the Supreme Court has adhered to
this analysis: custodial arrest establishes the exigencies allowing
for an exception to the warrant requirement. In the seminal case
of New York v. Belton, 453 U.S. 454 (1981), where the Court
established a bright-line rule for law enforcement officers to
follow in conducting searches incident to a prior arrest, id. at
459; see also id. at 463 (Brennan, J., dissenting), the Court
explained 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,” including the contents of any
containers found therein, id. at 460 (emphasis added). More
recently, in Knowles v. Iowa, 525 U.S. 113 (1998), Chief Justice
Rehnquist writing for a unanimous Court reaffirmed its
commitment to the Robinson balance, stating that “the danger to
the police officer flows from the fact of the arrest, and its
attendant proximity, stress, and uncertainty,” id. at 117, and
reiterating the two historical rationales for allowing the
exception to the Fourth Amendment’s warrant requirement: “(1)
the need to disarm the suspect in order to take him into custody,
and (2) the need to preserve evidence for later use at trial,” id. at
3
117-18 (citing Robinson, 414 U.S. at 234).
Today, the court abandons Robinson and its progeny in
favor of a new rule: Whenever a police officer has probable
cause to arrest a suspect, the officer may conduct a search
incident to the possibility of a later arrest so long as the officer
later ratifies the search by making the arrest. See Op. at 7. This
rule finds no basis in Supreme Court precedent or in logic and
imperils the constitutional right against unwarranted intrusions.
I respectfully dissent.
The Supreme Court has made clear that mere probable
cause to arrest a suspect is insufficient to justify the intrusion of
a full-fledged search. In Knowles, the Court rejected extending
the exception under the Robinson and Belton rationale to
searches incident to traffic citations, where state law provided
that the officer could have arrested the suspect if he so desired,
see 525 U.S. at 114-15 & n.1. The Court emphasized in
Knowles that while concerns for officer safety are “both
legitimate and weighty,” id. at 117 (internal quotation marks
omitted), because “‘[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. (quoting
Robinson, 414 U.S. at 234 n.5), the issuance of a citation could
justify no more than ordering the driver and passengers out of
the car and performing a Terry1 patdown, id. at 118. The Court
made clear that the concern for officer safety stemming from a
citation “does not by itself justify the often considerably greater
intrusion attending a full field-type search.” Id. at 117. The
Court explicitly rejected the government’s request “to extend
th[e] ‘bright-line rule’ [under Robinson] to a situation where
concern for officer safety is not present to the same extent [as
when a suspect is taken into custody] and the concern for the
1
Terry v. Ohio, 392 U.S. 1 (1968).
4
destruction or loss of evidence is not present at all.” Id. at 119.
In a situation strikingly similar to Knowles, the court today
insists that the opposite result is justified because Powell was
ultimately arrested, whereas Knowles was not. See Op. at 11.
Certainly, it is not enough that the officers had grounds to arrest
Powell; Robinson says so explicitly, see 414 U.S. at 234 n.5.
Moreover, if the “threat to officer safety” is what justifies the
search of a lawfully parked car several feet from Powell, then
the threat must exist when the search occurs. It tortures all
principles of reasoned logic to conclude that somehow the risk
to officers at the time of the search is retroactively heightened
based on the officer’s subsequently communicated decision to
arrest. Consistent with Robinson and Knowles, the officer-safety
rationale justifies abridging a suspect’s Fourth Amendment
rights only if, at the time of the search, the suspect is under
custodial arrest. The risks attendant to the “fact of the arrest”
ripen only when a suspect is sufficiently on notice that he is no
longer free to leave. Contrary to the court’s suggestion, Op. at
9, the Supreme Court has made both the sequencing of events
and the distinction between a lawful custodial arrest and a
formal arrest explicit in addressing the warrant exception. E.g.,
Knowles, 525 U.S. at 114; Belton, 453 U.S. at 460; Robinson,
414 U.S. at 233-34.
The court further maintains that the concerns for officer
safety are greater before the officer completes the arrest. See
Op. at 9. But this assertion rewrites Supreme Court
jurisprudence and does so without even so much as an
evidentiary proffer by the government, much less findings of
fact from the district court. The court’s analysis of police safety
in explaining the exigencies that trigger the warrant exception
has never been adopted by the Supreme Court as it runs entirely
counter to the Robinson and Belton line of cases. Moreover, the
court cannot explain why, if the concern for officer safety is
5
elevated because of the possibility that the officer will arrest the
suspect, before the suspect knows the officer’s intentions, it
matters whether the officer subsequently makes an arrest.
Instead, the court chooses to ignore the Fourth Amendment
balance carefully struck by the Supreme Court over the decades,
unmooring the rationales from their historical groundings at the
behest of a concurring opinion that, in fact, leaves intact the
Robinson balance based on a prior custodial arrest and argues
for limiting the scope of the subsequent search in a manner that
would not support Powell’s arrest for a firearms violation. See
Op. at 9 (citing Thornton v. United States, 541 U.S. 615, 617,
631-32 (2004) (Scalia, J., with whom Ginsburg, J., joins,
concurring in the judgment) (proposing to “limit Belton searches
to cases where it is reasonable to believe evidence relevant to
the crime of arrest might be found in the vehicle”)); see also
Thornton, 541 U.S. at 634 (Stevens, J., with whom Souter, J.,
joins, dissenting).
The only benefit of the court’s new approach is that it
purports to establish a bright line. But just because a line is
bright does not make it defensible — it would be a “bright-line
rule,” for example, to say “police officers may do whatever they
want.” In this instance, the court’s bright-line rule, Op. at 11, is
particularly unwise as a matter of policy. First, there is no bright
line. An officer cannot know the permissible scope of a search
until the basis for the arrest is known, which it is not when he
conducts the search. Thus an officer who has all the evidence
needed to make an arrest will proceed to conduct an unrelated
search, as occurred in Knowles, 525 U.S. at 488. A later
warrantless arrest, based on any discovered contraband, will be
condoned under the court’s new rule as long as the officer also
arrests the nearby person for the unrelated offense for which the
officer had probable cause to arrest prior to the search. Along
the way, the protections afforded by the Fourth Amendment are
lost.
6
Second, the court’s new rule creates perverse incentives for
law enforcement that run contrary to the policy determinations
made by the Supreme Court in recognizing narrow exceptions
to the warrant requirement. By authorizing the post hoc
ratification of unconstitutional conduct, the court’s approach
encourages law enforcement officers to use minor pretextual
arrestable offenses — ones for which, in practice, an offender
would rarely be arrested — to justify fishing expeditions for
evidence unrelated to the offense for which the officer originally
had probable cause to arrest. If the officer happens to find
evidence of a serious law violation, the officer can make the
arrest and everything will have been proper; if the officer finds
nothing and lets the offender off, courts of law are unlikely to
have the opportunity to ensure that police conduct is consonant
with the Fourth Amendment. The record in the instant case
demonstrates that a police officer who first searches and then
arrests will testify, when pressed, that he intended, before the
search, to arrest the suspect who was “detained.” Not even
critics of Belton’s scope-of-search rule propose this outcome.
See Thornton, 541 U.S. at 632 (Scalia, J., with whom Ginsburg,
J., joins, concurring in the judgment); id. at 634 (Stevens, J.,
with whom Souter, J. joins, dissenting). The bright line
established by the Supreme Court in Robinson and in Belton and
its progeny is thus overturned in favor of a rule allowing
virtually standardless warrantless searches. The Supreme Court
has never endorsed such an approach, even for cars. See, e.g.,
Cady v. Dombrowski, 413 U.S. 433 (1973).
Instead of following the long line of cases beginning at least
with Robinson, the court holds that Rawlings v. Kentucky, 448
U.S. 98 (1980), is dispositive of Powell’s appeal. Op. at 2, 5.
In Rawlings, then-Justice Rehnquist, writing for the Court,
upheld a search “as incident to [Rawlings’] formal arrest.” Id.
at 111 (emphasis added). Rawlings and a companion were
detained by the police for approximately forty-five minutes
7
before Rawlings was searched and then formally arrested. See
id. at 107, 110-11. The Court concluded that “[w]here the
formal arrest followed quickly on the heels of the challenged
search of [his] person, we do not believe it particularly
important that the search preceded the arrest rather than vice
versa.” Id. at 111 (emphasis added). The court today latches
onto this language and states that “[a]pplying the teaching of
Rawlings to the facts of this case, we must uphold Officer Jones’
search of the car. . . . As in Rawlings, that is, the ‘the formal
arrest followed quickly on the heels of the challenged search.’”
Op. at 6-7 (quoting 448 U.S. at 111). But the court cannot
explain why the Supreme Court in Rawlings emphasized that
only the formal arrest followed the challenged search. The court
can reach its result only by ignoring both the language of
Rawlings and its factual context, which shows that the holding
was not a wide-ranging abandonment of the Robinson balance
but rather a straightforward application of existing law. Doing
so distorts the rule of Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989), that a lower court
should follow a Supreme Court decision that directly controls.
Op. at 11.
To state the obvious, the holding of an opinion can be
understood only in the context of the case that was before the
court. See Coleman v. Thompson, 501 U.S. 722, 735-36 (1991);
Phelps v. United States, 421 U.S. 330, 333-34 (1975); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C Cir. 1998) (en
banc). The context defines the case or controversy that the court
is entitled to resolve. In Rawlings, the defendant not only was
in police custody prior to the search of his person by the police
— he had been given his Miranda warnings.2 Rawlings, 448
U.S. at 100. During the forty-five minutes of detention while
the police were seeking a search warrant for unlawful drugs, the
2
Miranda v. Arizona, 384 U.S. 436 (1966).
8
police had informed Rawlings that he could leave the apartment
only if he consented to a body search. Id. The police had come
to the apartment with an arrest warrant for drug violations by
another man and seen marijuana seeds in plain view on a mantel.
Id. The fact that Rawlings was in police custody — the police
instructions and the Miranda warnings eliminated any ambiguity
about the intentions of the police — before the search of his
person created the exigencies underlying the exception to the
warrant requirement discussed in Robinson. Moreover, before
Rawlings was searched, the police had obtained a search warrant
for the apartment. It was in this context — a context without
ambiguity, in which Rawlings was clearly under custodial arrest
— that the Supreme Court made its statement that it was “not
particularly important” whether Rawlings was searched before
his “formal arrest” by the police. Id. at 111 (emphasis added).
The Court’s reference to “formal arrest” signals that it
recognized that Rawlings was in custody prior to the search.
After all, the Court had just completed an extended discussion
of Rawlings’ suppression claim based on his having been
unlawfully detained for forty-five minutes. Id. at 104-06. The
evidence in Rawlings thus avoided the conundrum presented to
law enforcement under the court’s new rule because Rawlings
was already in police custody before they searched his person
and any further search of the premises occurred pursuant to a
search warrant for the apartment. Id. at 100-01 .
It is telling that the court can point to no instance in which
the Supreme Court has adopted its out-of-context interpretation
of Rawlings. The court today chooses to believe that the
Supreme Court’s use of the modifier “formal” was a mere
superfluity because the Supreme Court did not speak at length
about the difference between custodial and formal arrest. Op. at
7-8. But the context of the one-paragraph discussion speaks
otherwise and the court can point to no indication that the
Supreme Court intended to depart so dramatically from its
9
previous approach. The Supreme Court’s decisions subsequent
to Rawlings, in Belton and its progeny, adhere to the Robinson
balance even when citing Rawlings and require that the suspect
be in lawful police custody prior to a warrantless search. Such
a momentous departure from decades of precedent would not be
hidden. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001). Nor would so significant a turnabout be subsequently
ignored by the Court when, as in Belton, 453 U.S. at 459, the
Court was formulating a “straightforward rule” for the police.
Moreover, the court today points to no instance in which the
Supreme Court has used the phrase “incident to” to mean
anything other than a search that has followed a lawful custodial
arrest; the formal arrest may follow the search, but for the
warrant exception to apply, the police must have unambiguously
taken prior action such that a reasonable person in the suspect’s
position would understand that he was in police custody and that
formal arrest would follow shortly. See Belton, 453 U.S. at 461;
Robinson, 414 U.S. at 226 (quoting Chimel, 395 U.S. at 762-63);
id. at 232 (quoting People v. Chiagles, 142 N.E. 583, 584 (N.Y.
1923) (Brandeis, J.)); Ochana v. Flores, 347 F.3d 266, 270 (7th
Cir. 2003). While the Supreme Court has shifted ground over
the years on the scope of the area that the police may reasonably
search incident to an arrest, compare Smith v. Ohio, 494 U.S.
541, 543 (1990), with Chimel, 395 U.S. 752, it has adhered to
the position that the suspect’s prior lawful custody by the police
creates the exigencies justifying the exception to the warrant
requirement. For example, in Smith, 494 U.S. at 543, the
Supreme Court cited Rawlings for the proposition that “[i]t is
axiomatic that an incident search may not precede an arrest and
serve as part of its justification.” Ignored by this court today,
the Supreme Court in Rawlings, in rejecting Rawlings’
challenge to the lawfulness of the search of his person,
referenced only cases in which police custody served as the
10
precondition to triggering the warrant exception.3
3
Each of the cases cited in Rawlings, 448 U.S. at 111,
involved police action that clearly signaled to the suspect that he was
in police custody prior to the search:
In Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967), the
police had spotted a car matching a “look-out” for a car wanted in
connection with a robbery and assault, forced Bailey’s car to the side
of the road while two other police cars blocked his car at the front and
rear, and an officer, “apparently with gun in hand, ordered the
occupants to sit still and keep their hands in plain sight.” Id. at 307.
In Cupp v. Murphy, 412 U.S. 291 (1973), Murphy had
voluntarily come to the police station upon learning of his estranged
wife’s murder. Suspecting Murphy might be implicated, the police
asked Murphy if they could take a sampling from his fingernails. See
id. at 292. When Murphy refused, the police took the sampling over
his objection. Murphy “was not formally ‘arrested’ until
approximately a month later.” Id. at 294. The Court noted that at the
time the sampling was taken Murphy, “was obviously aware of the
detectives’ suspicions [that he had murdered his wife].” Id. at 296.
That was sufficient, the Court concluded, to motivate him “to attempt
to destroy any incriminating evidence,” and in order to preserve
evidence, the Court held that the police were justified “in subjecting
him to the very limited search necessary to preserve the highly
evanescent evidence they found under his fingernails.” Id.
In United States v. Gorman, 355 F.2d 151 (2d Cir. 1965), the
district court found that the police officer approached two known drug
addicts (Gorman and Roche) whom he suspected of using narcotics,
saw Gorman injecting himself with a hypodermic needle, and ordered
the men to stay in the car where they were seated; the officer then
placed Gorman under arrest, and thereafter searched the car. Rejecting
Roche’s claim that he had not consented to the car search, the Second
Circuit injected dictum into its opinion, considering an alternative
basis not argued by the government, for holding that the search was
reasonable because the police had probable cause to arrest Roche
11
The court overstates the support in the circuit cases, Op. at 6, for
in evaluating the reasonableness of police action, the circuit
cases involved direct communication by the police that a suspect
was not free to leave and would be arrested, and thus do not
align with the court’s extrapolation of Rawlings.4
although the formal arrest was postponed. Id. at 160.
The final case cited in Rawlings involved a plain view seizure.
In United States v. Brown, 463 F.2d 949 (D.C. Cir. 1972), a police
officer observed two men in a telephone both and suspected a drug
transaction was taking place. The officer approached and identified
himself, and upon noticing Brown’s eyes were glassy concluded he
was high on narcotics. The officer seized an envelope sticking out of
Brown’s shirt pocket — an “envelope of the type in which he had
found narcotics on previous occasions” — and found capsules with
white power and “formally notified [Brown] that he was under arrest.”
Id. at 950. The district court ruled that an envelope was in plain view;
on appeal, this court cited Bailey and Gorman, upholding the search
even though Brown “ha[d] not formally been placed under arrest.” Id.
4
The Seventh Circuit, in considering this issue in Ochana,
347 F.3d at 270, held that “[i]n order to conduct a Belton search, the
occupant of the vehicle must actually be held under custodial arrest.”
As the court’s opinion notes, Op. at 6, however, since the Supreme
Court’s decision in Knowles, other circuits to consider this issue have
reached different conclusions by focusing on the language in
Rawlings. What the court fails to acknowledge, however, is that the
evidence in those cases, and in the pre-Knowles cases, is very different
from the instant case and that those courts’ citations to Rawlings
reflect that Rawlings speaks to searches of suspects who are under
custodial arrest. See United States v. Currence, 446 F.3d 554, 557
(4th Cir. 2006) (prior to search, police approached suspect identified
by confidential informant, told him to get off his bicycle, and upon
learning of an outstanding warrant for his arrest, handcuffed him;
police then searched bicycle and after finding drugs in the bicycle
placed defendant under formal arrest); United States v. Smith, 389
12
F.3d 944, 951 (9th Cir. 2004) (prior to search, driver pulled over for
speeding was unable to produce license and registration or
identification and was told by the police to get out of car and walk to
patrol car; upon determining driver did not have valid driver’s license
and registration and had given the police a false social security
number, police patted down driver and searched the car); United States
v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (prior to search,
police told defendant she was in “investigative custody” and she was
given Miranda warnings); United States v. Lugo, 170 F.3d 996, 1003
(10th Cir. 1999) (prior to search, driver of speeding car stopped by
police was told he was not free to go and told several times that he
would be arrested if he could not produce any identification; driver did
not produce identification and when motor vehicle records indicated
driver had not been issued a license, police patted down driver and
searched passenger compartment of car); United States v. Bizier, 111
F.3d 214, 217 (1st Cir. 1997) (prior to search of car, driver pulled over
for speeding consented to the search of the car trunk and made
incriminating admissions that drugs were inside the passenger
compartment); United States v. Banshee, 91 F.3d 99, 102 (11th Cir.
1996) (search upheld under Terry in view of probable cause to arrest
and exigent circumstances — no female officer available to search
female passenger; dictum citing Rawlings where, prior to search,
passenger in stopped car was asked by police whether she had
“anything” on her person and what she had “stuck” around her waist;
when passenger claimed to be pregnant, passenger was frisked and
then handcuffed); United States v. Hernandez, 825 F.2d 846, 852 (5th
Cir. 1987) (prior to search, defendant matching witness’s description
of money passer was stopped by police and asked to show paper
money and upon production, police frisked defendant for weapons;
upon feeling crumpled paper in pocket and defendant’s refusal to
produce it, police officer reached into pocket and retrieved
mimeographed copy of twenty dollar bill; Fifth Circuit viewed
defendant as being under custodial arrest at time of search); United
States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986) (prior to search,
police confronted defendant with his culpability for harboring a
fugitive, based on statement of fugitive’s father that fugitive was in
defendant’s apartment, and placed defendant under custodial arrest;
13
Heretofore, this court’s precedent has reflected the limits of
the language in Rawlings on which the court today relies. For
example, in United States v. Riley, 351 F.3d 1265 (D.C. Cir.
2003), three police officers surrounded Riley, whom the police
had probable cause to arrest for selling drugs, and ordered him
to get off his moped. Id. at 1267. At that point one of the
officers noticed a bulge in Riley’s sock and reached down and
pulled out a package from his sock. Id. As the court today
notes, this court held, citing Rawlings, that under the
circumstances, it mattered little that Riley’s arrest followed the
search of his person. Id. at 1269. What the court today fails to
acknowledge is the court’s recognition in Riley that there was a
prior custodial arrest when the police ordered Riley to get off his
moped and surrounded him so he could not move; the court
stated “it seems clear that by [the time of the search] a
reasonable person in Riley’s shoes would have believed he was
not free to leave.” Id.
defendant formally arrested after search of apartment revealed
fugitive); United States v. Ilazi, 730 F.2d 1120, 1126-27 (8th Cir.
1984) (prior to search, police made investigatory stops of two men
without luggage deplaning at airport and told them they were under
arrest; subsequent search of their boots and underwear revealed
drugs).
To the extent the circuits speak in broad terms in citing
Rawlings, the factual context of these cases paints a very different
picture than is suggested by the court’s string citation. Notably, the
opinions from the Fourth, Ninth and Tenth Circuits do not indicate any
awareness of Knowles — it is absent from their analysis. The Sixth
Circuit, without explanation, simply indicates that Knowles may not
be fully consistent with Rawlings. Montgomery, 377 F.3d at 586. The
Seventh Circuit, in contrast, considered the effect of Knowles with
respect to the timing of Belton searches.
14
Unlike Rawlings or Riley, there is no evidence that Powell
or the other urinating man was under custodial arrest when the
police searched the car, nor any such finding by the district
court.5 The court relies on Officer Jones’ conclusory statement
at the suppression hearing that two other officers were detaining
Powell and the other man in order to arrest them for urinating in
public. Op. at 6. Although Officer Jones asserted that the two
men were not free to leave and that they were going to be
arrested for urinating in public, he offered no factual description
or temporal identification whatsoever to support his bald
assertions, much less to explain in what manner the two men
5
The absence of both evidence and district court findings is
explained by the government’s changing theories to justify the search
of the car and the seizure of the contents of the backpack on the rear
seat. See Powell v. United States, 451 F.3d 862 (D.C. Cir. 2006)
(vacated upon grant of rehearing en banc). In the district court, the
government argued that the search of the car was incident to the arrest
of a third man, who was sitting in the car, because open containers of
alcohol were in plain view inside the car. Hence, the government
offered evidence focusing on the third man and the search of the car
after he was removed from the car by the police. On appeal, the
government confessed error because the district court’s finding of a
lawful search based on plain view was clearly erroneous, being
directly contrary to the officer’s testimony. The government then
changed its theory, contending that the existence of probable cause to
arrest Powell for disorderly conduct for public urination was alone
sufficient to uphold the search of the car. Id. at 866-67 (D.C. Cir.
2006). The government relied on Rawlings and Riley, 351 F.3d at
1269. After the court unanimously rejected that theory, the
government before the en banc court has adopted the panel dissent’s
theory, relying on Rawlings, that an arrest must, in fact, occur based
on the probable cause existing prior to the search of the car. Id. at
873.
15
were “detained” prior to the search of the car. In fact, Jones
admitted that prior to the search of the car, unlike in Rawlings,
see supra note 3 and in the circuit cases cited by the court, see
supra note 4, the police had not said anything to the two men;
nor had the men been frisked or handcuffed. Jones also
admitted that prior to the search the police had no information
about the two urinating men or about the car, and no information
linking the men to the car. There is no evidence that either
Powell or the other man said anything to suggest that they knew,
prior to the car search, that they were in police custody. The
evidence thus shows only that three police officers saw two men
urinating in public in a non-residential area late at night, they got
out of their car, and two officers began approaching the two men
from the rear while the third officer approached a car in which
a third man was sitting and searched it. The conclusory
testimony — they were “detained” — affords no way for an
appellate court to determine, particularly in the absence of any
district court findings of fact, whether Powell was, like
Rawlings and Riley, in police custody prior to the search of the
car, much less whether he understood prior to the search that he
was going to be arrested for urinating in public. To so conclude
would require rank speculation at the appellate level.
The Supreme Court has never suggested that a mere
conversation with a police officer, much less an officer’s
approach, suffices to trigger either of the historical exceptions
to the warrant requirement. Absent police action that would
alert a suspect that he is in custody, thereby providing a motive
for a suspect to resist the police or to destroy evidence, even the
existence of probable cause does not suffice. See Knowles, 525
U.S. at 116-17. For all we know from the barren evidentiary
record in this case, the two officers who approached the
urinating men as the other officer searched the car simply said:
“Don’t you know you can’t pee in public?” just like an officer
might say to a pedestrian, “Don’t you know you can’t cross the
16
street when the light is red?” or to the driver of a car, “Don’t you
know you can’t go through a stop sign without stopping?”
Unlike the statements by the police in the cases cited in
Rawlings, see supra note 3, and in the circuit cases, supra note
4, such statements do not indicate that the officer has decided to
take any further police action, either by issuing a citation or by
taking the person into custody or by arresting him. Neither does
police silence. Moreover, as Powell suggests, there is nothing
to indicate the police would have arrested the two men solely for
urinating in public when to do so would have entailed
transporting them for booking and several hours of paperwork.
The government proffered no evidence, much less statistical
data, to support an inference that the officers would have
arrested Powell in the absence of the fruits of the car search.
Alternatively, the court attempts to justify the search of the
car because the presence of a passenger indicated the need for
the police to search the car before taking anyone into custody or
making a formal arrest. Op. at 10. The third man is a red
herring insofar as neither the government nor the court purports
to justify the search on the basis of Terry, 392 U.S. 1. In any
event, the car was lawfully parked a few feet in front of the two
urinating men. The police had no information about the car or
any of the men, nor any indication that the men were armed or
dangerous. The police never saw Powell or the second man in
the car. The police did not speak with even one of the three men
before a police officer searched the car. As the Supreme Court
observed in Knowles, 525 U.S. at 117-18, there were lawful
ways for officers to protect themselves and to search for
weapons. Perhaps the district court would have found that the
police officers could have justified having the third man exit the
car, see Wilson, 519 U.S. at 414, and conducting a patdown
search, see Terry, 392 U.S. 1. But there is no evidence here that
the police had any reason to suspect that the passenger was
dangerous or that the car itself contained contraband or
17
dangerous weapons. Cf. Cady, 413 U.S. at 446-47. The
government offered no evidence to suggest that removing the
passenger would not have addressed any concern about police
safety; nor has it made that argument on appeal. As the Supreme
Court indicated in Maryland v. Buie, 494 U.S. 325, 334 (1990),
where the police arrived on the scene with an arrest warrant for
Buie, “there must be articulable facts which . . . would warrant
a reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the
arrest scene.” Id. The Court took pains to note that:
despite the danger that inheres in on-the-street
encounters and the need for police to act quickly for
their own safety, the Court in Terry did not adopt a
bright-line rule authorizing frisks for weapons in all
confrontational encounters. Even in high crime areas,
where the possibility that any given individual is armed
is significant, Terry requires reasonable, individualized
suspicion before a frisk for weapons can be conducted.
Buie, 494 U.S. at 334 n.2. The district court here made no such
finding and this court has recently reaffirmed that not every
potentially dangerous situation confronting the police can justify
a warrantless search of an occupied car. See United States v.
Spinner, 475 F.3d 356 (D.C. Cir. 2007).
In Thornton the Supreme Court held, embracing the
Robinson balance, 541 U.S. at 620-21, that the Belton exception
applies regardless of whether the suspect was in the car before
the police took him into custody or had been seen in the car by
the police and recently exited the car, id. at 621-22. There is no
district court finding that the police had reasonable grounds to
conclude that Powell was a recent occupant of the lawfully
18
parked car. But even assuming an arrest for disorderly conduct6
would justify the search of a lawfully parked car several feet
away, and even assuming Thornton can be stretched to fit the
evidence (or lack thereof) here, see Op. at 11; but see United
States v. Mapp, 476 F.3d 1012, 1019 (D.C. Cir. 2007), the court
ignores the requirements of the Fourth Amendment for
searching cars and for triggering the warrant exception,
requirements underlying the government’s concession that the
search of the car in Powell’s case could not be justified on the
basis of the fruits of the search. See supra note 5. See also
Thornton, 541 U.S. at 624 (“[L]ower court decisions now seem
to treat the ability to search a vehicle incident to the arrest of a
recent occupant as a police entitlement rather than as an
exception justified by the twin rationales of Chimel v.
California, 395 U.S. 752 (1969)” [adopted in Robinson.])
(O’Connor, J., concurring in part).
Accordingly, with no consideration of the history that gave
rise to the Fourth Amendment’s proscription of “unreasonable
searches and seizures,” see Chimel, 395 U.S. at 760-61, and no
acknowledgment that Rawlings embraces the balance struck by
the Supreme Court in Robinson between privacy interests and
police safety as carried forward in Belton and its progeny, the
court today leaves the venerable balance embodied in the
exception to the warrant requirement in tatters. The “few
specifically established and well-delineated exceptions” to the
warrant requirement, Acevedo, 500 U.S. at 580; Katz v. United
States, 389 U.S. 347, 357 (1967), based on the Robinson balance
were neither expanded nor abandoned in Rawlings. Because the
government bears the burden of showing that an exception to the
warrant requirement applies, see Robinson, 414 U.S. at 243;
6
Urinating in public is a violation of the District of
Columbia’s disorderly conduct statute, D.C. CODE § 22-1321 (2001);
Scott v. United States, 878 A.2d 486, 487-88 (D.C. 2005).
19
United States v. Most, 876 F.2d 191, 193 (D.C. Cir. 1989), and
it has failed to show that Powell, like the defendant in Rawlings,
was in police custody prior to the search of the car, even
assuming his connection to the car, the conviction cannot stand.