United States v. Joseph Donahue

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 13-4767
________________

UNITED STATES OF AMERICA,
Appellant

v.

JOSEPH P. DONAHUE
________________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 3:11-cr-00033)
Honorable A. Richard Caputo, District Judge
________________

Argued June 10, 2014

BEFORE: AMBRO, GREENBERG, and BARRY,
Circuit Judges

(Filed: August 22, 2014)
______________
Peter J. Smith, Esq.
Todd K. Hinkley, Esq. (argued)
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

Attorneys for Appellant

Gino A. Bartolai, Jr., Esq. (argued)
88 North Franklin Street
Wilkes-Barre, Pennsylvania 18701

Attorney for Appellee

______________

OPINION OF THE COURT
______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

In light of the “automobile exception” to the usual search
warrant requirement, it is difficult to pick a worse place to
conceal evidence of a crime than an automobile. The Supreme
Court has interpreted—and reinterpreted—the automobile
exception so expansively that the Court essentially has obviated

2
the requirement that the government obtain a warrant to search a
vehicle provided it has probable cause to believe that the vehicle
contains evidence of a crime. Nevertheless, appellee Joseph
Donahue made a successful challenge in the District Court to the
warrantless search of a vehicle that he had been driving but did
not own because the Court accepted his contention that the
government did not have probable cause for the search. The
government appeals from the suppression order entered on
November 19, 2013.

We trace the immediate background of this case to
Donahue’s conviction for fraud and related offenses and the
resulting ten-year custodial sentence that a district court imposed
on him in the Middle District of Pennsylvania. The court
directed Donahue to surrender by a given time at a designated
place to serve this sentence but he did not do so. Consequently,
the court issued a warrant for his arrest and a short time later
United States marshals apprehended Donahue in Las Cruces,
New Mexico, while he was in his son’s Ford Mustang. The
marshals took possession of the Mustang and, over the next five
days, personnel from two different federal agencies searched the
vehicle several times, photographed, and even x-rayed it, all
without applying for or obtaining a search warrant. Eventually
an FBI agent found a firearm magazine clip under the Mustang’s
driver’s seat, a discovery that led to their finding a semi-
automatic pistol in a bag that they had seized from the
Mustang’s trunk.

Donahue’s failure to surrender and the recovery of the
pistol resulted in a grand jury returning indictments against him
in the Middle District of Pennsylvania for failure to surrender

3
under 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(i) and for firearms
offenses under 18 U.S.C. §§ 922(g)(1), (2), 922(j), and
924(a)(2). Donahue filed a motion to suppress evidence found
in the Mustang and in a hotel room in Las Cruces in which he
had registered under a false name. The District Court granted
the motion on the ground that the government lacked probable
cause for the searches. United States v. Donahue, No. 3:11-cr-
00033, 2013 WL 6080192, at *6 (M.D. Pa. Nov. 19, 2013). The
government appealed from the suppression order to the extent
that the Court suppressed evidence found in the Mustang. The
government, however, did not appeal from the portion of the
order suppressing the evidence seized in the hotel room.

Even though it is clear that the government had the
opportunity to seek a warrant before searching the Mustang, we
hold that the automobile exception to the warrant requirement
obviated its need to do so as the government had probable cause
for the search of the Mustang and its contents.1 Inasmuch as the
automobile exception was applicable, there were virtually no
temporal, physical, or numerical limitations on the search’s
scope. Thus, the government could make a broad search of the
Mustang including its contents, even if contained in packages—
and could repeat the search as long as it remained in continuous
control of the Mustang.2 The government took advantage of this

1
As we explain later, there were several searches of the Mustang
and, because the initial search was lawful, the searches that
followed also were lawful here. Therefore, we sometimes refer
to all of the searches as a single search.

We are not concerned in this opinion with a situation in which
2

4
broad authority and, in making its search lawfully uncovered
evidence that Donahue had committed weapons-related
offenses. Consequently, the District Court should not have
suppressed the evidence the government seized in the search.
Accordingly, we will reverse the order suppressing the evidence
seized in the search of the Mustang and its contents and we will
remand the case to the District Court for further proceedings.

II. FACTUAL BACKGROUND

Donahue enticed individuals to engage in his business
ventures so that he could appropriate their identities and make
unauthorized purchases using their credit. This scheme led to
his conviction for 16 counts of bank fraud, money laundering,
accessing an unauthorized device, and making false statements.
United States v. Donahue, 460 F. App’x 141 (3d Cir. 2012)
(affirming conviction). On December 3, 2010, the District
Court sentenced Donahue to a 121-month custodial term and
ordered him to pay $325,414 in restitution. Id. at 142. The
Court directed Donahue to surrender by January 4, 2011, at his
place of confinement at Fort Dix, New Jersey.

Donahue, however, did not surrender as ordered, and
consequently the District Court issued a warrant for his arrest on
January 5, 2011. Instead of surrendering, Donahue drove across
the country in his son’s red Ford Mustang to Las Cruces in an
attempt to avoid imprisonment. This attempt came to naught

the government’s control of the vehicle was not continuous.

5
when United States marshals in Scranton, Pennsylvania, in the
Middle District of Pennsylvania, became aware that Donahue
might be in Las Cruces and notified authorities there of that
information. Two weeks after Donahue should have
surrendered, United States marshals in Las Cruces, assisted by
New Mexico State University police, arrested him near the
campus when they saw him exit a hotel in which he had
registered under an alias and enter his son’s Mustang. United
States Marshal Steven Archuleta and other officers ordered
Donahue to exit the Mustang and he did so without incident.
Archuleta then arrested and searched him, finding about $2,500
in cash.

After Archuleta handcuffed Donahue and took him to his
patrol car, he looked into the Mustang and saw a “very messy”
interior, J.A. 123, containing, among other items, various maps
in plain view. Following instructions from his supervisor and a
deputy United States marshal in Scranton, Archuleta seized the
Mustang—a step that he acknowledged he “probably” would not
have taken without those orders. J.A. 155. Inasmuch as
Archuleta did not know “exactly what [evidence] was needed,”
J.A. 147, he also entered Donahue’s hotel room to take the trash
from it and to conduct a superficial search: he glanced around
the room but did not open any drawers or look into the closets.
As we have indicated, the government did not have a warrant for
these searches.

The government subsequently transferred the Mustang to
a marshals’ facility in Las Cruces, where the marshals searched
it pursuant to their inventory policy. Archuleta and two other
deputy marshals photographed the vehicle “without essentially

6
moving anything around,” J.A. 124, searched its trunk and cabin
(including the glove box and other compartments), and removed
loose items. This process revealed non-incriminating items and
closed bags, which at that time the marshals did not open. The
marshals then transferred the vehicle to a public garage and
placed the bags and other items that they removed in a secure
holding area.

The next day, again under instructions from Scranton—
this time from an FBI regional office—an FBI agent in New
Mexico, Amy Willeke, retrieved the Mustang and drove it to an
FBI facility. When Willeke reached the FBI facility, she made a
second inventory search of the Mustang during which she
discovered a Glock .40 caliber magazine behind the driver’s
seat.

After logging her discovery into evidence and having the
car x-rayed, Willeke directed another agent to obtain Donahue’s
loose items that the Marshals still possessed so that FBI agents
could inventory the items and transfer them to Scranton. On
January 25, 2011, five days after Donahue’s arrest, Archuleta
and an FBI agent opened and searched the previously seized
bags and found a Glock semi-automatic pistol.

III. PROCEDURAL BACKGROUND

The foregoing events led a grand jury in the Middle
District of Pennsylvania to return an indictment against Donahue
for failure to surrender and for weapons charges. Donahue

7
subsequently moved in the District Court to suppress all the
evidence seized from the Mustang and the hotel room, arguing
that the warrantless searches were unreasonable under the
Fourth Amendment. After a hearing, the Court granted
Donahue’s motion by order dated November 19, 2013.
Donahue, 2013 WL 6080192.

Before addressing the substance of Donahue’s motion,
the District Court found that he had standing to challenge the
searches even though he had registered in the hotel under an
alias and did not own the Mustang. Id. at *3-5. The Court then
held that the conditions for the automobile exception, which, if
applicable, would have allowed the government to make a
warrantless search of the Mustang, had not been met because the
government lacked probable cause to believe that there was
contraband in the vehicle. Id. at *6.3

The government appeals, making only one of the
arguments it raised in the District Court. Challenging the basis
for the Court’s order head-on, the government contends that it
had probable cause to search the Mustang because it was
reasonable to believe that Donahue would be in possession of
items that could help him avoid detection and that the
possession of those items would support a charge that he
knowingly failed to surrender to serve his sentence. Appellant’s
br. at 13-14. According to the government, none of the items

3
Although Donahue at oral argument on this appeal emphasized
that the government did not have a search warrant, in his brief
he does not contend that it needed a warrant to make the search
regardless of whether it had probable cause for the search.

8
found in plain view in the Mustang, including the materials that
were not contraband (such as maps, newspapers and luggage)
should have been suppressed. That evidence, the argument runs,
though not contraband, helped establish probable cause for the
government to conduct a full search of the vehicle. The
evidence also tended to show that Donahue had planned his
flight and acted deliberately in violation of the statute, 18 U.S.C.
§ 3146(a)(2), that criminalizes knowing failures to surrender,
and that his failure to surrender was not the result of
circumstances beyond his control. The latter point was
significant because if it could be shown that circumstances
beyond Donahue’s control had precluded him from surrendering
as ordered, Donahue would have had an affirmative defense to
the failure-to-surrender charge, see 18 U.S.C. § 3146(c).
Appellant’s br. at 16-17.

IV. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. §
3231,4 and we have jurisdiction under 18 U.S.C. § 3731. “We
review a district court’s grant of the motion to suppress for
clear error as to the underlying facts, but exercise plenary review
as to its legality in light of the court’s properly found facts.”
United States v. Crandell, 554 F.3d 79, 83 (3d Cir. 2009)
(internal quotation marks, brackets, and citation omitted). On

4
Donahue does not contend on this appeal that under U.S.
Const. art. 3, § 2, cl.3, venue for the weapons charges should
have been in the District of New Mexico.

9
this appeal we exercise only plenary review, as there is no
dispute of any material fact.

V. DISCUSSION

The Fourth Amendment protects people from
“unreasonable searches and seizures” of their “persons, houses,
papers, and effects.” U.S. Const. amend. IV. But this protection
is triggered only if the state invades an area in which the person
has a “constitutionally protected reasonable expectation of
privacy.” New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960,
965 (1986) (quoting Katz v. United States, 389 U.S. 347, 360,
88 S.Ct. 507, 587 (1967) (Harlan, J., concurring). Thus, a
defendant moving to suppress evidence seized in a search “bears
the burden of proving not only that the search . . . was illegal,
but also that he had a legitimate expectation of privacy” in the
subject of the search. Rawlings v. Kentucky, 448 U.S. 98, 104,
100 S.Ct. 2556, 2561 (1980). The latter inquiry turns on two
specific questions: “(1) whether the individual demonstrated an
actual or subjective expectation of privacy in the subject of the
search or seizure; and (2) whether this expectation of privacy is
objectively justifiable under the circumstances.” Free Speech
Coal., Inc. v. Att’y Gen., 677 F.3d 519, 543 (3d Cir. 2012).

After our initial examination of this appeal, we requested
supplemental briefing on the question of whether Donahue, who
was a fugitive,5 could assert that he had a reasonable expectation

Although Donahue admits that he was apprehended across the
5

10
of privacy in any seized object. We also directed that the briefs
address the question of whether the government had preserved
an expectation-of-privacy issue for our review. In this regard
we note that inmates generally do not possess a legitimate
expectation of privacy, Hudson v. Palmer, 468 U.S. 517, 525-26,
104 S.Ct. 3194, 3200 (1984), and other courts of appeals have
held that prisoners do not re-acquire the right to such an
expectation when they escape from prison, United States v.
Lucas, 499 F.3d 769, 777 (8th Cir. 2007) (en banc); United

country from New Jersey where he was to surrender to start
serving his period of incarceration, he insists that he was not a
“fugitive” even though the District Court had issued a warrant
for his arrest when he did not surrender. Appellee’s
supplemental br. at 2-3. He cites a firearms-control statute that
defines a “fugitive from justice” as someone who “has fled from
any State to avoid prosecution.” 18 U.S.C. § 921(a)(15).
Donahue’s logic, it appears, is that he fled the consequences of
his prosecution (i.e., incarceration), rather than the prosecution
itself. But see, e.g., United States v. Bailey, 444 U.S. 394, 414
n.10, 100 S.Ct. 624, 636 n.10 (1980) (“[A]n escaped prisoner is,
by definition, a fugitive from justice.”). We do not comment on
whether his interpretation of that particular statute is relevant
because Donahue’s exact technical status as a fugitive does not
bear on our probable-cause inquiry. Regardless of what
circumstances result in an individual being regarded as a
fugitive under any particular statute, the ordinary meaning of the
word includes “[a] person who flees or escapes” and a “criminal
suspect . . . who . . . evades . . . imprisonment.” Black’s Law
Dictionary (9th ed. 2009) (defining “fugitive”). Consequently,
we will refer to Donahue as a fugitive.

11
States v. Roy, 734 F.2d 108, 111-12 (2d Cir. 1984), or when
they abscond after a mistaken release, United States v. Ward,
561 F.3d 414, 417-18 (5th Cir. 2009). See United States v.
Randolph, 210 F. Supp. 2d 586, 591 (E.D. Pa. 2002), aff'd, 80 F.
App’x 190 (3d Cir. 2003).

Although Donahue may have forfeited any expectation of
privacy that he arguably had in the Mustang or its contents after
he failed to surrender, we decline to address that possibility
because the government did not raise it in the District Court and
thus did not preserve it for our review. See Steagald v. United
States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1646-47 (1981)
(precluding government from arguing for the first time on
appeal that defendant lacked a reasonable expectation of
privacy); see also United States v. Joseph, 730 F.3d 336, 342 (3d
Cir. 2013). Rather, the government made the expectation-of-
privacy argument in the District Court that Donahue did not
have an expectation of privacy in the Mustang or its contents or
in the hotel room in the first place, a contention that, if accepted,
would have rendered a forfeiture argument moot as Donahue
would have had nothing to forfeit. The government, however,
has abandoned even that narrow contention on appeal.

Given that the government has not advanced, or at least
preserved for our review, any expectation-of-privacy issue on
this appeal, we limit our inquiry to the question of whether the
automobile exception authorized the government to search the
Mustang without a warrant.6 The automobile exception permits

6
The District Court declined to apply the inventory exception or
the inevitable discovery rule—conclusions that the government

12
vehicle searches without a warrant if there is “probable cause to
believe that the vehicle contains evidence of a crime.” United
States v. Salmon, 944 F.2d 1106, 1123 (3d Cir. 1991), abrogated
on other grounds by United States v. Caraballo-Rodriguez, 726
F.3d 418 (3d Cir. 2013) (en banc). The government bears the
burden of establishing the applicability of the exception, United
States v. Herrold, 962 F.2d 1131, 1143 (3d Cir. 1992), by a
preponderance of the evidence, United States v. Vasey, 834 F.2d
782, 785 (9th Cir. 1987).

Although “the scope of the warrantless search authorized
by [the automobile exception] is no broader and no narrower
than a magistrate could legitimately authorize by warrant,”

does not challenge on appeal. Donahue, 2013 WL 6080192, at
*7-11. In addition, although the government alluded to another,
similar exception in its brief in the District Court, it never fully
argued here or in that Court that it performed a valid search of
the car incident to Donahue’s arrest. Case No. 3:11-cr-00033,
Doc. No. 188 at 8. That justification permits vehicle searches
incident to arrest if it is “reasonable to believe evidence relevant
to the crime of arrest might be found.” Arizona v. Gant, 556
U.S. 332, 335, 129 S.Ct. 1710, 1714 (2009). The Gant incident-
to-arrest exception is both broader and narrower than the
automobile exception: it requires a lesser basis for a search than
a showing of probable cause, United States v. Vinton, 594 F.3d
14, 25 (D.C. Cir. 2010), but “does not extend to evidence of
other offenses,” United States v. Polanco, 634 F.3d 39, 42 (1st
Cir. 2011). Because of the limited scope of the government’s
arguments, we consider only one potentially relevant exception
to the search warrant requirement, the automobile exception.

13
United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173
(1982), the automobile exception includes two important
elements specific to that exception: First, “[i]f probable cause
justifies the search . . . , it justifies the search of every part of the
vehicle and its contents that may conceal the object of the
search.” Id., 102 S.Ct. at 2173. Second, probable cause does
not dissipate after the automobile is immobilized because the
exception does not include an exigency component. Maryland
v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 2014 (1999). As a
result, the government can search an impounded vehicle without
a warrant even though it has secured the vehicle against the loss
of evidence and it has the opportunity to obtain a warrant for the
search. See Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct.
3079, 3080-81 (1982); see also United States v. Johns, 469 U.S.
478, 486-87, 105 S.Ct. 881, 886 (1985) (extending the rule to
closed packages seized from vehicles).

The broad sweep of the automobile exception is of
controlling significance in this case because if we determine, as
in fact we do, that the government had probable cause to seize
and search the Mustang, two more conclusions will follow from
that determination. First, the government was justified in
opening the bag found in the Mustang’s trunk containing the
pistol. See, e.g., United States v. Alexander, 573 F.3d 465, 475
(7th Cir. 2009) (“[U]nder the automobile exception to the
warrant requirement, [the police officers] were authorized to
open the bag and seize the handgun.”). Second, the delay
between the time that the government seized the Mustang and
the time of the search that uncovered the weapon—five days
after the government impounded the vehicle—was immaterial.
See Johns, 469 U.S. at 487-88, 105 S.Ct. at 887 (holding that

14
warrantless search of containers seized from a vehicle already
impounded for three days “was reasonable and consistent with
our precedent involving searches of impounded vehicles”);
United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994)
(upholding warrantless search of a vehicle 38 days after it was
impounded); United States v. McHugh, 769 F.2d 860, 865-66
(1st Cir. 1985) (approving search seven days after truck’s
seizure because the Supreme Court declined to impose an
“arbitrary temporal restriction” on the automobile exception).7

As a related matter, our analysis does not distinguish
among the government’s searches starting with Archuleta’s
search, followed by Willeke’s search, and concluding with the
opening of the closed bags. We see nothing in the Supreme
Court’s jurisprudence to indicate that the automobile exception
may justify only a single search of a seized vehicle. To the
contrary, the Court has based its reasoning allowing warrantless
searches of vehicles in part on the diminished expectation of
privacy in a vehicle, and thus the Court’s reasoning supports the
conclusion that so long as the government maintains continuous
control over the vehicle it needs probable cause only for its
initial search and seizure and that subsequent searches should be
viewed as part of an ongoing process. United States v.
Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484 (1977) (“One
has a lesser expectation of privacy in a motor vehicle because its
function is transportation and it seldom serves as one’s residence
or as the repository of personal effects . . . . It travels public
thoroughfares where both its occupants and its contents are in

7
Donahue has not raised any chain-of-custody issue.

15
plain view.” (quotation marks and citation omitted)). The
degree of expectation of privacy does not expand during the
time that the government possesses the vehicle. Indeed, if
anything, the seizure may lessen it.

Thus, the validity of the search in this case depends
entirely on whether the government had probable cause when it
seized the Mustang to believe that it contained evidence of a
crime.8 The probable cause inquiry is “commonsense,”
“practical,” and “nontechnical;” it is based on the totality of the
circumstances and is judged by the standard of “reasonable and
prudent men.” Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct.
2317, 2328 (1983) (internal quotation marks and citations
omitted). We evaluate “the events which occurred leading up to
the . . . search, and then . . . [decide] whether these historical
facts, viewed from the standpoint of an objectively reasonable
police officer, amount to . . . probable cause.” Ornelas v. United

8
Contrary to the government’s suggestion, a showing that there
is probable cause to believe that a search will reveal evidence
refuting a potential affirmative defense does not, by itself,
authorize a search. In this regard, we point out that inasmuch as
the government before making an arrest and search based on the
presence of probable cause is not obligated to investigate
potential defenses, see, e.g., Acosta v. Ames Dep't Stores, Inc.,
386 F.3d 5, 11 (1st Cir. 2004), it should not be permitted to use
the possibility that those defenses may be available as a reason
to invade an individual’s right to privacy by making a search.
What matters for purposes of probable cause is the likelihood of
obtaining evidence of a crime.

16
States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62 (1996).

At bottom, “we deal with probabilities,” Gates, 462 U.S.
at 231, 103 S.Ct. at 2328. If there was a “fair probability that
contraband or evidence of a crime” would have been found,
there was probable cause for the search. Id. at 238, 103 S.Ct. at
2332. To that end, we conclude that it was reasonable to believe
that the Mustang contained items showing that Donahue
“knowingly” failed to surrender in violation of 18 U.S.C. §
3146(a)(2). After all, the government agents knew that Donahue
had failed to surrender as ordered, and Archuleta explained that,
based on his extensive experience with fugitives, they are likely
to have false identification documents, J.A. 109, which
commonly are found in places where items are “ready and
available . . . to gather up and leave quickly,” such as their cars,
id. 108-11.

The District Court took a different approach to the
probable cause question. It focused on Archuleta’s concession
at the suppression hearing that he searched the Mustang because
the marshals in Scranton wanted him to do so. This testimony
led the Court to suggest that Archuleta did not necessarily
believe he had probable cause for the search. Donahue, 2013
WL 6080192, at *7. The Court also concluded that the items in
plain view, such as maps and newspapers, which Archuleta
observed when he first looked into the Mustang, were not
contraband and thus their presence could not have formed the
basis for probable cause for a search of the vehicle. Id. Finally,
the Court reasoned that Donahue’s “crime was completed after
he failed to surrender for service of his sentence” and, “[a]s a
result, there was not a fair probability that a search of the Ford

17
Mustang would reveal contraband or evidence of a crime.” Id.

We reject each of these conclusions, and do so exercising
plenary review because the District Court did not ground its
conclusions on findings of disputed facts. See Ornelas, 517 U.S.
at 699, 116 S.Ct. at 1663; United States v. Harple, 202 F.3d 194,
196 (3d Cir. 1999). First, we point out that our probable cause
inquiry “is entirely objective,” Halsey v. Pfeiffer, 750 F.3d 273,
299 (3d Cir. 2014), and that while subjective belief may be
relevant in a probable cause inquiry to the extent that it reveals
facts material to a probable cause determination, Archuleta’s
testimony with respect to his beliefs was not particularly
enlightening in this regard. Furthermore, we find nothing in the
record to support a conclusion that Archuleta conceded he
lacked probable cause to search the Mustang; rather he testified
that the immediate reason he undertook the search was that he
was carrying out the instructions sent from Scranton and the
directive from his supervisor. But his statements about fugitives
possessing incriminating material is consistent with the
conclusion that he believed that he had probable cause for the
search. See J.A. 122 (“I did believe that there could be items in
the vehicle to show that he was a fugitive and certain contraband
could be in that vehicle, yes, sir.”). In any event, Archuleta’s
opinion as to whether he had probable cause for a search does
not matter because an officer might have probable cause to
make a search even if he believes to the contrary. See United
States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991) (“Just as a
subjective belief by the arresting officer would not establish
probable cause where none existed, a subjective belief by the
arresting officer cannot destroy probable cause where it
exists.”).

18
 We also reject the District Court’s suggestion that an
officer could establish that there was probable cause for a search
only if he believed that the search would reveal contraband.
Donahue, 2013 WL 6080192, at *7 (concluding that the items
that Archuleta observed in the Mustang were “not contraband”
and thus their presence could not support the belief that the
Mustang “contained contraband”). The courts in making Fourth
Amendment analyses long have rejected any distinction between
“evidence of a crime” and “contraband.” See Warden, Md.
Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 1647
(1967) (“Nothing in the language of the Fourth Amendment
supports the distinction between ‘mere evidence’ and
instrumentalities, fruits of crime, or contraband.”). And as we
have indicated throughout this opinion, the prevailing standard
for establishing probable cause refers interchangeably to
probable cause for the presence of both contraband and evidence
of a crime.

Finally, we reject any contention that the answer to the
question of whether a crime has been “completed” (as the
District Court suggested was the case here when Donahue did
not surrender as required) or was “continuous” could provide a
tool helpful in an assessment of whether there was probable
cause for a search. After all, many, if not most, crimes are
“completed” by the time of a lawful search during the
investigation of the crime, and frequently the perpetrator has
been identified before the search, but investigators nevertheless
make the search to uncover evidence useful in a prosecution.
The determination of the point at which the elements
constituting a crime can be said to have been completed is
simply not material to a court’s determination of whether there

19
was probable cause for a search in furtherance of the
investigation of the crime. Accordingly, though it is clear from
the record that the government had compelling evidence that
Donahue had committed the crime of failing to surrender before
its agents searched his vehicle, indeed even before its agents
arrested him, and such evidence might have lessened the need
for a search, the search was lawful.

VI. CONCLUSION

For the foregoing reasons, we will reverse the District
Court’s November 19, 2013 order suppressing evidence found in
the Ford Mustang. Because the government has not appealed
from the order to the extent that it suppressed evidence taken
from Donahue’s hotel room, that aspect of the Court’s order will
remain undisturbed. We will remand the case to the District
Court for further proceedings consistent with the opinion.

20