FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10233
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-00376-
JSW-3
OSHAN COOK,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
January 13, 2015—San Francisco, California
Filed August 13, 2015
Amended December 24, 2015
Before: Richard R. Clifton and Jacqueline H. Nguyen,
Circuit Judges and Jed S. Rakoff, * Senior District Judge.
*
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2 UNITED STATES V. COOK
Order;
Opinion by Judge Nguyen
SUMMARY **
Criminal Law
Affirming convictions for conspiracy to possess with
intent to distribute MDMA and possession with intent to
distribute MDMA and LSD, the panel held that a search of
the defendant’s backpack did not violate his Fourth
Amendment rights.
The panel held that the district court did not err in
denying the defendant’s motion to suppress evidence seized
from his backpack because the brief, cursory search of the
backpack for weapons was incident to a lawful arrest. In
addition, the district court did not abuse its discretion in
failing to hold an evidentiary hearing on the motion to
suppress.
The panel also held that any Confrontation Clause
violation in allowing law enforcement agents to testify about
an identification of the defendant as the drug supplier was
harmless.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. COOK 3
COUNSEL
David J. Pullman, San Rafael, California, for Defendant-
Appellant.
Owen P. Martikan (argued), Assistant United States
Attorney; Melinda Haag, United States Attorney; Barbara J.
Valliere, Chief, Appellate Division, United States
Attorney’s Office, San Francisco, California, for Plaintiff-
Appellee.
ORDER
The opinion filed on August 13, 2015 and published at
797 F.3d 713 is hereby withdrawn and replaced by the
amended opinion filed concurrently with this order. With
these amendments, Judges Clifton, Nguyen, and Rakoff
have voted to deny the petition for panel rehearing, Judges
Clifton and Nguyen have voted to deny the petition for
rehearing en banc, and Judge Rakoff has so recommended.
The full court has been advised of the petition for rehearing
en banc, and no judge requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petitions for
panel rehearing and rehearing en banc are denied. No
further petitions for panel rehearing or rehearing en banc will
be entertained.
OPINION
NGUYEN, Circuit Judge:
Oshan Cook appeals his convictions for conspiracy to
possess with intent to distribute MDMA (also known as
ecstasy or Molly) and possession with intent to distribute
4 UNITED STATES V. COOK
MDMA and LSD. Cook mainly challenges the denial of his
motions to suppress the evidence seized from his backpack,
arguing that the search violated his Fourth Amendment
rights. We conclude, however, that the brief, cursory search
of Cook’s backpack for weapons was valid incident to a
lawful arrest, and thus the district court properly denied
Cook’s motions. Because we also reject Cook’s remaining
challenges, we affirm.
I
A
Working with an informant, undercover agents from the
Drug Enforcement Administration arranged to buy MDMA
from Yuri Lambert and James Edmonds. On the morning of
April 22, 2010, about thirty minutes before the scheduled
sale, agents were surveilling Lambert’s house on 63rd Street
in Oakland, California, when they saw Cook carrying a
backpack into the house. The agents concluded that Cook
likely dropped something off while inside the house because,
when he left a short time later, his backpack appeared less
full and lighter. About fifteen minutes after Cook left the
house, Lambert and Edmonds also came out of the same
house and headed to the location where the drug deal was to
take place. After Edmonds showed undercover Special
Agent Jay Dial the MDMA that he intended to sell, both
Lambert and Edmonds were arrested. During a post-arrest
interview, Edmonds identified Cook as his supplier, and said
that he had been dealing drugs with Cook “on and off for
five years.”
The agents then took Edmonds back to Lambert’s house
on 63rd Street, where they found two firearms. At the
agents’ direction, Edmonds placed a monitored call to Cook.
When Edmonds told Cook that the sale had gone through,
Cook responded, “Hallelujah. Okay, I’ll see you soon.”
UNITED STATES V. COOK 5
About fifteen minutes later, Cook arrived at the 63rd Street
residence, and when he got out of his car, he wore the same
backpack that the agents had observed on him during their
surveillance. As Cook approached the front porch, the
agents ordered him to the ground at gunpoint. While they
were placing handcuffs on him, Task Force Officer Robert
Knight came onto the scene. By this time, a crowd had
gathered, and even though there were six law enforcement
agents at the scene—three near Cook and three by Cook’s
car—they were concerned that additional, unidentified
coconspirators or others might interfere if they continued to
attract attention. Thus, the agents wanted to move
immediately out of the area.
While Cook was still on the ground and within one or
two minutes of his arrest, Officer Knight picked up the
backpack, which was right next to Cook, and conducted a
twenty or thirty-second cursory search for weapons or
contraband. Finding no weapons, the agents quickly moved
Cook and the backpack to a more secluded restaurant
parking lot a few blocks away. There, Officer Knight and
Special Agent Dial did a more thorough search of the
backpack. During this second search, they found ziplock
bags containing MDMA, LSD, marijuana, two mobile
phones, and a laptop. The purity level of the MDMA found
in Cook’s backpack matched that of the MDMA seized from
Edmonds at the drug buy.
B
Cook was indicted for conspiracy to possess with intent
to distribute MDMA, possession with intent to distribute
MDMA, and possession with intent to distribute more than
10 grams of LSD, in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(C), 841(b)(1)(A)(v).
6 UNITED STATES V. COOK
Prior to trial, on September 9, 2011, Cook filed a motion
to suppress the evidence from his backpack. In support of
his motion, Cook submitted a declaration, stating that during
the few minutes that he was face down on the ground, he did
not see anyone open or search his backpack. In opposition,
the government submitted a declaration from Officer Knight,
stating that, while Cook was still on the ground, he
“immediately conducted a quick search of [the backpack] to
make sure that there were no destructive devices or other
items that might pose an immediate danger.” The
government also argued in its opposition papers that because
Cook was face down on the ground, he “was in no position
to have personal knowledge of when and how the search was
completed.” Cook filed a reply brief, but rather than dispute
that the initial search occurred, he conceded “that he [did]
not know when the search occurred.” Instead, Cook’s reply
brief focused only on his legal arguments for suppression of
the evidence.
On November 2, 2011, the district court issued a written
order stating that it was inclined to deny the motion, but
asking Cook to respond to the following questions: “Is the
Court correct that Defendant believes the motion can be
resolved without an evidentiary hearing? If not, what facts
does Defendant contend are in dispute?” The next day,
during a hearing on Cook’s motion, the court invited him to
answer the questions it had posed. Cook did not ask for an
evidentiary hearing, failed to dispute that the first search
occurred, and failed to identify any particular factual dispute.
Instead, he raised a new challenge that there was no probable
cause to arrest him. The court continued the hearing and
allowed Cook to file a supplemental brief addressing
probable cause. Cook later did so, but still did not identify a
factual dispute. On December 22, 2011, the district court
denied Cook’s motion without an evidentiary hearing.
UNITED STATES V. COOK 7
After Cook’s first trial ended in a mistrial, on August 30,
2012, he renewed his motion to suppress and, for the first
time, claimed that the initial search of his backpack did not
occur at all. Cook argued that inconsistencies between
Officer Knight’s and Special Agent Dial’s trial testimony
showed that the initial search was a “post-hoc invention.”
The district court, without holding an evidentiary hearing,
denied Cook’s motion. The court explained that it had the
opportunity during the trial to assess the credibility of the
testifying agents, and there was “no basis to discredit”
Officer Knight’s testimony that the first search occurred.
Following a second trial, the jury convicted Cook on
November 1, 2012 of conspiracy to possess with intent to
distribute and possession with intent to distribute illegal
narcotics. On March 6, 2013, Cook again renewed his
motion to suppress. This time, he focused on Special Agent
Dial’s admission that his testimony during the first trial was
incorrect. Special Agent Dial had testified that he was
present at the first search of Cook’s backpack, when in fact
he was only there during the second, more thorough search.
The district court again denied an evidentiary hearing,
because it concluded that it already had a sufficient basis to
evaluate the witnesses’ credibility, having heard their
testimony at two trials. It found that there was “no basis to
discredit [Special Agent Dial’s] testimony that he simply
made a mistake about his participation in the initial search of
Cook’s backpack.” The court denied Cook’s motion. This
appeal followed.
II
Cook argues that the first search violated his rights under
the Fourth Amendment. The government counters that the
search was incident to a lawful arrest, and thus fell within
that exception to the warrant requirement. As an initial
8 UNITED STATES V. COOK
matter, although the evidence Cook seeks to suppress was
found during the second search of his backpack, which
occurred at a nearby restaurant parking lot, Cook only
challenges the first search that occurred at the scene of his
arrest. This is because Cook recognizes that if that search
was valid, then the second warrantless search was permitted
“so long as [his backpack] remain[ed] in the legitimate
uninterrupted possession of the police.” United States v.
Burnette, 698 F.2d 1038, 1049 (9th Cir. 1983). We review
a denial of a motion to suppress evidence de novo. United
States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010).
A
A search incident to a lawful arrest is a well-established
exception to the Fourth Amendment’s warrant requirement.
See Arizona v. Gant, 556 U.S. 332, 338 (2009). This
exception allows an officer to search “the arrestee’s person
and the area ‘within his immediate control,’” defined as “the
area from within which he might gain possession of a
weapon or destructible evidence.” Chimel v. California, 395
U.S. 752, 763 (1969). As the Supreme Court explained in
Gant, the “immediate control” requirement “ensures that the
scope of a search incident to arrest is commensurate with its
purposes of protecting arresting officers and safeguarding
any evidence of the offense of arrest that an arrestee might
conceal or destroy.” 556 U.S. at 339. The Court in Gant
held that the officers’ search of Gant’s car was unreasonable
because, prior to the search, Gant and two other arrestees
were already handcuffed and locked inside separate police
UNITED STATES V. COOK 9
cars. Thus, “Gant clearly was not within reaching distance
of his car at the time of the search.” Id. at 344. 1
In evaluating the reasonableness of a search incident to
arrest, we have examined not only whether the area searched
was within the arrestee’s “immediate control,” but also
whether any event occurred after the arrest that rendered the
search unreasonable. Maddox, 614 F.3d at 1048. While
“[t]here is no fixed outer limit for the number of minutes that
may pass between an arrest and a valid, warrantless search,”
United States v. McLaughlin, 170 F.3d 889, 892 (9th Cir.
1999), we have said that the search must be “spatially and
temporally incident to the arrest,” United States v. Camou,
773 F.3d 932, 937 (9th Cir. 2014). See also United States v.
Smith, 389 F.3d 944, 951 (9th Cir. 2004) (per curiam)
(interpreting the temporal requirement to mean that the
search must be “roughly contemporaneous with the arrest”);
United States v. Monclavo-Cruz, 662 F.2d 1285, 1288 (9th
Cir. 1981) (holding that the search of the purse of an arrestee
“more than an hour after her arrest at the station house” was
not valid incident to arrest).
B
Cook argues that the initial search of his backpack was
not valid incident to arrest because he was handcuffed at the
time of the search, and thus there was no reasonable concern
for officer safety or evidence destruction.
We agree that Cook’s position at the time of the search—
face down on the ground with his hands cuffed behind his
1
We do not read Gant’s holding as limited only to automobile searches
because the Court tethered its rationale to the concerns articulated in
Chimel, which involved a search of an arrestee’s home. Gant, 556 U.S.
at 342-43. Neither party in this case contends otherwise.
10 UNITED STATES V. COOK
back—is a highly relevant fact in determining whether the
search was justified. Yet Cook’s argument ignores other
countervailing facts that we must also consider. The search,
both quick and cursory, was “spatially and temporally
incident to the arrest.” Camou, 773 F.3d at 937. It occurred
immediately after Officer Knight arrived on the scene, as
Cook was being taken into custody. Cook’s backpack was
right next to him. And, within twenty to thirty seconds, as
soon as Officer Knight determined that the backpack
contained no weapons, he immediately stopped the search.
The brief and limited nature of the search, its immediacy to
the time of arrest, and the location of the backpack ensured
that the search was “commensurate with its purposes of
protecting arresting officers and safeguarding any evidence
of the offense of arrest that [Cook] might conceal or
destroy.” Gant, 556 U.S. at 339.
Cook relies heavily on Gant, but the circumstances here
are entirely different. Unlike Gant, who was arrested for
driving on a suspended license, Cook was arrested for
serious felony drug offenses. Significantly, Gant was locked
inside a patrol car, while Cook’s backpack was easily within
“reaching distance.” Id. at 344. The fact that Cook was
already handcuffed is significant, but not dispositive. See
United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993)
(stating that “[a]lbeit difficult, it is by no means impossible
for a handcuffed person to obtain and use a weapon
concealed on his person or within lunge reach, and . . . like
any mechanical device, handcuffs can and do fail on
occasion”). We cannot say here that there was no reasonable
possibility that Cook could break free and reach for a
backpack next to him. Gant, 556 U.S. at 339.
Moreover, contrary to Cook’s claim, the agents’ safety
concerns were objectively reasonable. The agents had
reason to believe that Cook used the same backpack earlier
UNITED STATES V. COOK 11
in the day to transport drugs, and they had already recovered
two firearms from the house associated with Cook’s co-
conspirator. That Cook’s arrest took place in front of the
same house, and a crowd had gathered nearby, heightened
the agents’ reasonable fear that a bystander or additional
unidentified co-conspirator might intervene. Under the
totality of the circumstances, we conclude that the search of
Cook’s backpack was reasonable and valid incident to arrest.
See United States v. Robinson, 414 U.S. 218, 235 (1973)
(stating that an officer’s decision to search incident to arrest
“is necessarily a quick and ad hoc judgment” that need not
“be broken down in each instance into analysis of each step
of the search”). Therefore, the district court properly denied
his motions.
We note that under similar facts, our sister circuit
reached the same conclusion, in a case cited by both parties.
In United States v. Shakir, the Third Circuit found that a
search of a duffel bag, which Shakir had dropped at his feet
when he was arrested, was reasonable. 616 F.3d 315, 321
(3d Cir. 2010). Shakir’s hands were already cuffed, and two
officers were holding his arms, when another officer bent
down and searched the bag. Id. at 317. The Third Circuit
considered the circumstances of the arrest and search,
including the location of the arrest in a hotel lobby with
many people around, the fact that Shakir’s duffel bag was
right at his feet, and the officers’ concern that accomplices
were nearby. Id. at 319. Upholding the search, the Shakir
court concluded that “there remained a sufficient possibility
that Shakir could access a weapon in his bag.” Id. at 321.
Much of the same analysis, as we discussed, applies here.
As Cook points out, there are factual differences in his case.
For example, Shakir was standing up, and his large size
made it initially difficult to handcuff him, whereas Cook’s
build is slight and he was face down on the ground. None of
12 UNITED STATES V. COOK
the factual distinctions relied on by Cook, however, are
sufficient to alter our analysis.
III
We next turn to Cook’s claim that the district court
abused its discretion in failing to hold an evidentiary hearing
to determine whether the initial search of his backpack
actually occurred.
“An evidentiary hearing on a motion to suppress need be
held only when the moving papers allege facts with
sufficient definiteness, clarity, and specificity to enable the
trial court to conclude that contested issues of fact exist.”
United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000);
see also United States v. Batiste, 868 F.2d 1089, 1093 (9th
Cir. 1989) (stating that the district court was not required to
hold an evidentiary hearing on the defendant’s motion to
suppress where the defendant failed to dispute any material
fact in the government’s proffer). We review the district
court’s denial of an evidentiary hearing for abuse of
discretion. See United States v. Hoang, 486 F.3d 1156, 1163
(9th Cir. 2007).
Cook’s first motion to suppress failed to raise a material
factual dispute. The district court nevertheless invited Cook
to clarify by directing him to confirm that “the motion can
be resolved without an evidentiary hearing” and to identify
facts that Cook “contend[s] are in dispute.” In response,
Cook neither asked for an evidentiary hearing nor identified
a single disputed fact. He instead focused on a new legal
argument that his arrest was not supported by probable
cause. In short, because Cook failed to “allege facts with
sufficient definiteness, clarity, and specificity to enable the
trial court to conclude that contested issues of fact exist,” the
court did not abuse its discretion in failing to hold an
evidentiary hearing. Howell, 231 F.3d at 620.
UNITED STATES V. COOK 13
Cook now contends that he in fact identified a factual
dispute by arguing below that Officer Knight’s first search
was “manufactured for the purpose of legitimatizing an
otherwise unlawful search.” What Cook fails to
acknowledge, however, is that he raised this claim only after
his first trial. By that point, the district court had already
heard trial testimony from the law enforcement witnesses—
Officer Knight and Special Agent Dial—who Cook would
have called in support of his motion. Because Cook had
already cross-examined these witnesses’ accounts of the first
search, the district court could use “[t]estimony at trial . . . to
sustain the denial of a motion to suppress evidence.” United
States v. Sanford, 673 F.2d 1070, 1072 (9th Cir. 1982). This
is especially true where, as here, Cook never proffered in his
renewed motions that, at an evidentiary hearing, he would
testify to an alternate version of the moments after his arrest.
United States v. Hernandez-Acuna, 498 F.3d 942, 945 (9th
Cir. 2007) (holding that even though “trials serve a different
function from evidentiary hearings,” a district court could
dispense with an evidentiary hearing on a motion to suppress
in light of the defendant’s opportunity to cross-examine at
trial the only witnesses who would have testified at a
suppression hearing before the court). As the district court
stated, it had the opportunity to observe the demeanor of the
witnesses, and to assess their testimony and credibility
during two trials. Thus, the district court did not abuse its
discretion in determining that no evidentiary hearing was
necessary.
IV
Finally, Cook argues that his rights under the Sixth
Amendment’s Confrontation Clause were violated because
the agents were allowed to testify about Edmonds’s
identification of him as the supplier, even though Edmonds
was not a trial witness. We need not decide whether the
14 UNITED STATES V. COOK
district court erred because, even if it did, any error was
harmless. The evidence implicating Cook in the conspiracy
as the supplier was compelling. Shortly before the drug buy,
the agents saw Cook appear to drop something off from his
backpack at Lambert’s house. After Edmonds was arrested,
he placed a monitored phone call to Cook, who expressed
his satisfaction that the deal had gone through. Cook then
came to Lambert’s house with the same backpack that he had
carried earlier, and the backpack contained MDMA of the
same purity as the MDMA that Edmonds had offered to the
agents. Thus, any error in admitting Edmonds’s
identification of Cook as his supplier was “harmless beyond
a reasonable doubt.” United States v. Morales, 720 F.3d
1194, 1199 (9th Cir. 2013).
***
The district court properly denied Cook’s motions to
suppress because the search of his backpack was valid
incident to arrest. We further conclude that the district
court’s failure to hold an evidentiary hearing was not an
abuse of discretion, and any error in the court’s evidentiary
rulings was harmless beyond a reasonable doubt.
AFFIRMED.