United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2004 Decided January 18, 2005
No. 04-3008
UNITED STATES OF AMERICA,
APPELLEE
v.
DARRELL HEWLETT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00139-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Susan A. Nellor, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher and Thomas J. Tourish, Jr.,
Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Defendant Darrell Hewlett
contends that the district court should have granted his motion
to suppress a firearm and ammunition on the ground that the
evidence was seized from him in the course of an unlawful
arrest. Because we conclude that Hewlett’s arrest was lawful,
we reject his contention and affirm his conviction.
I
In April 2002, FBI Special Agent Kevin Ashby received a
tip from a reliable informant that Hewlett was a fugitive who
was wanted for murder in Prince George’s County, Maryland.
Ashby ran Hewlett’s name through the National Crime
Information Center database, which confirmed the existence of
an outstanding arrest warrant for Hewlett. He then notified the
FBI office with jurisdiction over Prince George’s County.
Approximately eleven months later, on March 13, 2003, the
same informant called Ashby to tell him that Hewlett was, at
that moment, eating lunch at a McDonald’s restaurant near the
MCI Center in downtown Washington, D.C. Ashby and his
partner, Special Agent Robert Lockhart, drove from their
location on South Capitol Street, S.E., to the restaurant. Along
the way, they picked up two Metropolitan Police Department
(MPD) officers at MPD headquarters. The trip from MPD
headquarters to the McDonald’s took five to ten minutes.1 The
agents did not attempt to confirm the continued validity of the
warrant while they were en route.
When they arrived at the restaurant, Ashby and Lockhart
approached Hewlett, handcuffed him, and told him that he was
under arrest. Ashby then frisked Hewlett, discovering a loaded,
1
The record does not indicate how long it took Ashby and
Lockhart to drive from South Capitol Street to MPD headquarters.
3
9mm SIG-Sauer pistol in the front waistband of his pants and a
loaded ammunition magazine in his pocket. After Ashby
arrested Hewlett, the police officers called their dispatcher, who
checked and confirmed that the Prince George’s County arrest
warrant was still outstanding.
Hewlett was charged with unlawful possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). He moved to suppress the gun and ammunition
seized by Ashby on the ground that the information known to
the arresting officers was “insufficient to establish probable
cause to arrest the defendant.” Mot. to Suppress Physical
Evidence 3. The district court denied the motion, finding that
Ashby’s knowledge of the Prince George’s County murder
warrant gave him probable cause to arrest Hewlett. After losing
his motion, Hewlett entered a conditional guilty plea pursuant to
Federal Rule of Criminal Procedure 11(a)(2), reserving his right
to take this appeal.
On appeal, Hewlett raises two challenges to the denial of his
motion to suppress. We consider them in Parts II and III below.
II
In Chimel v. California, the Supreme Court held that, in the
course of making a lawful arrest, a police officer may “search
the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his
escape.” 395 U.S. 752, 763 (1969); see United States v.
Robinson, 414 U.S. 218 (1973). Hewlett’s first contention is
that the search that yielded the gun and ammunition was
unlawful because the arrest itself was unlawful. The arrest was
unlawful, he argues, because the government never proved that
the Prince George’s County arrest warrant was supported by
probable cause to believe that Hewlett had committed a crime.
4
He cites United States v. Hensley, 469 U.S. 221 (1985), and
Whiteley v. Warden, 401 U.S. 560 (1971), for the proposition
that “when evidence is uncovered during a search incident to
arrest in reliance” on an arrest warrant procured by other
officers, the constitutionality of the search “turns on whether the
officers” who obtained the warrant “possessed probable cause
to make the arrest.” Hensley, 469 U.S. at 231; see Whiteley, 401
U.S. at 568.
The government responds that Hewlett waived the argument
that the warrant was unsupported by probable cause when he
failed to present it to the district court. We agree. Rule
12(b)(3)(C) of the Federal Rules of Criminal Procedure requires
a party to make any motions to suppress evidence in advance of
trial, and Rule 12(e) provides that the failure to make “any Rule
12(b)(3) defense, objection, or request” by the pretrial deadline
constitutes a waiver. We have held that, “while a pretrial
motion need not state explicitly the grounds upon which a
motion is made, it must contain facts and arguments that make
clear the basis of defendant’s objections.” United States v.
Mitchell, 951 F.2d 1291, 1296 (D.C. Cir. 1991) (internal
quotation marks omitted).
In Mitchell, the defendant argued on appeal that the car
search that yielded evidence against him was invalid because it
was conducted without a warrant. The defendant had failed to
make that argument in his motion to suppress, contending
instead that the search was invalid because the police lacked
probable cause. Mitchell, 951 F.2d at 1297. Since neither
Mitchell’s motion to suppress nor the record of the suppression
hearing contained “any discussion of whether a warrant was
necessary,” we concluded that he had waived the argument
under Rule 12. Id.
5
Mitchell governs this case. Hewlett’s motion to suppress
did not suggest, much less “make clear,” id. at 1296, that he was
objecting to the admission of the evidence on the ground that the
Prince George’s County warrant was unsupported by probable
cause. Rather, he argued exclusively that the arresting officers
themselves had neither probable cause for an arrest nor
reasonable suspicion for a Terry 2 stop, focusing in particular on
the officers’ failure to reconfirm the status of the warrant before
making the arrest. See Mot. at 3, 9.
Hewlett disputes the conclusion that he waived his
challenge to the Prince George’s County warrant, noting that his
suppression motion contained citations to both United States v.
Hensley and Whiteley v. Warden. But while the cases were
there, the proposition for which they were cited was different
from that urged here. See Mot. at 5-6 (citing Hensley and
Whiteley for the proposition that “[t]he police may rely on
hearsay information concerning past conduct in making stops”
(emphasis in original)). Because Hewlett never suggested that
there was any flaw in the support for the warrant -- indeed, even
on appeal he does not say in what manner it was deficient -- the
district judge would have to have been a mind reader to deduce
that Hewlett was citing Hensley and Whiteley to advance such
an argument. Although we expect many things of our district
judges, telepathic powers are not among them.
Moreover, Hewlett’s appellate brief effectively concedes
that Hewlett’s trial attorney did not have in mind a challenge to
the validity of the warrant in the first place, because he did not
“recogniz[e]” that, under Whiteley, the validity of the arrest
could turn on whether there was probable cause to support the
warrant. Reply Br. at 1-2. Perhaps that was the reason trial
counsel did not attack the warrant -- or perhaps it was because
2
See Terry v. Ohio, 392 U.S. 1 (1968).
6
he had no basis for doing so. In either event, the challenge was
not made in the district court and is therefore waived.
III
Hewlett’s second contention is that his arrest was invalid
because the arresting officers lacked probable cause to believe
he had committed a crime. Hewlett did make this argument in
his suppression motion, see Mot. at 3, and he therefore properly
preserved it for appeal. But because he waived his challenge to
the validity of the Prince George’s County warrant, Hewlett is
limited to arguing that his arrest was unlawful notwithstanding
the validity of the warrant. Hewlett cites no case (and we have
found none) in which a court has concluded that an arrest lacked
probable cause despite the existence of a valid warrant.
An arrest warrant may be issued only if “the judicial officer
issuing such a warrant [is] supplied with sufficient information
to support an independent judgment that probable cause exists
for the warrant.” Whiteley, 401 U.S. at 564. Police officers who
arrest a suspect based on a warrant that they did not themselves
seek “are entitled to assume that the officers” who did obtain the
warrant “offered the magistrate the information requisite to
support an independent judicial assessment of probable cause.”
Id. at 568; see Hensley, 469 U.S. at 231-32. It is only “[w]here
. . . the contrary turns out to be true” that a Fourth Amendment
violation occurs. Whiteley, 401 U.S. at 568.3
3
In Arizona v. Evans, the Supreme Court stated that “Whiteley
clearly retains relevance in determining whether police officers have
violated the Fourth Amendment.” 514 U.S. 1, 13 (1995). The Court
noted, however, that “a Fourth Amendment violation” is not
necessarily “synonymous with application of the exclusionary rule to
evidence secured incident to that violation.” Id. (citing, e.g., United
States v. Leon, 468 U.S. 897 (1984)).
7
Despite the (assumed) validity of the warrant in this case,
Hewlett contends on appeal -- as he did in the district court --
that Agent Ashby and the other arresting officers lacked
probable cause because eleven months had passed since Ashby
confirmed the existence of the warrant. See Mot. at 3
(contending that “the failure to [re]confirm the existence of the
warrant . . . deprived the police of probable cause”). During that
time, Hewlett argues, the warrant could have been quashed,
withdrawn, or executed.4 Those possibilities, he insists,
diminished the original support for the belief that he had
committed a crime (or at least a crime for which he had not yet
been arrested, punished, or cleared).
Perhaps they did. But under the circumstances of this case,
we cannot conclude that the passage of eleven months so
diminished that support as to reduce it below the level of
probable cause.5 The nature of the charge (murder) and the
relative brevity of the elapsed time period eliminate some
possibilities that might otherwise have been relevant. For
example, it was quite unlikely that Hewlett already had been
4
Although the Maryland Code requires that a search warrant be
executed within a specified number of days after its issuance, M . D
CODE ANN., CRIMINAL PROCEDURE § 1-203(a)(4) (2004) (no more
than 15 days), the Code does not require execution of an arrest warrant
within any specific time period, see MD. COD E ANN . , COURTS AND
J UDICIAL PROCEEDINGS § 2-107 (2004); MD. CODE ANN., CRIMINAL
PROCEDURE § 2-103 (2004). The same is true of the Federal Rules.
Compare FED. R. CRIM. P. 41(e)(2)(A) (requiring execution of search
warrants within 10 days), with FED. R. CRIM . P. 4(c) (specifying no
time period for execution of arrest warrants).
5
Because the government does not dispute that the passage of
some length of time without reconfirmation of the warrant’s existence
could have invalidated the arrest, we assume without deciding that to
be so.
8
convicted and served his time, or had been tried and acquitted,
in just eleven months. It was also relatively unlikely that he had
been arrested and released on bond, given the nature of the
charge against him. Nor could the warrant have been quashed
on statute of limitations grounds, as Maryland has no statute of
limitations for murder. See Greco v. State, 499 A.2d 209, 213
(Md. Ct. App. 1985). And while it remained possible that the
warrant had been quashed or withdrawn on other grounds, the
implication of the informant’s tip was to the contrary. It was
thus reasonable for the arresting officers to believe that the
warrant, and the finding of probable cause that it evidenced,
remained valid in March 2003. Accordingly, Hewlett’s arrest
and the search incident thereto were lawful.
IV
We conclude that Hewlett’s arrest was lawful, and therefore
affirm the district court’s denial of his motion to suppress the
evidence seized from him incident to that arrest. The judgment
of conviction is
Affirmed.