Players: Chief Judge Washington, Associate
Judges Glickman, Fisher, Blackburne-Rigsby, Thompson, Beckwith, Easterly, and
McLeese. Majority opinion by Judge
McLeese, joined by Judges Glickman, Fisher, Blackburne-Rigsby, Thompson, and
McLeese. Dissent by Judge Beckwith,
joined by Chief Judge Washington and Judge Easterly. PDS for Mr. Lewis. Trial Judge: Robert I. Richter.
Facts: Officer Michael Alto followed David
Lewis’s car to a parking spot in Northwest Washington, D.C., after noting a broken
headlight and determining that Mr. Lewis’s license was suspended. When Mr. Lewis pulled into the spot, Officer
Alto pulled up and asked for Mr. Lewis’s license and registration. Mr. Lewis opened the car door, allowing
Officer Alto to see a half-empty bottle of Patrón tequila in the center
console. Mr. Lewis’s passenger, Brittney
Gibbs, said that the bottle was hers.
Ms. Gibbs brought the bottle to Officer Alto at the officer’s
request. Officer Alto then placed Mr.
Lewis in handcuffs. Neither Mr. Lewis
nor Ms. Gibbs smelled of alcohol.
When
Officer Brown arrived, Officer Alto instructed her to search the car. The officers later testified that their
purpose was to uncover further proof that an occupant possessed an open
container of alcohol and to ensure that the car was contraband- and alcohol-free,
in case they let Ms. Gibbs drive it away.
When Officer Brown opened the driver-side door, she smelled marijuana
and found a cup containing an alcohol-smelling liquid on the front passenger
seat. Ms. Gibbs said that the cup was
hers. Officer Brown also found a bag in
the back seat that contained a loaded handgun and a box of ammunition. Officer Brown then placed Ms. Gibbs under
arrest.
Ms. Gibbs
was charged with possessing the open container of alcohol and the marijuana later
found on her person. Mr. Lewis was
charged with carrying a pistol without a license, possession of an unregistered
firearm and ammunition, and operating a vehicle with a suspended license. The trial court suppressed the gun,
ammunition, and marijuana, finding the search of Mr. Lewis’s car unreasonable.
Issue: Whether the search of Mr. Lewis’s car
was a lawful search incident to Ms. Gibbs’s arrest, even though the police did not
decide to arrest her until after the search was complete.
Holding: Yes. Under Arizona v. Gant, 556 U.S. 332 (2009), the search of a car for
evidence is lawful if: (a) the police have probable cause to arrest for an
offense; (b) the suspect recently occupied a vehicle; (c) the police have
reasonable, articulable suspicion to believe that the vehicle contains evidence
of the offense; (d) at the time of the search, the police have not released the
suspect or issued the suspect a citation; and (e) the suspect’s formal arrest
follows quickly on the heels of the search.
A Gant search may be lawful even if it
precedes arrest. In Rawlings v. Kentucky, the Supreme Court said “[w]here formal arrest
follow[s] quickly on the heels of a challenged search of [a supect’s] person,
we do not believe it particularly important that the search preceded the arrest
rather than vice versa.” 448 U.S. 98,
111 (1980). Lower courts have applied
this statement broadly, and it is now “deeply entrenched in the law.” Even before Rawlings, D.C. adopted a rule whereby search or seizure could
precede arrest, provided the officer already had probable cause to arrest. See
Waters v. United States, 311 A.2d
835, 836 (D.C. 1973) (citing Bailey v.
United States, 389 F.2d 305, 207 (1967)).
Mr.
Lewis’s proposal to limit Gant and Rawlings to searches conducted when an
arrest is already under way is foreclosed by Supreme Court cases that prohibit
inquiry into an officer’s subjective intent.
The legality of a Gant search
must depend on objective circumstances, not whether an officer subjectively
intends to arrest. Knowles v. Iowa, 525 U.S. 113 (1998) does not contradict this reasoning,
as it relied on objective circumstances — (1) the issuance of a pre-search citation
and (2) the fact that no further evidence of speeding could have been found in
Knowles’s car.
Of Note:
Under the
rule announced in this opinion, police wield great discretion to search a car
where they have probable cause to believe a recent occupant has committed an
arrestable offense. Advocates should therefore
be mindful of codified restrictions on the power to arrest, which can change
quickly. See, e.g., D.C. Code 23-581.
While the Court finds that subjective intent cannot be relevant to the
validity of a Gant search, see Slip Op. at 16-18, courts have
found subjective intent relevant to other Fourth
Amendment inquiries—for instance, whether an officer has acted in “flagrant
disregard” for the limits of a search warrant; see, e.g., United States v. Heldt, 668 F.2d 1238, 1268 (D.C. Cir. 1981) (per curiam), cert. denied,
456 U.S. 926 (1982); United States v. Rettig, 589 F.2d 418, 423 (9th
Cir. 1978) (Kennedy, J.); State v. Valenzuela, 536 A.2d 1252, 1267
(1987) (Souter, J.), cert. denied, 485 U.S. 1008 (1988); and whether a
false statement in a warrant affidavit was made intentionally or with reckless
disregard for truth under Franks v. Delaware, 438 U.S. 154 (1978); see,
e.g., Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (1997).
As the opinion recognizes, motive to search remains a factor in evaluating the
legality of administrative and special needs searches. See Slip. Op. at 16-17. Advocates should continue to insist upon the relevance
of motive and/or subjective intent in these circumstances. WC
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