147 A.3d 236 (D.C. 2016), 13-CO-1456, United States v. Lewis

Docket Nº:13-CO-1456
Citation:147 A.3d 236
Opinion Judge:Roy W. McLeese, Associate Judge
Party Name:UNITED STATES, APPELLANT, v. DAVID D. LEWIS, APPELLEE
Attorney:David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellant. Joshua Deahl, Public Defender Service, wi...
Judge Panel:Before WASHINGTON, Chief Judge, and GLICKMAN, FISHER, BLACKBURNE-RIGSBY, THOMPSON, BECKWITH, EASTERLY, and MCLEESE, Associate Judges. Corinne Beckwith, Associate Judge, with whom Washington, Chief Judge, and Easterly, Associate Judge, join, dissenting:
Case Date:September 29, 2016
Court:Court of Appeals of Columbia District
 
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147 A.3d 236 (D.C. 2016)

UNITED STATES, APPELLANT,

v.

DAVID D. LEWIS, APPELLEE

No. 13-CO-1456

Court of Appeals of Columbia District

September 29, 2016

         Argued En Banc June 30, 2015

          Appeal from the Superior Court of the District of Columbia. (CF2-10190-13). (Hon. Robert I. Richter, Trial Judge).

         David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellant.

         Joshua Deahl, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellee.

         Before WASHINGTON, Chief Judge, and GLICKMAN, FISHER, BLACKBURNE-RIGSBY, THOMPSON, BECKWITH, EASTERLY, and MCLEESE, Associate Judges.

          OPINION

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         Roy W. McLeese, Associate Judge

         The United States seeks review of the trial court's pretrial order suppressing evidence as fruit of an unlawful search under the Fourth Amendment. D.C. Code § 23-104 (a)(1) (2012 Repl.). We reverse and remand for further proceedings.

         I.

         The evidence presented at the suppression hearing indicated the following. At approximately 2 a.m. on June 16, 2013, United States Park Police Officer Michael Alto was driving on Ingraham Street N.W. when he saw appellee David Lewis driving a car with a non-functioning headlight. While following the car, Officer Alto determined that the car was registered to Mr. Lewis and that Mr. Lewis had a suspended license. Mr. Lewis drove a couple of blocks, pulled over into a parking spot, and

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started to get out of the car. Officer Alto pulled up and asked Mr. Lewis for his license and registration. Mr. Lewis opened the car door, enabling Officer Alto to see an open bottle of Patrón tequila in the center-console cup holder. The bottle was half full. Mr. Lewis's passenger, Brittney Gibbs, said that the bottle was hers. Officer Alto told Ms. Gibbs to bring him the bottle, which Ms. Gibbs did by walking around the car and handing the bottle to Officer Alto.

         After confirming that Mr. Lewis's license had been suspended, Officer Alto put Mr. Lewis in handcuffs. Officer Alto did not smell any alcohol coming from Mr. Lewis or Ms. Gibbs. A second officer, Officer Brown, arrived on the scene, and Officer Alto asked her to search the car for additional open containers of alcohol. In Officer Alto's experience, " the majority of times when there is a tequila or liquor type of beverage in a vehicle, they'll be drinking through cups." Similarly, in Officer Brown's experience, people very rarely drink directly out of Patrón bottles and instead usually use cups. The officers decided to search the car, both for additional evidence of the offense of possession of an open container of alcohol (POCA) and because it was possible that Ms. Gibbs could have been permitted to drive the car away afterward, and the officers therefore wanted to make sure that there was no additional alcohol or other contraband in the vehicle.

         At the time Officer Brown arrived, Ms. Gibbs was outside the vehicle, saying that she needed to go to the bathroom. Officer Brown told Ms. Gibbs that she could not leave. Officer Brown opened the driver-side door and smelled marijuana. Officer Brown found a cup containing liquid that smelled like alcohol on the floor of the front passenger seat, and Ms. Gibbs said that the cup was hers. Officer Brown also found a loaded handgun and a box of ammunition in a bag on the back seat. Finally, Officer Brown found a cigarette containing a green plant-like substance in the passenger-side door.

         According to Officer Brown, Ms. Gibbs was not under arrest at the time the search of the car began. Once Officer Brown found the gun, she placed Ms. Gibbs in handcuffs. A subsequent search revealed a bag of marijuana in Ms. Gibbs's bra. Ms. Gibbs was arrested for POCA and possession of marijuana. Mr. Lewis was arrested for carrying a pistol without a license, possession of an unregistered firearm, possession of unregistered ammunition, and operating a vehicle with a suspended license.

         The trial court granted Mr. Lewis's motion to suppress evidence of the gun, the ammunition, and the marijuana, concluding that the officers did not have reasonable, articulable suspicion to search the vehicle for evidence of POCA. A division of this court concluded to the contrary that the officers had reasonable, articulable suspicion that there was evidence of POCA in the car. United States v. Nash, 100 A.3d 157, 164-65 (D.C. 2014).[1] The division further concluded that the search of the car

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was lawful as incident to Ms. Gibbs's arrest, even though the officers did not place Ms. Gibbs under arrest until after the search and it was not clear whether the officers had at the time of the search intended to arrest Ms. Gibbs. Id. at 165-68. The en banc court granted rehearing limited to the question whether the search was lawful as incident to Ms. Gibbs's arrest. United States v. Lewis, 107 A.3d 603 (D.C. 2015) (en banc).

         II.

          When reviewing a trial court's denial of a motion to suppress, we " view the evidence in the light most favorable to the prevailing party." Bennett v. United States, 26 A.3d 745, 751 (D.C. 2011) (internal quotation marks omitted). We draw all reasonable inferences in favor of upholding the trial court's ruling. Milline v. United States, 856 A.2d 616, 618 (D.C. 2004). We review the trial court's legal conclusions de novo. United States v. Taylor, 49 A.3d 818, 819 (D.C. 2012).

          " A search conducted without a warrant is per se unreasonable under the Fourth Amendment unless it falls within a few specific and well-established exceptions." Taylor, 49 A.3d at 821 (internal quotation marks omitted). Under one such exception, police officers may conduct a warrantless search of a vehicle, incident to an arrest, if they have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The issue before this court en banc is whether such a search, which we will refer to as a Gant evidence search, is lawful if (a) the search precedes the arrest for the offense at issue; and (b) it is unclear whether the officers intended to arrest the suspect before conducting the search. Although the issue has not yet arisen with much frequency, as far as we are aware every court to have considered the issue has upheld the validity of such searches. See, e.g., State v. Fizovic, 770 S.E.2d 717, 720-22 (N.C. Ct.App. 2015) ( Gant evidence search of suspect's car was lawful even though suspect was not arrested until after search and officer did not intend to arrest at time of search). The same issue has arisen in the context of other types of search incident to arrest, and the overwhelming weight of authority upholds the legality of such searches even when conducted before an arrest and in the absence of evidence that the officers subjectively intended to arrest the defendant at the time of the search. See, e.g., State v. J.J., 143 So.3d 1050, 1052 (Fla.Dist.Ct.App. 2014) (per curiam) (upholding search as lawful incident to arrest where search preceded arrest and where officer explained search as based on officer safety; no indication that officer intended to arrest at time of search); People v. Nguyen, 305 Mich.App. 740, 854 N.W.2d 223, 232-34 (Mich.Ct.App. 2014) (police lawfully searched suspect's person incident to arrest, even though search preceded arrest and officers did not believe they had probable cause to arrest at time of search), appeal denied, 497 Mich. 1035, 863 N.W.2d 327 (Mich. 2015); State v. Sykes, 2005 WI 48, 279 Wis.2d 742, 695 N.W.2d 277, 282-87 (Wis. 2005); Moffitt v. State, 817 N.E.2d 239, 246 (Ind.Ct.App. 2004); United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (" In order to be a legitimate ‗ search incident to arrest,' the search need not take place after the arrest. A warrantless search preceding an arrest is a legitimate ‗ search incident to arrest' as long as (1) a legitimate basis for the arrest existed before the search, and (2) the arrest followed shortly after the search. Whether or not the officer intended to actually arrest the defendant at the time of the search is immaterial to this two-part inquiry." ) (citations omitted). But see People v. Reid, 24 N.Y.3d 615, 2 N.Y.S.3d 409, 26 N.E.3d 237, 239-40 (N.Y. 2014) (search of suspect's person was not lawful incident to arrest because, at time of search, suspect had not been arrested and officer had no intent to arrest suspect).

         We hold that a Gant evidence search is lawful if (a) the police have prob

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able cause to arrest the suspect for an offense; (b) the suspect recently occupied a vehicle; (c) the police have reasonable, articulable suspicion to believe that...

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