United States v. Lewis

Citation147 A.3d 236
Decision Date29 September 2016
Docket NumberNo. 13-CO-1456,13-CO-1456
Parties United States, Appellant, v. David D. Lewis, Appellee.
CourtCourt of Appeals of Columbia District

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 for the court by Associate Judge MCLEESE

, joined by GLICKMAN, FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

Dissenting opinion by Associate Judge BECKWITH

, joined by WASHINGTON, Chief Judge, and EASTERLY, Associate Judge, at page 251.

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 NW 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 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 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 (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 (2015) ; State v. Sykes , 279 Wis.2d 742, 695 N.W.2d 277, 282–87 (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 (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 probable 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 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 for the offense; and (e) the suspect's formal arrest for the offense follows quickly on the heels of the search.2

A.

We turn first to whether a Gant

evidence search may precede the arrest of the suspect. The Supreme Court did not decide that question in Gant. In Rawlings v. Kentucky , 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), however, the Supreme Court addressed the same question in connection with the search of a defendant's person incident to arrest, stating that [w]here the formal arrest follow[s] quickly on the heels of the challenged search of [a suspect's] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.” 448 U.S. at 111, 100 S.Ct. 2556. Although Rawlings refers to both “formal arrest” and “arrest,” id. the lower courts, including this court, have consistently understood the rule announced in Rawlings to apply without regard to any...

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