U.S. v. Lewis

• Citation: 183 F.3d 791
• Decision Date: 09 March 1999
• Docket Number: No. 98-3856,98-3856
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. TIMOTHY JOHN LEWIS, APPELLANT. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 791

183 F.3d 791 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. TIMOTHY JOHN LEWIS, APPELLANT.

No. 98-3856

U.S. Court of Appeals, Eighth Circuit

Submitted: March 9, 1999

July 15, 1999

Rehearing and Rehearing En Banc Denied Aug. 19, 1999.^*

Appeal from the United States District Court for the District of Minnesota.

Before Beam and Heaney, Circuit Judges, and Goldberg, ¹ Judge of the United States Court of International Trade.

Beam, Circuit Judge.

Timothy John Lewis was charged with and convicted by a jury of possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). He appeals the district court's² denial of his motion to suppress evidence found during a search incident to his arrest on grounds that the arrest was unlawful. We affirm.

I. BACKGROUND

Our recitation of the facts is derived primarily from the magistrate Judge's findings in a report and recommendation prepared after a hearing on Lewis's motion to suppress. On April 9, 1998, officers Jeffrey Jindra and Jeffrey Binfet of the Minneapolis Police Department responded to a citizen's complaint of public drinking at a residential address. The officers arrived at the address in an unmarked squad car and wearing Minneapolis Police Raid T-shirts. Upon their arrival, the officers observed several people gathered in the front yard of the house. In addition, there were three males sitting in a car parked in front of the residence. Lewis stood on the curb by the car. He was talking to the occupants in the car and was drinking from what Officer Jindra identified as an open bottle of malt liquor.

The officers parked their vehicle and approached Lewis. According to Officer Jindra's testimony at the hearing, Lewis handed the malt liquor to a woman standing beside him, started walking backwards, and put his right hand into his right pants' pocket. He had a very nervous look and his eyes were darting around. Officer Jindra then took two steps forward and told Lewis to take his hand out his pocket. He then handcuffed Lewis and placed him under arrest for loitering with an open bottle in violation of a Minneapolis ordinance.

After arresting Lewis, Officer Jindra patted him down whereupon he felt a lump in the same pocket where Lewis had placed his hand. Officer Jindra reached into the pocket and pulled out a one ounce rock of what appeared to him to be crack cocaine. The officers then called for additional back up. More officers arrived at the scene and Lewis was placed in a squad car and taken to a local police station. At the station, Officer Benfit and Officer Jindra each interviewed Lewis. An hour after Lewis's arrest, a search warrant was executed at the address which Lewis had given as his residence. Additional evidence was seized at that location.

Lewis was indicted for possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). He moved to suppress: (1) the evidence obtained during the search incident to his arrest; (2) his statements and admissions to the police; and (3) the evidence from the search of his residence. The magistrate Judge³ recommended that all the motions be denied. Specifically, with regards to the motion to suppress the evidence obtained from the search incident to Lewis's arrest, the magistrate Judge found that because the officers observed Lewis drinking from the bottle, he had been lawfully arrested under Minneapolis ordinances 364.40 and 364.45 for loitering on the curb of the street with an open bottle of malt liquor. ⁴ Therefore the Judge concluded, the search of Lewis's person was valid as a search incident to a lawful arrest and any evidence obtained as a result thereof was admissible.

The district court, after conducting a de novo review of the record, adopted the magistrate Judge's report and recommendation, and denied Lewis's motions to suppress. A jury trial followed and Lewis was convicted. Prior to sentencing, Lewis moved for reconsideration of the order denying his motions to suppress. It was denied and Lewis was sentenced to 97-months imprisonment. On appeal, Lewis's sole argument is that his arrest was unlawful under the Fourth and Fourteenth Amendments, and therefore the drugs obtained during the search incident to his arrest, as well as any statements taken following the arrest, should have been suppressed as "fruit of the poisonous tree."

II. DISCUSSION

We review a district court's fact finding in support of its Disposition of a pretrial motion to suppress under a clearly erroneous standard. See United States v. Garlock, 19 F.3d 441, 442 (8th Cir. 1994). We review de novo the court's ultimate application of the law to these facts. See id. Our examination of the record reveals that none of the findings made are clearly erroneous. Thus the sole remaining issue before us is whether the district court correctly concluded that Lewis's arrest was lawful.

At the outset, we note that Lewis does not dispute that the officers observed him violating the Minneapolis ordinance prohibiting loitering in possession of an open bottle. Nevertheless, he claims that such violation is, at most, a misdemeanor, and because Minnesota Rule of Criminal Procedure 6.01 permits custodial arrests for misdemeanors only under certain circumstances, none of which were present in his case, the officers were therefore only authorized to issue him a citation, not to arrest him. ⁵

In United States v. Bell, 54 F.3d 502 (8th Cir. 1995), this court rejected a similar argument. In Bell, we denied a defendant's motion to suppress cocaine base discovered in a search incident to an arrest for riding a bicycle without a headlight. The district court in Bell had granted the motion on the grounds that Bell's arrest was unlawful because Iowa law only permitted the officers to issue Bell a citation for the bicycle charge, but not to arrest him. See id. at 503. We reversed, holding that "when a federal court must decide whether to exclude evidence obtained through an arrest, search, or seizure by state officers, the appropriate inquiry is whether the arrest, search, or seizure violated the Federal Constitution, not whether the arrest, search, or seizure violated state law." Id. at 504. Under Bell, we think the appropriate inquiry here is not whether Lewis's arrest was valid under Minnesota's criminal procedure statute, but rather under federal law. See also United States v. Wright, 16 F.3d 1429, 1433-37 (6th Cir. 1994).

"It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment." United States v. Robinson, 414 U.S. 218, 224 (1973). Furthermore, "[t]he authority to search the person incident to a lawful custodial arrest... does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect." Id. at 235. It is the fact of the lawful arrest which establishes an officer's authority to search. See id.

We agree with the district court's Conclusion that Lewis was lawfully arrested. The Supreme Court has noted that is a well-established principle of the common law that a police officer is permitted to arrest without a warrant if a misdemeanor is committed in the officer's presence. See United States v. Watson, 423 U.S. 411, 418 & 421-24 (1976); see also Higbee v. City of San Diego, 911 F.2d 377, 379 (9th Cir. 1990) (stating that this practice "has never been successfully challenged and stands as the law of the land"); United States v. Smith, 73 F.3d 1414, 1416 (6th Cir. 1996) (same); Wilson v. Attaway, 757 F.2d 1227, 1235 (11th Cir. 1985) (same). It is clear that Lewis's violation of the Minneapolis ordinances constitutes a misdemeanor. The Minneapolis Code of Ordinances provides that "Every person convicted of a violation of any provisions of this Code... shall be punished by a fine of not to exceed seven hundred dollars ($700.00) or by imprisonment for not to exceed ninety (90) days or both." Minneapolis, Minn., Code of Ordinances § 1.30(a). The Minnesota legislature has defined a misdemeanor as a "crime for which a sentence of not more than 90 days or a fine of not more than $700, or both, may be imposed." Minn. Stat. Ann. § 609.02. In light of the fact that there is no dispute that the misdemeanor was committed in the presence of the officers, we believe Lewis's arrest and the subsequent search of his person were lawful.

III. CONCLUSION

For the foregoing reasons, we affirm the district court's denial of the motion to suppress.

*. Judge McMillian, Judge Richard S. Arnold, Judge Morris S. Arnold, and Judge Murphy would grant the petition.

1. The Honorable Richard W. Goldberg, Judge of the United States Court of International Trade, sitting by designation.

2. The Honorable Paul A. Magnuson, Chief Judge, United States District Court for the District of Minnesota.

3. The Honorable Franklin Noel, United States Magistrate Judge for the District of Minnesota, presiding.

4. Minneapolis, Minn., Code of Ordinances § 364.40 states in pertinent part: "Consuming in public. No person shall consume intoxicating liquor as defined by Minnesota Statutes, Section 340A. 101, Subdivision 14, or nonintoxicating malt liquor as defined by Minnesota Statutes, Section 340A. 101, Subdivision 19, while (1) on a public street, highway, alley, sidewalk, boulevard, or any place frequented by the public; (2) on any private property without the consent of the owner of such property; or (3) while in a vehicle upon a public highway." Minneapolis, Minn., Code of Ordinances§ 364.45 states in pertinent part: "Loitering in possession of open bottle. No person shall loiter in any public street, highway, alley, sidewalk, boulevard or any other public property, or on any private property without consent of the owner of such property, while in possession of any bottle or other...