476 F.3d 1012 (D.C. Cir. 2007), 05-3156, United States v. Mapp
| Citation | 476 F.3d 1012 |
| Party Name | UNITED STATES of America, Appellee v. Sterling MAPP, Appellant. |
| Case Date | February 20, 2007 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit |
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Argued January 12, 2007.
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Appeal from the United States District Court for the District of Columbia No. 04cr00449-01.
Ketanji B. Jackson, Assistant Federal Public Defender, argued the cause for the appellant. A. J. Kramer, Federal Public Defender, was on brief for the appellant. Neil H. Jaffee and Tony Axam, Jr., Assistant Federal Public Defenders, entered appearances.
Ann K. H. Simon, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III and William B. Wiegand, Assistant United States Attorneys, were on brief for the appellee.
Before: Ginsburg, Chief Judge, and Henderson and Garland, Circuit Judges.
OPINION
KAREN LECRAFT HENDERSON, Circuit Judge:
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Sterling Mapp (Mapp) was indicted on one charge of possessing with intent to distribute more than one hundred grams of phencyclidine (PCP) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Mapp moved to suppress evidence, arguing that the arresting officers' search of his vehicle--and discovery of PCP--was not conducted "incident to a lawful arrest" and therefore excepted from the Fourth Amendment's warrant requirement under Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). The district court denied the motion and Mapp entered a conditional guilty plea, reserving the right to appeal the district court's order. Mapp now appeals. As detailed below, we affirm the district court's order denying Mapp's motion to suppress.
I.
On September 6, 2004, United States Park Police Officer James Dowd (Dowd) was in his patrol car in the left-turn lane northbound on Martin Luther King Avenue in southeast Washington, D.C. Although the traffic signal showed "a green arrow allowing the left traffic lane to turn left," the Cadillac in front of Dowd--the first car in the turning lane--did not turn left. 5/2/05 Tr. 11. Instead, the Cadillac allowed "the left-turn green arrow [to] expire[]" and "southbound traffic began to move southbound through the intersection." Id. At that point, the Cadillac quickly turned left without yielding to southbound traffic,see id., and caused southbound "cars to slam on their brakes." Factual Proffer in Support of Guilty Plea (Factual Proffer), reprinted in Mapp Appendix (App.) at 46. After witnessing this maneuver, Dowd followed the Cadillac onto Malcolm X Avenue and radioed the Park Police station for a registration check.
Before receiving a response to his inquiry, Dowd observed the Cadillac quickly pull to a stop on the right side of the street. Dowd responded by pulling his car alongside the Cadillac as its driver--Mapp--began to exit the vehicle and Dowd "informed the driver that he committed a traffic violation" at the last intersection. 5/2/05 Tr. 13. At the same time, a woman--later identified as Keisha Napper (Napper)--exited the passenger side of the Cadillac. Dowd reversed his police cruiser in order to park directly behind the Cadillac, "basically ... like a normal traffic stop." Id. at 14. As Dowd parked, Mapp began walking toward him. Getting out of the cruiser, Dowd asked Mapp for his license and registration and Mapp, continuing to approach Dowd, began feeling around his clothing as if searching for his license. At this point, Dowd noticed Napper walking away from the Cadillac with "a bunch of kids." Id. at 16.
As Mapp approached him, Dowd instructed Mapp to stop reaching around and, when Mapp nonetheless continued to do so, Dowd became "a little nervous" and ordered Mapp to place his hands on the cruiser's hood. Id. at 14. Finally, Mapp responded that he did not have a driver's license and Dowd placed him under arrest for failure to display a permit, a violation of D.C. Mun. Regs. tit. 18 §§ 100.2 and 421.1. After arresting Mapp, Dowd placed him in the back seat of the cruiser and asked Mapp for his car keys, intending to "do a search incident to arrest." Id. at 18. Mapp responded that Napper had taken the keys. Id. at 17. About this time, Napper returned, explaining that "she had put the keys with her kids." Id. Two other Park Police officers who had responded to the scene went with Napper to retrieve the keys. The officers returned with Napper within "approximately five minutes," id. at 34, but without the keys because Napper told them that "she forgot where she put her kids," id. at 17. Ultimately,
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the police discovered that the rear passenger's side door was unlocked and began searching the vehicle.
Dowd opened the front passenger door and "immediately [noticed] a black plastic bag . . . [on] the center console" between the driver's and passenger's seats. Id. at 19. Inside the bag Dowd observed eight bottles containing a brownish-yellow liquid that he suspected—from past experience—to contain PCP. See 9/9/04 Tr. 9. Knowing PCP "to be somewhat dangerous," Dowd asked Napper what was in the bottles and Napper responded, "I think it's drugs." Id. at 10–11. Thus, "[b]etween the color [of the liquid], the way they were packaged, and her statements, [Dowd] was fairly certain that [he] was dealing with PCP." Id. at 11.1 At that point, he arrested Mapp and Napper for possessing PCP with intent to distribute and transported them to a Park Police station.2
On October 7, 2004, a grand jury charged Mapp on one count of possessing with intent to distribute one hundred grams or more of PCP in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Mapp subsequently moved to suppress the PCP recovered from his car "as the fruit of an illegal seizure and search." Mot. to Suppress Physical Evid. and Statements (Mot. to Suppress), reprinted in App. at 22. Mapp argued that the circumstances of his arrest neither posed a threat of evidence destruction nor endangered the safety of the arresting officers because "Mapp was handcuffed and under police control before the search took place." App. at 26 (emphasis in original). Relying on language contained in a concurring opinion in Thornton, 541 U.S. at 625, 124 S.Ct. 2127, Mapp asserted that a vehicle search is not incident to the arrest of a recent occupant of the vehicle unless the police have reason to "believe that evidence of the crime for which they are arresting the person will be in the car." 5/2/05 Tr. 68. But the district court declined "to look through the lens of the concurring opinion" because "the majority was clear" that the police can "search a vehicle when somebody has been arrested, even if that person is out of the vehicle at the time of the first contact." Id. at 90. 3 Accordingly, the district court found the search of Mapp's car incident to his lawful arrest and denied the motion to suppress. Mapp entered a conditional guilty plea and the district court sentenced him to sixty-one months' imprisonment. Mapp filed his notice of appeal on September 16, 2005.
II.
The Fourth Amendment to the United States Constitution prohibits police
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from "conduct[ing] a search unless they first convince a neutral magistrate that there is probable cause to do so" and obtain a warrant. New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); see also U.S. Const. amend. IV. A warrantless search is permitted, however, if it occurs "incident to a lawful arrest." See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). "To qualify for the exception, (i) the arrest must be lawful, and (ii) the subsequent search must not exceed the scope permitted by the exception." United States v. Wesley, 293 F.3d 541, 545 (D.C. Cir. 2002). Mapp challenges the search of his car under both criteria. In reviewing the district court's suppression order, "we review de novo the district court's conclusions of law." Id. In contrast, we "review findings of historical fact only for clear error and . . . give due weight to inferences drawn from those facts." Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
A.
"To have been lawful, the arrest must have been based upon probable cause to believe that a crime was being committed." Wesley, 293 F.3d at 545. A lawful arrest can be based on a misdemeanor offense punishable only by a fine. See Atwater v. City of Lago Vista, 532 U.S. 318, 323, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Moreover, "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In determining whether probable cause existed, a reviewing court does not consider "the actual motivations of the individual officers involved." Id. at 813, 116 S.Ct. 1769.
Mapp first argues that "the alleged D.C. traffic infraction ... was not supported by probable cause" because "Officer Dowd was able to make the left hand turn behind [him]" onto Malcolm X Avenue. Appellant's Br. at 47, 46. 4 The record, however, indicates that Dowd had probable cause to arrest Mapp for failure to yield. Dowd observed Mapp making an abrupt turn after the green turn signal had expired, causing oncoming traffic to "slam on their brakes," Factual Proffer at App. 46, in order to avoid an accident. 5/2/05 Tr. 10-12. That maneuver provided Dowd with probable cause to believe that a traffic violation--failure to yield--had occurred, see D.C. Mun. Regs. tit. 18 § 2208.2, 5 and thus to arrest Mapp , see Atwater, 532 U.S. at 354, 121 S.Ct. 1536. Mapp contends that his left turn did not
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create "an immediate hazard" to oncoming traffic, and thus did not constitute...
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