483 F.3d 836 (D.C. Cir. 2007), 05-3047, United States v. Powell

Docket Nº:05-3047.
Citation:483 F.3d 836
Party Name:UNITED STATES of America, Appellee v. Ronald POWELL, Appellant.
Case Date:April 17, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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483 F.3d 836 (D.C. Cir. 2007)

UNITED STATES of America, Appellee


Ronald POWELL, Appellant.

No. 05-3047.

United States Court of Appeals, District of Columbia Circuit.

April 17, 2007

Argued Jan. 25, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cr00164-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Suzanne C. Nyland, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III, Assistant U.S. Attorney.

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GINSBURG, Chief Judge.

Dissenting opinion filed by Circuit Judge ROGERS.

Ronald T. Powell challenged the district court's order denying his motion to suppress evidence of the gun and ammunition found in the back seat of his car. A jury convicted Powell of being a felon in possession of the gun and ammunition, in violation of 18 U.S.C. § 922(g)(1). Powell appealed the district court's order and a divided panel of this court reversed his conviction as having been based upon the fruits of an unlawful search. The panel majority reasoned that even when the police have probable cause to arrest a suspect, they may not conduct a warrantless search incident to arrest before taking the suspect into custody. See United States v. Powell, 451 F.3d 862, 863 (D.C.Cir.2006).

Upon the Government's motion, the full court vacated that decision and granted rehearing en banc. Concluding this case is controlled by Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), we now affirm the order of the district court and hold the search of Powell's car was conducted incident to Powell's arrest. Accordingly, unlike the panel, we go on to consider whether the officers had reason to believe Powell was a "recent occupant" of the vehicle and conclude they did, wherefore the search was lawful.

I. Background

One evening at approximately 9:00 p.m. three Metropolitan Police officers were riding in an unmarked police car in the vicinity of 1700 West Virginia Avenue, NE, an industrial area, when they saw Powell and another man standing and urinating to the rear of and a "few feet" from a parked car. The officers "pulled [their] vehicle toward" the men and came to a stop. Officers Masalona and Trudy got out and walked toward the two men while Officer Jones, who had seen a third person sitting in the front passenger seat, approached the driver's side of the car. As the officers approached, one of the men outside the car said, "[W]e were just going to a friend's house and we had to go, man. We had to go."

Officers Masalona and Trudy detained the two men outside the car because "they were going to be placed under arrest" for urinating in public. Meanwhile, Officer Jones leant through the open window on the driver's side of the vehicle and shined his flashlight inside the car, where he saw three clear cups containing a yellowish liquid, two in the cupholders of an armrest in the front seat and one in an armrest in the back seat. Based upon the smell, Officer Jones concluded the liquid was "alcoholic ... in nature." Upon cross-examination Officer Jones conceded that "a portion" of his "head and ... upper body" were inside the vehicle when he first saw the cups.

Officer Jones directed the passenger to get out of the car with the intention of arresting him for possession of an open container of alcohol in a vehicle upon a public way. See D.C.Code § 25-1001(a)(2) (2001). He then searched the vehicle and found on the back seat a capped cognac bottle with a "small portion" of cognac inside and a backpack. Inside the backpack he found an Intertech 9 semi-automatic pistol with 23 rounds in the magazine and one round in the chamber, as well as a certificate of title for the vehicle and a credit card receipt, both in the name of Ronald Powell. Upon finding the gun, Officer Jones said to Officer Masalona,

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"[H]ook him up," which was the officers' signal "that something serious is happening right now" and the suspects should be "placed in handcuffs." The men were taken into custody and variously charged with a firearms violation, possession of an open container of alcohol, and urinating in public.

A grand jury indicted Powell on a single count of being a felon in possession of a firearm and of ammunition, in violation of 18 U.S.C. § 922(g)(1). Powell moved to suppress the physical evidence found in his car as the fruits of an unlawful search. The Government opposed on the ground that, because the police had probable cause to arrest the two men for urinating in public and probable cause to arrest the occupant of the vehicle for possession of an open container of alcohol, the search of the car was conducted incident to an arrest and therefore was lawful under New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

At the hearing on Powell's motion the prosecutor represented that Officer Jones had seen and smelled the alcohol before he leant his head into the vehicle. Defense counsel contended Powell had neither seen nor smelled the alcohol until after he had "physically" entered the vehicle "with his body." The district court upheld the search on the ground that Officer Jones had seen the cups of yellowish liquid in the beam of his flashlight before he leant into the vehicle. This conclusion was directly contrary to Officer Jones's testimony, as the Government has since conceded in its brief for this appeal. Officer Jones's search, and his consequent discovery of the gun and ammunition in the backpack, therefore cannot be justified on the ground that the open containers of alcohol were in plain view; "a search not justified when it is begun cannot be used to elicit evidence with which to justify the search after the fact." United States v. Spinner, 475 F.3d 356, 359 n. * (D.C.Cir.2007) (citations omitted). The search of the car can be justified, if at all, only if it was incident to the arrest of Powell and the other man for urinating in public.

Powell was convicted by a jury and sentenced to 46 months in prison, to be followed by three years of supervised release. He appealed and a divided panel of this Court reversed the district court's order denying Powell's motion to suppress, holding the police may not conduct a warrantless search of the passenger compartment of a car incident to arrest "before informing [an occupant of the car] that he was under arrest or restraining his movement in a manner that would lead a reasonable person in his position to believe he was under arrest." Powell, 451 F.3d at 864. The full court vacated the panel's decision in order to consider whether "the search of the car was lawfully conducted as a search incident to Powell's arrest."

II. Analysis

Powell argues the search was unlawful because he "had no reason to believe he was being arrested at the time of the search" and the "search incident to arrest" exception to the warrant requirement of the Fourth Amendment to the Constitution of the United States does not apply to a search conducted prior either to the announcement of a formal arrest or to the suspect being taken into custody. We reject that view because we believe this case is controlled by Rawlings.

A. Rawlings

In Rawlings the Supreme Court held the police may search a suspect whom they have probable cause to arrest if the "formal arrest follow[s] quickly on the heels of the challenged search," 448 U.S. at 111, 100 S.Ct. 2556. The Court was quite clear in stating that, assuming such proximity in

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time, it is not "particularly important that the search preceded the arrest rather than vice versa." Id. This court applied the Supreme Court's clear teaching in United States v. Riley, 351 F.3d 1265, 1269 (D.C.Cir.2003) (where "police had probable cause to arrest" before search, it was "of no import that the search came before the actual arrest"). So, too, did the Ninth Circuit in United States v. Smith, 389 F.3d 944, 951 (9th Cir.2004) ("So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical" (citations omitted)), and the Tenth Circuit in United States v. Lugo, 170 F.3d 996, 1003 (10th Cir.1999) ("A legitimate 'search incident to arrest' need not take place after the arrest" (citation omitted)). Indeed, every circuit that has considered the question--save one--has concluded that a search incident to arrest may precede the arrest. See, e.g., United States v. Bizier, 111 F.3d 214, 217 (1st Cir.1997); United States v. Donaldson, 793 F.2d 498, 503 (2d Cir.1986); United States v. Currence, 446 F.3d 554, 557 (4th Cir.2006); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir.1987); United States v. Montgomery, 377 F.3d 582, 588 (6th Cir.2004); United States v. Ilazi, 730 F.2d 1120, 1126-27 (8th Cir.1984); Smith, 389 F.3d at 951; Lugo, 170 F.3d at 1003; United States v. Banshee, 91 F.3d 99, 102 (11th Cir.1996). Only the Seventh Circuit has held that a Belton search may not precede a custodial arrest, but it did so in an opinion that, like the briefs then before it, betrayed no awareness of the Supreme Court's holding in Rawlings. See Ochana v. Flores, 347 F.3d 266, 270 (7th Cir.2003).

Applying the teaching of Rawlings to the facts of this case, we must uphold Officer Jones's search of the car. Powell acknowledges the officers had probable cause to arrest him and his companion for urinating in public before they searched his car. See D.C.Code § 22-1321 (2001); Scott v. United States, 878 A.2d 486, 488 (D.C.2005). Indeed, Officer Jones testified...

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