U.S. v. McCane
Decision Date | 28 July 2009 |
Docket Number | No. 08-6235.,08-6235. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Markice Lavert McCANE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
William H. Campbell, Campbell Law Office, Oklahoma City, OK, for Defendant-Appellant.
Edward J. Kumiega, Assistant United States Attorney (John C. Richter, United States Attorney, with him on the briefs), Oklahoma City, OK, for Plaintiff-Appellee.
Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.
In April 2007, Defendant-Appellant Markice McCane was stopped for a suspected traffic violation by an Oklahoma City police officer. After determining McCane was driving under a suspended license, the officer arrested McCane, handcuffed him, and placed him in the back seat of the patrol car. The officer then conducted a search of the passenger compartment of the vehicle and discovered a firearm in the pocket of the driver's side door. McCane was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). McCane filed a motion to suppress the firearm as fruit of an unlawful search. The district court denied the motion, concluding the search was properly undertaken as incident to a lawful arrest. While the case was pending on appeal, the United States Supreme Court issued its decision in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the Court concluded a vehicle search is not valid as incident to a lawful arrest when a defendant is stopped for a traffic violation and handcuffed in the back of the patrol car at the time of the search. Id. at 1719. In light of Gant, the district court erred in concluding the search was valid as incident to a lawful arrest. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we nevertheless affirm the district court's denial of the motion to suppress based upon the good-faith exception to the exclusionary rule.
On April 18, 2007, Officer Aaron Ulman of the Oklahoma City Police Department was patrolling his precinct when he observed a vehicle traveling eastbound on a four-lane thoroughfare. The vehicle was straddling the center line of the two eastbound lanes. After following the vehicle for approximately three blocks, Officer Ulman decided to conduct a traffic stop based upon his belief the driver was violating state traffic law and his suspicion the driver was intoxicated. After pulling the vehicle over to the side of the road, Officer Ulman approached the vehicle and asked the driver, later identified as McCane, for his license and insurance information. A passenger, Joseph Carr, was also in the vehicle.
After McCane informed him that his license was suspended, Officer Ulman asked McCane to exit the vehicle and accompany him to the patrol car. McCane complied, and Carr remained in the front seat of the vehicle. Upon exiting the vehicle, McCane left the driver's door open, and the door remained open for the duration of the stop. Officer Ulman conducted a pat-down search of McCane and placed him in the back seat of the patrol car. Officer Ulman then conducted a records check, which indicated McCane's license was suspended and the vehicle was not registered to McCane. At that time, Officer Ulman arrested McCane for driving with a suspended license, placed him in handcuffs, and again placed him in the back seat of the patrol car. After requesting dispatch to contact a wrecker service to tow the vehicle, Officer Ulman asked Carr to exit the vehicle and sit in the back seat of the patrol car along with McCane. Carr did so, and Officer Ulman then searched the passenger compartment of the car.
During the search, Ulman discovered a .25 caliber firearm hidden under a rag in the side pocket of the open door. The firearm was loaded with a magazine containing seven rounds of ammunition. Officer Ulman removed the firearm from the vehicle and took it back to the patrol car in order to secure it. The patrol car was parked directly behind McCane's vehicle. According to Officer Ulman, when McCane saw the firearm he stated, "I forgot that was even there." Officer Ulman then advised McCane of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and McCane did not make any additional statements. After the vehicle was impounded, Carr was released, and McCane was transported to the police station for booking.
McCane was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Before the district court, McCane filed motions to suppress the firearm and exclude his alleged inculpatory statement. The district court denied these motions, concluding the statement was made voluntarily and the search of McCane's vehicle did not violate the Fourth Amendment because it was properly undertaken as a search incident to lawful arrest. Following a jury trial, McCane was found guilty of the charged offense. McCane then appealed to this court alleging: (1) the district court erred in denying his pretrial motions to suppress the evidence stemming from the search of his vehicle; (2) insufficient evidence existed from which to convict him of the offense; and (3) the felon in possession statute at 18 U.S.C. § 922(g)(1) is unconstitutional in light of the Supreme Court's decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
While the case was pending before this court, the Supreme Court issued its decision in Arizona v. Gant. ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485. On facts almost identical to the facts of this case, the Supreme Court held that the search-incident-to-lawful-arrest exception to the warrant requirement of the Fourth Amendment is not applicable when a defendant has been arrested for a traffic violation and remains handcuffed in the back of a patrol car while the search is conducted. Id. at 1719. After noting that lower courts have widely upheld searches "in this precise factual scenario," the Court stated that an officer may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" or when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Id. at 1718-19 (quotations omitted).
The parties agree that, in light of Gant, the district court erred in denying the motion to suppress the firearm on the grounds that the search was proper as incident to lawful arrest. The parties disagree, however, as to whether the district court's denial of the motion to suppress can be affirmed on an alternative ground. Thus, the issues now before the court are: (1) whether the district court's denial of the motion to suppress the firearm may be affirmed based upon the good-faith exception to the exclusionary rule or the inevitable discovery doctrine, (2) whether sufficient evidence existed on which to convict McCane, and (3) whether 18 U.S.C. § 922(g) is constitutional.1
This court may affirm the district court on any basis supported by the record. Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 825 (10th Cir.2008). As an alternative ground for affirming the district court's decision to deny the motion to suppress the firearm as fruit of an unlawful search, the government claims that Officer Ulman reasonably relied upon settled pre-Gant Tenth Circuit case law, and the good-faith exception to the exclusionary rule should be extended to this search.2 To prevail on this alternative ground, the government must establish that the search of the vehicle was supported by extant Tenth Circuit precedent and that the principle of deterrence underlying the exclusionary rule is not undermined.
The Supreme Court in Gant expressed concern that its precedent, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), was being generally applied far beyond the underlying justifications for warrantless vehicle searches incident to arrest of a recent occupant, i.e., officer safety and preservation of evidence. Gant, 129 S.Ct. at 1718-19. It observed that Belton "has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." Id. at 1718. Tenth Circuit precedent anteceding Gant was not an exception.
The decision in United States v. Humphrey, 208 F.3d 1190 (10th Cir.2000), is exemplary of this circuit's precedent and is factually indistinguishable from the instant case. In Humphrey, the defendant was stopped for a traffic violation, arrested on the basis of an outstanding warrant, and handcuffed in the patrol car at the time of the search of his vehicle. See id. at 1202. The defendant's arguments that neither officer safety nor preservation of evidence were in play were to no avail. Id. This court held the search was proper "without regard to the fact that the search occurred after Defendant had been restrained and without regard to the nature of the offense for which he was arrested." Id. (citation omitted). Other circuit opinions are consistent with Humphrey.3 United States v. Brothers, 438 F.3d 1068, 1073 (10th Cir. 2006) ( )4; United States v. Cotton, 751 F.2d 1146, 1148-49 (10th Cir.1985); United States v. Murphy, 221 Fed.Appx. 715, 721-22 (10th Cir.2007) (unpublished disposition). The search in this case was wholly consistent with and supported by this court's precedent prior to Gant.
"The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers,...
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