U.S. v. Powell

• Decision Date: 23 June 2006
• Docket Number: No. 05-3047.,05-3047.
• Citation: 451 F.3d 862
• Parties: UNITED STATES of America, Appellee v. Ronald POWELL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

451 F.3d 862

UNITED STATES of America, Appellee v. Ronald POWELL, Appellant.

No. 05-3047.

United States Court of Appeals, District of Columbia Circuit.

Argued February 23, 2006.

Decided June 23, 2006.

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 Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese, III and David B. Goodhand, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Chief Judge GINSBURG.

ROGERS, Circuit Judge.

The question before the court is whether the exception to the warrant requirement under the Fourth Amendment for a search of the passenger compartment of a car incident to a lawful custodial arrest under New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), applies to a search incident to the possibility of an imminent arrest. We hold that it does not. To come within the exception, the warrantless search cannot precede a custodial arrest; otherwise, neither of the Supreme Court's two historical rationales for the exception would apply. See Knowles v. Iowa, 525 U.S. 113, 116-117, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Consequently, although the police had probable cause to arrest Ronald Powell for a misdemeanor committed in their presence, because they instead searched a nearby car before informing Powell 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, the search was unlawful. Accordingly, because the police lacked probable cause to search the car, we reverse the judgment of conviction based on the fruits of the unlawful search.

I.

On March 2, 2004, at approximately 9:00 p.m., Metropolitan Police Department Officer Bray Jones was driving an unmarked police car with two other officers in Northeast, Washington, D.C.. The officers were in plain clothes, wearing tactical vests bearing the word "police." Officer Jones testified that when they reached the 1700 block of West Virginia Avenue, they saw two men, one of whom was Ronald Powell, urinating a few feet from the rear of a parked car. The men were standing in a dark, deserted, industrial non-residential area, which was illuminated only by street lamps. Two officers approached the men from behind while they were still urinating. Upon turning toward the officers, one of the men said "[W]e were just going to a friend's house .... [W]e had to go, man. We had to go, man."

While this was occurring, Officer Jones approached the driver's side of the car upon noticing a third man sitting in the front passenger seat. All of the car doors were closed; only the driver's window was open. Officer Jones leaned inside the driver's window, his torso entering the car, and shined a flashlight into the car. He saw two clear cups containing yellowish liquid in the cupholder of an armrest in the front seat and another in an armrest in the back seat. While leaning inside of the driver's side of the car, Officer Jones smelled alcohol. Officer Jones moved to the passenger's side of the car and had the passenger get out of the car. He then searched the interior of the car. On the back seat, he found a nearly empty bottle of cognac and a backpack. Upon opening the backpack, Officer Jones found an Intratech TEC-9 machine gun loaded with 23 rounds of ammunition in the magazine and one round in the chamber. He also found inside the backpack a credit card receipt bearing Powell's name and the certificate of title for the vehicle.

Officer Jones then told the other officers to "hook him up," signaling that the three men were to be handcuffed, which they were. Officer Jones called one of the officers to his location and showed him the backpack, which Jones had put on the trunk so that only the officer could see it. At that point, the three men started speaking spontaneously, although Officer Jones could not recall what they said. The men were arrested, according to Officer Jones, for the firearms violation as well as for urinating in public and possession of an open container of alcohol. The men were read their Miranda rights, and in response to questions by one of the officers, Powell said the car and gun were his and that he had the gun for protection. The men were taken to the Fifth District police station where they again were given Miranda warnings; Powell refused to answer any questions.

Powell was indicted for unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). He filed a pretrial motion to suppress physical and oral evidence on four grounds: (1) the police lacked probable cause to believe a misdemeanor was being committed in their presence because it had been completed when the officers arrived on the scene; (2) he was not in the car at the time of any arrest and that any search of the car was not incident to an arrest; (3) Officer Jones's entry into the car constituted a search at its inception and was unsupported by probable cause, and (4) any statements he made were the result of interrogation following an illegal arrest and there were no valid Miranda warnings or waiver of his Miranda rights. The district court denied the motion. A jury found Powell guilty. The district court sentenced Powell to 46 months' imprisonment, followed by three years supervised release. See 18 U.S.C. § 924(a)(2).

II.

Powell appeals the judgment of conviction, specifically the denial of his motion to suppress evidence found in the car and his statement in response to police questioning after he was in handcuffs. We review the district court's determinations of questions of law de novo and its findings of historical fact for clear error. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Holmes, 385 F.3d 786, 789 (D.C.Cir.2004).

On appeal, the Government makes two concessions that narrow our inquiry. First, the Government acknowledges that the record shows that Officer Jones both saw and smelled the yellowish liquid in the cups only after leaning inside the car through the open window on the driver's side of the car. This is clear from Officer Jones' testimony. Thus, the Government correctly concedes that the district court clearly erred in finding that Officer Jones first saw the yellowish liquid in the cups while he was standing outside the vehicle. Having entered the car without probable cause and conducted, on the basis of what he had seen while inside the car, a complete search of the car interior that revealed the backpack with the gun, Officer Jones could not use the fruits of this unlawful search to justify the search or render it permissible under the Fourth Amendment. See, e.g., New York v. Class, 475 U.S. 106, 114-15, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); United States v. Maple, 348 F.3d 260, 261 (D.C.Cir.2003). Second, the Government concedes that the search cannot be justified under the Fourth Amendment as incident to the arrest of the car passenger for possessing an open container of alcohol, see D.C.Code § 22-1001(d) (2001), because the police only had probable cause to believe this violation had occurred as a result of the unlawful search. Again, this is clear from Officer Jones's testimony. Thus, the only question before the court is whether the Government can justify the otherwise unlawful search of the car because the search was "incident to" Powell's post-search arrest for a misdemeanor and thus use the fruits of the unlawful search to justify Powell's arrest for a felony offense. Although the district court did not reach this question, the Government made the argument in the district court and may seek affirmance of the judgment on an alternate ground. See United States v. Hylton, 294 F.3d 130, 136 (D.C.Cir.2002) (citing United States v. Garrett, 720 F.2d 705, 710 (D.C.Cir.1983)).

The Supreme Court has long recognized an exception to the general warrant requirement under the Fourth Amendment for searches incident to prior lawful custodial arrests. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court acknowledged this court's "comprehensive treatment of the authority of a police officer to search the person of one who has been validly arrested and taken into custody," id. at 223-224, 94 S.Ct. 467 (emphasis added), in concluding that the police officer's body search (and subsequent container search) of the defendant after he was arrested for driving after revocation of his operator's permit did not "offend the limits imposed by the Fourth Amendment," id. at 224, 94 S.Ct. 467. The Court then observed that

[i]t is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement * * * [that] has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.

Id. The Court held that "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." Id. at 235, 94 S.Ct. 467.

In Belton, 453 U.S. at 460, 101 S.Ct. 2860, the Supreme Court extended this exception, holding that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search...