United States v. Johnson

• Decision Date: 09 January 2019
• Docket Number: No. 17-10252,17-10252
• Citation: 913 F.3d 793
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lamar JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

913 F.3d 793

UNITED STATES of America, Plaintiff-Appellee,

v.Lamar JOHNSON, Defendant-Appellant.

No. 17-10252

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 11, 2018 San Francisco, California

Filed January 9, 2019

WALLACE, Circuit Judge:

Lamar Johnson was stopped while driving and subjected to a warrantless search of his person and car. One year later, police conducted a warrant search of his home. The fruits of these searches led to Johnson’s indictment and conviction for multiple crimes. Johnson appeals, challenging his conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

I.

On August 7, 2015, Lamar Johnson was stopped while driving by Sergeant Clint Simmont of the East Palo Alto Police Department. As Simmont spoke with Johnson, he smelled a combination of burnt and fresh marijuana, which he recognized through his work patrolling East Palo Alto and on the San Mateo County Narcotics Task Force. Simmont asked Johnson for his registration and proof of insurance, to which Johnson responded that he was borrowing the car and did not have registration or insurance information. Simmont asked if Johnson was sure, and Johnson opened the glove box as if to check. Simmont observed empty plastic bags and pill bottles in the glove box and noticed that Johnson "moved his hand around on the few items that were in there, but he didn’t actually manipulate any items." This manner was "inconsistent with the way someone would genuinely search for paperwork." Simmont then learned from a police dispatch agent that Johnson had been arrested for parole violations, which indicated to Simmont that Johnson had been convicted of a felony.

Simmont asked Johnson to step out of the vehicle and searched his person. Simmont discovered that Johnson was wearing a bulletproof vest and arrested him for being a felon in possession of body armor. After backup police units arrived, Simmont and the other officers searched Johnson’s car and discovered a loaded handgun, a pill bottle containing acetaminophen/hydrocodone pills, plastic bags, scales, and concentrated cannabis. Johnson was transported to a police station, where a second search of his person revealed additional controlled substances.

The following year, a separate investigation in San Mateo County linked Johnson to controlled substance distribution. On March 16, 2016, a judge in San Mateo Superior Court issued a warrant to search Johnson, a vehicle allegedly belonging to him, and a residence in east Palo Alto allegedly belonging to him. Detective Christopher Sample subscribed and swore to an affidavit in support of the warrant.

According to his affidavit, Sample met with a confidential informant (CI) who purportedly could call a man named "Lamar" at a specific phone number and arrange a sale of cocaine base. The CI called the number and a male voice answered the phone and gave a location to meet. Police observed the CI meet Johnson at that location and exchange items. Sample then tested the substance the CI received from Johnson and identified it as cocaine. Sample followed Johnson from the exchange and stopped him in front of a house for a minor traffic violation. Johnson’s driver license stated he lived at the house where they had stopped, and Johnson told Sample that it was his house. Sample then observed Johnson entering the house before he drove away.

Sample then arranged a second buy through the same CI. Again, the CI called the phone number, the man provided a location to meet, and the CI exchanged items with Johnson after they met at that location. Sample tested the substance the CI received from Johnson and it again tested positive as cocaine. Again, police followed Johnson and observed him return to the same home. The first buy occurred within the 20 days preceding the affidavit, and the second buy within 10 days.

Sample’s affidavit also provided information about his training and experience. Sample averred that drug traffickers who sold cocaine base often purchased it in bulk quantities and stored it in their cars and homes. Based on the factual information recited above and Sample’s description of his training and experience, the superior court issued a search warrant. The search of Johnson’s home recovered a firearm, ammunition, scales, plastic bags, pills in bottles, and cocaine base.

Johnson was indicted on nine counts of drug and firearm offenses. Before trial, Johnson moved to suppress all evidence recovered from the warrantless search of his person and car and the warrant search of his house. The district court denied the motion in two separate orders. Johnson then stipulated to certain facts and the district court held a bench trial. The government dismissed two counts and the district court convicted Johnson on the remaining seven. At sentencing, the district court increased Johnson’s offense level by four levels because he had used body armor during the commission of a drug trafficking crime.

Johnson appeals, arguing that the district court erred in denying his motion to suppress and by applying the body armor enhancement to his sentence.

II.

"We review de novo the district court’s denial of a motion to suppress. We review the district court’s underlying factual findings for clear error." United States v. Camou , 773 F.3d 932, 937 (9th Cir. 2014) (citations omitted).

"We review a district court’s construction and interpretation of the Guidelines de novo and its application of the Guidelines to the facts for abuse of discretion." United States v. Simon , 858 F.3d 1289, 1293 (9th Cir. 2017) (en banc) (alteration in original removed) (quoting United States v. Popov , 742 F.3d 911, 914 (9th Cir. 2014) ).

III.

Johnson argues that the warrantless search of his person, the warrantless search of his car, and the warrant search of his home all violated the Fourth Amendment. We address each argument in turn.

A.

The search incident to a lawful arrest exception to the warrant requirement allows a police officer to search an arrestee’s person and the area within the arrestee’s immediate control. Arizona v. Gant , 556 U.S. 332, 339, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). It is well-established in this circuit that a search, incident to a lawful arrest, does not necessarily need to follow the arrest to comport with the Fourth Amendment. United States v. Smith , 389 F.3d 944, 951 (9th Cir. 2004) (citing Rawlings v. Kentucky , 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) ). Instead, probable cause to arrest must exist at the time of the search, and the arrest must follow "during a continuous sequence of events." Id. If these conditions are satisfied, the fact that the arrest occurred shortly after the search does not affect the search’s legality.

It is also well-established that the mindset of an arresting officer is usually irrelevant to a seizure’s legality. See Devenpeck v. Alford , 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ; Arkansas v. Sullivan , 532 U.S. 769, 771, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (per curiam); Atwater v. City of Lago Vista , 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ; Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Instead, the officer’s state of mind matters only to the extent that probable cause must be based on "the facts known to the arresting officer at the time of the arrest." Devenpeck , 543 U.S. at 152, 125 S.Ct. 588. Thus, when the officer’s known facts provide probable cause to arrest for an offense, the officer’s "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Id. at 153, 125 S.Ct. 588.

The question presented in this case is whether these two well-established principles may coincide without violating the Fourth Amendment. Johnson contends that to do so would create a "search incident to probable cause" rule, allowing officers to search a person whenever probable cause to arrest exists. Johnson argues that the existence of such a rule will cause widespread fishing expeditions that are pre-textual and discriminatory.

We conclude that the search of Johnson’s person was constitutional. The search incident to a lawful arrest exception is "based upon the need to disarm and to discover evidence," but it "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." United States v. Robinson , 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Thus, we do not balance Johnson’s interests in not being searched against Sergeant Simmont’s interest in searching him. Instead we evaluate whether, as a general matter, the justifications for the search incident to lawful arrest exception retain force in the context of a search performed by an officer who has probable cause to arrest and shortly thereafter does arrest. See Knowles v. Iowa , 525 U.S. 113, 117–19, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (evaluating whether the historical justifications for searches incident to arrest applied to decide whether to recognize a "search incident to citation" exception).

The justifications for the exception do not lose any of their force in this context. As explained in Robinson , and reaffirmed in Knowles , when an officer begins an encounter with another person, and probable cause to arrest exists, danger to the police officer "flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest ." Robinson , 414 U.S. at 234 n.5, 94 S.Ct. 467 (emphasis added); see also Knowles , 525 U.S. at 117, 119 S.Ct. 484 (quoting same). As in other contexts then, the precise crime for which an officer has probable cause is irrelevant. Cf. Devenpeck , 543 U.S. at 153, 125 S.Ct. 588 ("[An officer’s] subjective reason for making the arrest need not be the criminal offense as to...