United States v. Maddox

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30284

Plaintiff-Appellant, D.C. No.

v.  2:08-cr-00159-

NEAL MADDOX, RHW-1

Defendant-Appellee.

 OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, Senior District Judge, Presiding

Argued and Submitted

April 6, 2010—Seattle, Washington

Filed: August 12, 2010

Before: Michael Daly Hawkins, Carlos F. Lucero,* and

N. Randy Smith, Circuit Judges.

Opinion by Judge Hawkins;

Dissent by Judge N.R. Smith

*The Honorable Carlos F. Lucero, United States Circuit Judge for the

Tenth Circuit Court of Appeals, sitting by designation.

11435

UNITED STATES v. MADDOX 11437

COUNSEL

Aine Ahmed, Office of the United States Attorney, Spokane,

Washington, for the plaintiff-appellant.

Matthew Campbell, Office of the Federal Defenders of East-

ern Washington and Idaho, Spokane, Washington, for the

defendant-appellee.

11438 UNITED STATES v. MADDOX

OPINION

HAWKINS, Circuit Judge:

The government appeals the suppression of evidence found

inside closed containers—themselves inside a motor vehicle

stopped for a traffic violation—after the driver was hand-

cuffed and securely placed in the rear of the arresting officer’s

patrol car. We affirm.

FACTS

Officer Scott Bonney had pulled over to the side of the road

to finish writing a police report, when he saw Neal Maddox’s

(“Maddox”) Chevy truck enter the intersection. Maddox

stopped abruptly in the intersection, then immediately pro-

ceeded in reverse. As he was moving in reverse towards the

stop sign, Maddox nearly collided with a small blue car going

westbound in the intersection. He made a three-point turn,

blocking traffic, turned around, and accelerated. Maddox

slowed once the officer activated his overhead lights, and

stopped at the side of the road.

When Officer Bonney exited his patrol car, Maddox exited

his vehicle and began yelling at the officer. Officer Bonney

instructed Maddox to sit in the driver’s seat and remain still,

approached the vehicle, and told Maddox he had stopped him

for driving recklessly. Maddox identified himself, but was

unable to produce a driver’s license. When asked whether the

vehicle belonged to him, Maddox admitted ownership, noting

his friend gave him the truck a few weeks before. He added

he had yet to register the truck, and had no bill of sale. Officer

Bonney noticed the vehicle’s tags were expired, and the tem-

porary sticker in the rear window was not only a photocopy,

but also valid for longer than was normal for a temporary

sticker (31 rather than 30 days). A computer check revealed

that Maddox’s license had been suspended. When Maddox

ignored the officer’s request to step outside the vehicle, the

UNITED STATES v. MADDOX 11439

officer took away Maddox’s key chain and cell phone, tossing

them on the front seat of Maddox’s vehicle. Officer Bonney

placed Maddox under arrest, handcuffed him, and escorted

him to the patrol car. He then searched Maddox’s person and

found $358 in cash inside Maddox’s pants pockets, putting

Maddox in the back of the patrol car after the search. It is

undisputed that, at this point, Maddox posed no threat to offi-

cer safety and there was no danger of evidence destruction.

Officer Bonney then returned to Maddox’s vehicle, reached

inside, and retrieved the key chain and cell phone. Hanging on

the key chain was a metal vial with a screw top. Removing

the top and the vial’s contents, the officer discovered a sub-

stance he believed to be methamphetamine. Entering the inte-

rior of vehicle, the officer found a closed computer case

which he opened, and discovered a handgun and still more of

the substance he had found in the key chain vial.

Following a hearing, the district court determined that nei-

ther probable cause, exigent circumstance, nor the incidents of

Maddox’s arrest or impoundment of his vehicle justified a

warrantless search of the interior of Maddox’s vehicle, and

ordered suppression of the items found there. This interlocu-

tory appeal followed.1

STANDARD OF REVIEW

A district court’s grant or denial of a motion to suppress is

reviewed de novo. United States v. Orman, 486 F.3d 1170,

1173 (9th Cir. 2007); United States v. Bynum, 362 F.3d 574,

578 (9th Cir. 2004); United States v. Negrete-Gonzales, 966

F.2d 1277, 1282 (9th Cir. 1992).

1

We deny the Government’s motion to file a supplemental record of an

alleged misstatement made by a defense witness at the suppression hear-

ing; this evidence was never presented to the district court, and was not

a part of the district court record. We grant Maddox’s motion to strike the

portion of the Government’s reply brief referring to such testimony.

11440 UNITED STATES v. MADDOX

DISCUSSION

The Key Chain

The Government argues the search of Maddox’s key chain

was proper as incident to lawful arrest.

[1] A search incident to lawful arrest is one of the “few

specifically established and well-delineated exceptions” to the

warrant requirement of the Fourth Amendment, see Katz v.

United States, 389 U.S. 347, 357 (1967), and is conducted for

the twin purposes of finding weapons the arrestee might use,

or evidence the arrestee might conceal or destroy. Chimel v.

California, 395 U.S. 752, 762-63 (1969). The determination

of the validity of a search incident to arrest in this circuit is

a two-fold inquiry: (1) was the searched item”within the

arrestee’s immediate control when he was arrested”; (2) did

“events occurring after the arrest but before the search ma[k]e

the search unreasonable”? United States v. Turner, 926 F.2d

883, 887 (9th Cir. 1990).2

2

The dissent relies on United States v. Robinson, 414 U.S. 218, 235

(1973), convinced Officer Bonney conducted a valid search incident to

arrest. Dissenting Op., at 11447-48. Robinson, however, is easily distin-

guishable from the case before us; the search of Maddox’s key chain was

not a valid search incident to arrest as the key chain was not on Maddox’s

person at the time of the search. After pulling over Robinson’s vehicle, the

officer was “face-to-face” with Robinson when he conducted a patdown

of the defendant, during which he “felt an object in the left breast pocket

of the heavy coat respondent was wearing,” reached into Robinson’s

pocket and pulled out the object (a crumpled cigarette package), and then

opened the package, finding 14 gelatin capsules of heroin. Id. at 224. The

officer then “continued his search of [Robinson] to completion, feeling

around his waist and trouser legs, and examining the remaining pockets.”

Id. Here, Officer Bonney took the keys, and placed them on the seat of

Maddox’s car; he did not open the key chain during a patdown search of

Maddox, but after Maddox was secure in the patrol car and when the keys

were no longer on his person. The Court’s admonition in Robinson that

“the authority to search the person incident to a lawful custodial arrest,

while based upon the need to disarm and to discover evidence, does not

UNITED STATES v. MADDOX 11441

[2] Contrary to the dissent’s opening description, this was

not a search of Maddox’s person incident to arrest. Maddox’s

person was handcuffed in the back of the squad car, incapable

of either destroying evidence or presenting any threat to the

arresting officer. While the key chain was within Maddox’s

immediate control while he was arrested, subsequent events—

namely Officer Bonney’s handcuffing of Maddox and placing

Maddox in the back of the patrol car—rendered the search

unreasonable. In Turner, we found valid the search of baggies

found after the defendant was handcuffed and taken into the

next room because of a legitimate concern for the officers’

safety: “they had already discovered a concealed weapon

beneath the bedding.” Id. at 888; accord United States v. Hud-

son, 100 F.3d 1409, 1420 (9th Cir. 1996) (search of bedroom

valid search incident to arrest even after defendant had been

arrested and removed from the room, where “[w]hen Hudson

was called out of his bedroom and arrested, one of the arrest-

ing officers noticed a rifle case near his feet”). No such

weapon or threat was found here, and Maddox’s demeanor, as

the dissent argues, see Dissenting Op., at 11445 n.1, did not

provide such legitimate concern for Officer Bonney’s safety,

as after initially yelling, Maddox subsequently cooperated

with the officer and the arrest. Mere temporal or spatial prox-

imity of the search to the arrest does not justify a search; some

threat or exigency must be present to justify the delay. See

United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled

on other grounds by California v. Acevedo, 500 U.S. 565, 571

(1991) (“warrantless searches of luggage or other property

seized at the time of an arrest cannot be justified as incident

to that arrest either if the search is remote in time or place

from the arrest, or no exigency exists. Once law enforcement

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,” id. at 253, cannot possibly have meant to encom-

pass a situation such as Maddox’s, where he was handcuffed and locked

securely in the back of a patrol car.

11442 UNITED STATES v. MADDOX

officers have reduced luggage or other personal property not

immediately associated with the person of the arrestee to their

exclusive control, and there is no longer any danger that the

arrestee might gain access to the property to seize a weapon

or destroy evidence, a search of that property is no longer an

incident of the arrest.”) (internal quotations and citations

omitted). With Maddox handcuffed in the backseat of the

patrol car, no possibility of Maddox concealing or destroying

the key chain and the items contained therein, and no sighting

of weapons or other such threats, Officer Bonney’s search of

Maddox’s key chain was not a valid search incident to arrest.3

The Laptop Bag

The Government contends the officer’s seizure of the lap-

top bag was the result of a valid inventory search.4

3

Maddox did not have a diminished privacy interest in his key chain

container merely because he “chose to attach the searched container to his

keys.” See Dissenting Op., at 11450 n.4. The Supreme Court has “rejected

the proposition that ‘the nature of a container may diminish the constitu-

tional protection to which it otherwise would be entitled.’ ” United States

v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981) (citing Robbins v.

California, 453 U.S. 420, 424-25 (1981) (plurality). “[S]uch a distinction

‘has no basis in the language or meaning of the Fourth Amendment’

because that ‘Amendment protects people and their effects, and it protects

those effects whether they are ‘personal’ or ‘impersonal.’ ” Id. In recog-

nizing an individual’s privacy interest in a purse, we held “no one can sen-

sibly be asked to distinguish the relative ‘privacy interests’ in a closed

suitcase, briefcase, portfolio, duffle bag or box.” Id. While the keys may

very well be considered “what amounts to a tool,” see Dissenting Op., at

11450 n.4, and while “any person wishing to drive his truck, move his

truck, lock or unlock his truck [may be] required to use a set of keys,” see

id., such use of the keys would not require a person to open the container

attached to those keys. An individual therefore has a privacy interest in

such a container, which could contain a wide range of medications or

other personal items.

4

The Government does not contest that without a valid seizure of the

key chain, the officer lacked probable cause to search the rest of the vehi-

cle, and therefore did not have probable cause to seize the laptop bag. See

United States v. Barajas-Avalos, 377 F.3d 1040, 1054 (9th Cir. 2004) (cit-

ing United States v. Wanless, 882 F.2d 1459, 1465 (9th Cir. 1989));

United States v. DiCesare, 765 F.2d 890, 899, amended by 777 F.2d 543

(9th Cir. 1985).

UNITED STATES v. MADDOX 11443

[3] Vehicular inventory searches must be conducted “in

accordance with the standard procedures of the Washington

State Patrol” in order for procured evidence to be admitted in

federal court. United States v. Wanless, 882 F.2d 1459, 1463

(9th Cir. 1989). Once a vehicle is impounded, police may

conduct an inventory search. Id. Police may impound a vehi-

cle in Washington state:

if the officer has probable cause to believe that it was

stolen or used in the commission of a felony; . . . as

part of the police ‘community caretaking function’

. . . [provided] neither the defendant nor his spouse

or friends are available to move the vehicle; and . . .

if the driver has committed one of the traffic

offenses for which the legislature has specifically

authorized impoundment.5

State v. Williams, 689 P.2d 1065, 1071-72 (Wash. 1984).

With the verification of the vehicle identification number and

plates, and Maddox’s own assertion of ownership, any suspi-

cion the vehicle was stolen was but a “mere suspicion.” See

State v. Houser, 622 P.2d 1218, 1222-23 (Wash. 1980)6.

5

Here, neither the offense of reckless driving, nor the offense of driving

while license suspended (3rd degree), specifically authorize impoundment.

See Rev. Code Wash. §§ 46.61.500; 46.20.342.

6

The court in Houser found the detective “harbored a mere suspicion

that the car was stolen, and that it was this suspicion which caused the

officer to impound the car.” Houser, 622 P.2d at 1224. The officer testi-

fied that he was not sure the vehicle was stolen, made no further inquiry

into the defendant’s right to possession of the car, did not inquire as to the

false identity used by the defendant, did not ask why the defendant was

in the area, and did not inquire why the defendant was using a car regis-

tered to another individual. Id. He also did not run a check of the VIN to

determine if the car was stolen. Id. Because “a mere suspicion that a vehi-

cle is stolen does not rise to the level of probable cause for the purpose

of justifying an intrusion of Fourth Amendment rights,” the court found

that “the State ha[d] not sustained its burden of showing the impoundment

was based on probable cause that the car was stolen.” Id.

11444 UNITED STATES v. MADDOX

Moreover, the vehicle here was impounded for reasons other

than to carry out the community caretaking functions of the

police: it was not abandoned, impeding traffic, or threatening

public safety or convenience. See id. at 1224. Finally, because

Maddox offered to have his friend move the vehicle, the offi-

cer did not sufficiently consider alternatives before impound-

ing Maddox’s truck. The officer’s impoundment of Maddox’s

vehicle violated Washington Law, and, therefore, did not

qualify as a valid inventory search in accordance with the

Fourth Amendment.

AFFIRMED.

N.R. SMITH, Circuit Judge, dissenting:

The undisputed facts of this case establish that Officer Bon-

ney’s search of Maddox’s key-chain container was a search of

an arrestee’s person incident to a lawful custodial arrest—a

search that needs no warrant to be valid under established

Fourth Amendment law. See United States v. Robinson, 414

U.S. 218, 236 (1973). I therefore dissent.

In review of the pertinent facts in this case, Maddox does

not dispute that Officer Bonney had probable cause to arrest

him. He does not dispute that Officer Bonney first took pos-

session of Maddox’s keys when Officer Bonney removed

Here, not only did Officer Bonney run the VIN and find the car was not

stolen, but he also asked Maddox whether the truck belonged to him. Mad-

dox responded that he owned the truck but it was given to him by a friend,

and he did not have time to register it. With the verification of the VIN

and plates, and Maddox’s own assertion, Officer Bonney had even less

reason to believe the vehicle was stolen than the officer in Houser; any

suspicion the vehicle was stolen, therefore, was only a “mere suspicion”

and did not rise to the level of reasonable cause required under Washing-

ton state law. See Houser, 622 P.2d at 1223.

UNITED STATES v. MADDOX 11445

those keys from Maddox’s hand as Officer Bonney was

attempting to handcuff Maddox. He does not dispute Officer

Bonney’s description of Maddox’s behavior upon being

stopped; behavior that is best described as confrontational and

aggressive.1 Finally, Maddox does not dispute that, if we find

the search of the key-chain container valid, the discovery of

methamphetamine in that key-chain container justifies a war-

rantless search of Maddox’s truck under the “automobile

exception.” See Carroll v. United States, 267 U.S. 132,

160-62 (1925). Having found undisputed facts establishing

the propriety of Officer Bonney’s search of the key-chain

container, this panel need look no further for justification. See

Gustafson v. Florida, 414 U.S. 260, 263-64 (1973) (holding

that the lawful arrest renders the search of the arrestee’s per-

son “reasonable” under the Fourth Amendment).

FACTS

Officer Bonney first noticed Maddox while Officer Bonney

was parked on the west side of Barker Road in Spokane,

Washington (Barker Road runs north-south), typing up some

notes on a noise complaint call in the area. Officer Bonney’s

vehicle was facing south and located just north of an intersec-

tion where Buckeye Avenue (Buckeye Avenue runs east-

west) ends at Barker Road (forming a T-intersection). From

that vantage point, Officer Bonney observed Maddox driving

westward down Buckeye Avenue. As Officer Bonney

watched, Maddox drove past a stop sign and then abruptly

stopped (Bonney suspected that the truck’s driver was about

to run the stop sign before seeing the police car), coming to

a complete stop in the intersection, partially blocking north-

1

Although Maddox’s behavior is not dispositive when determining the

validity of the search, I do find it particularly relevant to understanding the

nature of the stop. In particular, Maddox’s confrontational and aggressive

behavior forced a situation where Officer Bonney’s search of Maddox’s

effects, while contemporaneous to the arrest, was not performed until

Maddox was secured.

11446 UNITED STATES v. MADDOX

bound traffic on Barker Road. At this point, Officer Bonney

pulled out to catch up with the truck. The truck then immedi-

ately reversed, almost backing into a small car traveling west

behind the truck. The truck made a quick 3-point turn—

blocking traffic on Buckeye Avenue in both directions—and

quickly accelerated eastward. When Officer Bonney caught

up, the truck slowed down to a crawl, and, at that point, Offi-

cer Bonney pulled the truck over.

When Officer Bonney exited his patrol car, Maddox also

got out and began yelling at him—including yelling “Why the

fuck you stopping me?” as well as other profanities. Officer

Bonney informed Maddox that he had stopped Maddox for

reckless driving and asked to see Maddox’s driver’s license.

Maddox told him that he did not have a driver’s license. Offi-

cer Bonney then asked Maddox to whom the truck belonged,

to which Maddox replied that a friend “gave” him the truck

a few weeks earlier.2 Maddox admitted that he had not regis-

tered the truck and that he had no bill of sale. Officer Bonney

noticed that tabs on the truck were expired and that a tempo-

rary sticker in the rear window of the truck appeared to be

invalid (Officer Bonney observed that the sticker was a

photocopy—rather than the original—and that the dates on

the sticker would have made the 30-day temporary sticker

valid for 31-days even if it had been issued the day of the

stop).

When Officer Bonney ran a computer check on Maddox, he

discovered that Maddox’s license had been suspended. He

then walked back to the truck to place Maddox under arrest

for reckless driving and driving while his license was sus-

pended. Just before handcuffing Maddox, Officer Bonney

2

The majority opinion characterizes Maddox’s statement that he owned

the car as an “admission” of ownership. However, the record reflects that

from Officer Bonney’s perspective, rather than viewing Maddox’s state-

ment that a friend gave him the car as an “admi[ssion] of ownership,” it

raised concerns as to the vehicle’s true owner.

UNITED STATES v. MADDOX 11447

removed a cell phone and key-chain from Maddox’s hands

and set them on the driver’s seat. After walking Maddox back

to the patrol car, Officer Bonney continued his search of Mad-

dox’s person, finding $358 in Maddox’s pants pockets. Offi-

cer Bonney then secured Maddox in the back of the patrol car.

After securing Maddox, Officer Bonney went to retrieve the

items he had seized incident to arrest, which included the key-

chain. On the key-chain was a blue cylindrical container with

a screw top. Upon removing that top, Officer Bonney found

a white crystallized substance he recognized as methamphet-

amine.

ANALYSIS

An officer’s authority to search an arrestee’s person inci-

dent to arrest arises from the existence of a lawful custodial

arrest. Robinson, 414 U.S. at 236. No one disputes the lawful

custodial arrest here. We must only decide whether Officer

Bonney’s search of the key chain container was too remote in

time or place, to be justified as a search of an arrestee’s per-

son incident to arrest. The majority holds this search invalid,

finding that while the key chain container was within Mad-

dox’s immediate control at the time of the arrest, events sub-

sequent to the arrest but prior to the search rendered the

search “unreasonable.” Maj. Op. 11441. The majority bases

its finding of unreasonableness on the fact that, at the time

Officer Bonney returned to further investigate the items

seized in his search incident to arrest, “Maddox’s person was

handcuffed in the back of the squad car, incapable of either

destroying evidence or presenting any threat to the arresting

officer.” Maj. Op. 11441. However, the majority cannot cite

any authority for requiring such an instantaneous assessment

of those items seized upon a search incident to arrest nor can

it cite authority for such a case-specific review. Instead, con-

trary to the majority’s view, the Supreme Court has expressly

instructed that we not engage in a “case-by-case adjudication”

“of the reasons supporting the authority for a search of the

person incident to a lawful arrest,” but that the “how and

11448 UNITED STATES v. MADDOX

where” of the search should generally be left within the judg-

ment of the police officer. Robinson, 414 U.S. at 235.3 Here,

there exist no unusual circumstances requiring this panel to

step outside the general rule set forth in Robinson and ques-

tion Officer Bonney’s judgment. Finally, the very case upon

which the majority primarily relies, United States v. Turner,

926 F.2d 883 (9th Cir. 1990), contradicts the majority view.

There, we held that a search, conducted when the arrestee’s

person was handcuffed and secured in a different room than

that being searched, was still a valid search of an arrestee’s

person incident to arrest.

1. Search of an Arrestee’s Person and the Chimel

Justifications

“A police officer’s determination as to how and where to

3

The majority seeks to avoid the Supreme Court’s clear instruction in

Robinson, finding it “easily distinguishable” because of the difference in

facts between Robinson and the case here. However, Robinson cannot be

so easily cast aside, for two reasons. (1) In Robinson, the Supreme Court

sought to determine the validity of a search of an arrestee’s person inci-

dent to arrest; here, we seek to answer that same issue. Further, Robinson

does not limit its holding to its facts and, as the Supreme Court often does,

the opinion explains the genesis, development, justifications, and limita-

tions of a search of an arrestee’s person incident to arrest. That guidance

simply cannot be ignored because of minor factual differences. (2) In this

common law system, the facts here and those in the binding precedent of

Robinson are simply not that different. In Robinson, the defendant was

arrested for driving without a permit; Maddox was arrested for driving

without a permit. In Robinson, the drugs were found inside of a container

(a cigarette pack) taken from the defendant’s person during the search;

here, the drugs were found inside of a container (key chain container)

taken from Maddox’s person during the search. The difference exists in

the timing of when the arresting officer further inspected that seized con-

tainer. However, in the Robinson opinion, there exists no evidence that the

defendant acted in an aggressive or hostile manner; here, there exists

uncontroverted evidence that Maddox acted in an aggressive and hostile

manner while being arrested. With such similarity, the Supreme Court’s

instruction in Robinson remains, at very least, highly instructive, and cer-

tainly should not be dismissed as “easily distinguishable.”

UNITED STATES v. MADDOX 11449

search the person of a suspect whom he has arrested is neces-

sarily a quick ad hoc judgment which the Fourth Amendment

does not require to be broken down in each instance into an

analysis of each step in the search.” Robinson, 414 U.S. at

235. Thus, the Supreme Court instructed that an appellate

panel’s review should not focus upon the “how and where” of

the search. Nevertheless, both the Supreme Court and this

Circuit have decided cases where they found the search too

remote in time or place to be described as a search incident

to arrest. See, e.g., United States v. Chadwick, 433 U.S. 1, 4-5,

15 (1977) (finding the search of a double-locked luggage

chest that was not searched until an hour and a half after the

arrests, having been transported to a federal building, was not

a proper search incident to arrest), abrogated on other

grounds by California v. Acevedo, 500 U.S. 565 (1991);

Monclavo-Cruz, 662 F.2d at 1287 (finding warrantless search

invalid where officers seized a purse incident to arrest, trans-

ported the purse to Immigration Office, and searched the

purse about an hour after the arrest). Because Chadwick and

Monclavo-Cruz present fact patterns where a search incident

to arrest was found improper, I contrast the facts here with

those cases. While the facts surrounding the searches in Chad-

wick and Monclavo-Cruz were much more extreme in time

and location than the search here, the courts looked to (1) the

time of the search relative to the arrest, and (2) the location

of the search.

In sum, a reviewing panel must respect the inherent reason-

ableness of the officer’s search and the ad hoc nature in which

that search is conducted, by declining to engage in a fact-

based review of the “how and where” of the search; yet a

panel must guard against expanding presumed reasonableness

to searches that clearly are not “incident to arrest.”

Looking to the manner, location, and time of Officer Bon-

ney’s search of the key-chain container, the majority errs in

finding the search should be included among those extreme

cases where the search was found unreasonable. Officer Bon-

11450 UNITED STATES v. MADDOX

ney took the key-chain container directly from Maddox’s

hand at the exact time that he was arresting Maddox. He

momentarily set the container in almost the exact location of

the arrest—in order to handcuff Maddox. He then secured

Maddox in the patrol car and directly returned to retrieve and

assess the evidence found on Maddox’s person. At this point,

Officer Bonney searched the container. Maddox presents no

evidence that the arrest was protracted or that Officer Bonney

did not return directly to the items seized during the search

incident to arrest. Maddox provides no evidence that Officer

Bonney moved the evidence away from the scene of arrest

and seizure before conducting his search. Thus, the search

occurred within a time of mere minutes and within an area of

mere feet; far from the passage of hours or the transportation

to another location that occurred in Chadwick and Monclavo-

Cruz.

The majority also supports its view by arguing that the war-

rantless search of an arrestee’s person is an exception to the

Fourth Amendment’s warrant requirement and, therefore,

only valid if it can be justified either as an attempt to ensure

police safety or preserve evidence. Maj. Op. 11440 (citing

Chimel v. California, 395 U.S. 752, 762-63 (1969)). This

argument fails because, as the Supreme Court has explained,

the validity of a search incident to arrest does not rely upon

satisfaction of those justifications.4 First, although the search

4

In making such argument, I do not concede that the facts cannot rely

upon the twin justifications of officer safety and preservation of evidence.

In fact, the search of the key chain container can be supported by both jus-

tifications. Although the nature of the container does not diminish Mad-

dox’s constitutional protections, Monclavo-Cruz, 662 F.2d at 1287, the

fact that Maddox chose to attach the searched container to his keys sup-

ports the reasonableness of Officer Bonney’s search. Here, the item

searched (a small cylinder with a screw cap) was attached to what amounts

to a tool: the keys to Maddox’s vehicle. Any person wishing to drive his

truck, move his truck, lock or unlock his truck is required to use a set of

keys. Officer Bonney himself would be required to use that same set of

keys if he wished to move or secure Maddox’s truck upon arrest. I cannot

UNITED STATES v. MADDOX 11451

of an arrestee’s person incident to arrest has been, at times,

referred to as an “exception” to the Fourth Amendment’s war-

rant requirement, the Supreme Court has made clear that the

search is not so much an exception to the warrant require-

ment, as it is reasonable by its nature. Gustafson, 414 U.S. at

263-64. Second, Chimel never “purported to limit the tradi-

tional authority of the arresting officer to conduct a full search

of the person of an arrestee incident to a lawful custodial

arrest.” Id. at 264; see also Robinson, 414 U.S. at 236 (“[I]t

is the fact of custodial arrest which gives rise to the authority

to search.”). Therefore, the majority’s reliance upon the

necessity to demonstrate such justifications fails.

2. United States v. Turner

The majority relies upon Turner, where a search incident to

arrest was found valid, in order to invalidate the search of

Maddox. However, applying Turner to the facts here, it rein-

forces, rather than conflicts with, the Supreme Court’s prece-

dent in Chadwick and the Ninth Circuit case of Monclavo-

Cruz. For these reasons, I find the majority’s reliance upon

Turner unconvincing.

Turner adopted a two-fold inquiry to aid a reviewing panel

in determining whether a search was a valid search of an

arrestee’s person incident to arrest. Turner, 926 F.2d at 887.

Turner requires a reviewing panel first determine whether the

searched item was “within the arrestee’s immediate control at

the time he was arrested” and next determine whether the

“events occurring after the arrest but before the search made

the search unreasonable.” Id. First, there can be no dispute

agree with the conclusion that the justifications of officer safety and

destruction of evidence—upon which the majority so heavily relies—do

not further support the search of a small unlocked container attached to a

tool which Officer Bonney would either be forced to use himself or to give

to another person.

11452 UNITED STATES v. MADDOX

here that the key chain container was “withing [Maddox’s]

immediate control at the time he was arrested.” Neither party

disputes that Maddox was arrested while at his car and that

the keys were taken from Maddox’s hand at the very moment

of arrest. Second, there exist no extraordinary events occur-

ring between the arrest and the search rendering Officer Bon-

ney’s further investigation of the seized item unreasonable.

A comparison of the facts in Turner also reveals the valid-

ity of Officer Bonney’s search. In Turner, we found the

search incident to arrest valid, where the officers did not

search baggies, found on the bed where the defendant had

been arrested, until after the defendant was cuffed and secured

in another room. 926 F.2d at 886, 888.5 Those baggies were

found to contain cocaine base. Id. The Turner opinion does

not explain whether the baggies searched were clear or

opaque; it does not tell us how the baggies were closed, how

they were searched or the tools necessary to open the baggies.

Id. Instead, Turner provides a cursory conclusion that the

search was valid, because the panel could not say that the offi-

cers’ concerns for their own safety at the time of arrest “were

unfounded.” Id. at 888. As discussed above, I also cannot find

Officer Bonney’s actions unfounded given (1) the nature of

Maddox’s erratic driving, (2) his immediate and aggressive

confrontational behavior, and (3) the suspicious circum-

stances surrounding the vehicle, combined with Robinson’s

instruction that reviewing courts refrain from unnecessarily

5

The majority parses the location of the defendant to the searched item

in much greater detail than that found in Turner. In Turner, the baggies

were discovered in the same bed where Turner was arrested (not in his

pocket or in his hands), and were not searched until after he was removed

from the room and secured. Yet, the majority does not challenge that the

search was a valid search of an arrestee’s person incident to arrest. Here,

the key chain container was taken directly from Maddox’s hand, but not

searched until after he was removed from the area and secured in the

patrol car. Yet, the majority states that, under such facts, the search could

not possibly be described as a search of Maddox’s person. Maj. Op.

11441-42.

UNITED STATES v. MADDOX 11453

second-guessing the officer’s judgment regarding the neces-

sary actions to protect his safety, see 414 U.S. at 235. Further-

more, before looking to the two-fold inquiry, the panel in

Turner reiterated this Circuit’s general principle for searches

incident to arrest: “Such a search incident to arrest must be

conducted at ‘about the same time as the arrest.’ ” Turner,

926 F.2d at 887 (quoting Untied States v. Andersson, 813 F.2d

1450, 1456 (9th Cir. 1987)). Here, Officer Bonney’s search of

the key-chain container satisfies this standard, as it was

“about the same time as the arrest.”

Lastly, here the majority invalidates a search where an offi-

cer, without the aid of other officers, deems it necessary to

secure a hostile and confrontational arrestee before immedi-

ately returning to those items taken directly from the

arrestee’s hands during the arrest. Therefore, it seems unlikely

that the majority, if presented with the facts of Turner, would

find a search valid where a prepared team of officers arrested,

secured, and moved the arrestee before searching the bed

upon which he was found.

CONCLUSION

The parties do not dispute that the arrest of Maddox was a

lawful custodial arrest. The parties do not dispute that the

item searched was taken from Maddox’s hand at the exact

moment he was arrested. The parties do not dispute that the

item was not moved from the place of seizure and was

searched within minutes of arrest. Therefore, I find that the

search of Maddox’s key-chain container was a lawful search

of an arrestee’s person incident to arrest. I dissent.