United States v. Powell, Ronald

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2006 Decided June 23, 2006

No. 05-3047

UNITED STATES OF AMERICA,

APPELLEE

v.

RONALD POWELL,

APPELLANT

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.

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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 (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 (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,

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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

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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

(1996); United States v. Holmes, 385 F.3d 786, 789 (D.C. Cir.

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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 (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)).

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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 (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

(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. 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.

In Belton, 453 U.S. at 460, 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 the passenger

compartment of that automobile,” id. at 460 (emphasis added),

including the contents of any containers found therein, id. The

Court observed that it has identified two historical rationales for

the exception: (1) the need “to remove any weapons that [the

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arrestee] might seek to use in order to resist arrest or effect his

escape,” and (2) “the need to prevent the concealment or

destruction of evidence [by the arrestee].” Id. (quoting Chimel

v. California, 395 U.S. 752, 763 (1969)); see Robinson, 414 U.S.

at 234. In Belton, the defendant, who had been a passenger in a

car stopped for speeding, “was the subject of a lawful custodial

arrest on a charge of possessing marihuana,” id. at 462, and

“[t]he search of [his] jacket [found in the back seat of the car]

followed immediately upon that arrest,” id. The Court recalled

that the exception to the warrant requirement is based on the

recognition “that ‘the exigencies of the situation’ may

sometimes make an exemption from the warrant requirement

‘imperative.’” Id. at 457 (quoting McDonald v. United States,

335 U.S. 451, 456 (1948)). It recounted that “a lawful custodial

arrest creates a situation which justifies the contemporaneous

search without a warrant of the person arrested and of the

immediately surrounding area,” id. (citing Chimel, 395 U.S. at

763).

Powell contends that neither of the two historical rationales

that the Supreme Court has provided for the search-incident-to-

arrest exception apply in his case. Although on the facts found

by the district court the police had probable cause to arrest

Powell for disorderly conduct, unlike the police in Belton, the

police here did not formally arrest or otherwise detain Powell

before searching the car. Powell points out, based on the record

before the district court, that the officers had not spoken to him

or to the second man who was urinating when Officer Jones

began searching the car. Powell therefore maintains that he and

the second man had no reason to believe they were under arrest

and thus had no reason to resist arrest or to destroy evidence.

The Government urges the court to hold that the existence

of probable cause to arrest is alone sufficient for the exception

under Belton to apply. Relying on United States v. Riley, 351

8

F.3d 1265, 1269 (D.C. Cir. 2003), the Government would have

the court extend the Belton exception to cases where the police

could have initiated a lawful arrest but did not. Extending the

exception in that manner would be entirely misplaced.

First, Supreme Court precedent undercuts the notion that

authority to arrest, when no arrest occurs, empowers a police

officer to conduct a warrantless search of the passenger

compartment of a car. Belton and its progeny have used the

phrase “incident to” to refer to a search that follows a lawful

custodial arrest, not vice versa. See Belton, 453 U.S. at 460;

Robinson, 414 U.S. at 223-24. In Knowles, 525 U.S. at 118, the

Court rejected the argument that a police officer who issued a

traffic citation had grounds to search the car merely because the

officer could have arrested the driver for the offense for which

the officer issued a citation. The choice made by the police

officer – to arrest or to issue a citation – determined what action

the officer could lawfully take thereafter. The Court’s holding

that the warrantless search was unlawful was unaffected by the

fact that, under the applicable statute, the police officer had

probable cause to arrest the driver. Id. at 115.

Second, the Government’s position would sever the

exception from its two historical rationales. In Knowles, the

Court reaffirmed that the authority to search incident to a prior

arrest is an exception to the Fourth Amendment warrant

requirement and that its scope is specifically circumscribed by

two concerns: officer safety and preservation of evidence. Id.

The Court explained that until an encounter ripens into an arrest,

neither rationale is triggered because “[1] a person might well be

less hostile to the police and [2] less likely to take conspicuous

immediate steps to destroy incriminating evidence.” Id. at 117

(quoting Cupp v. Murphy, 412 U.S. 291, 296 (1973)). Because

there is no reason to fear that the suspect who is issued a

citation, in contrast to an “arrestee,” will lash out at the police

9

officer or destroy evidence, the exception does not apply. In

Robinson, the Court explained that it is the act of arrest that

places the officer in physical danger because of the “extended

exposure which follows the taking of a suspect into custody and

transporting him to the police station,” 414 U.S. at 234-35,

recognizing that “[t]he 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,” id. at 235 n.5.

Absent a prior custodial arrest, the danger that the Supreme

Court has deemed to necessitate an exception to the warrant

requirement is, as a matter of law, non-existent. The Court

reaffirmed this reasoning in Knowles, 525 U.S. at 117-18.

Reversing a conviction based on the fruits of a search of a car

incident to a citation and not an arrest, the Court reasoned that

“the threat to officer safety from issuing a traffic citation . . . is

a good deal less than in the case of a custodial arrest.” Id. at 117.

Further, “[o]nce [the defendant] was stopped for speeding and

issued a citation, all the evidence necessary to prosecute that

offense had been obtained.” Id. at 118.

Third, no precedent supports the Government’s position that

a warrantless search can be justified by a hypothetical arrest that

may or may not have occurred had the search turned up no

evidence of criminal wrongdoing. Although the defendant in

Rawlings v. Kentucky, 448 U.S. 98 (1980), which was decided

prior to Belton, was not placed under “formal arrest” until

“quickly” after he was searched, id. at 111, “[t]he Court’s every

word and sentence cannot be read in a vacuum; its

pronouncements must be read in light of the holding of the case

and to the degree possible, so as to be consistent with the

Court’s apparent intentions and with other language in the same

opinion.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C

Cir. 1998) (en banc). The Court in Rawlings had to decide

whether drug evidence was the fruit of illegal detention and

illegal searches. 448 U.S. at 100. The police had come to an

10

apartment to execute an arrest warrant and although they did not

find the man named in the warrant, others in the apartment,

including Rawlings, were detained when the police smelled

marihuana smoke and saw marihuana seeds on the mantle in a

bedroom. See id. Rawlings was detained by the police for forty-

five minutes while a search warrant for the apartment was

obtained and told he could leave only if he consented to a body

search. Id. When the police returned with a search warrant,

Rawlings was read the Miranda warnings and told to claim what

was his from the contents of a purse belonging to another

detainee. When Rawlings claimed the controlled substances, the

police searched his person, finding a large amount of cash and

a knife, and “placed Rawlings under formal arrest.” Id. at 101.

Thus, in Rawlings, there was a custodial arrest once the

police made clear to Rawlings that he was being detained and

could not leave the apartment without submitting to a body

search. The fact that the police gave him Miranda warnings

once they returned to the apartment with a search warrant further

indicated that the police had placed him under arrest prior to the

search. The Court made no reference to Robinson. To the extent

the Court relied on the fact that the police had probable cause to

arrest Rawlings before the search, see id. at 111, its rationale

does not survive Belton and its progeny. See Knowles, 525 U.S.

at 118.

In Riley, the formal announcement of arrest followed a body

search after a custodial arrest. Relying on Rawlings, this court

declared that “[i]t [wa]s of no import that the search [of the

suspect] came before the actual arrest.” 351 F.3d at 1269 (citing

Rawlings, 448 U.S. at 111). Again, the court’s pronouncement

cannot be read in a vacuum. See Aka, 156 F.3d at 1291. The

police had been alerted by a tip that Riley was carrying a large

amount of crack cocaine in his sock. Id. at 1266. Upon locating

the suspect and confirming his name, three officers surrounded

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him, so that he could not move without touching one of them,

and ordered him to dismount from a moped. Id. at 1267. An

officer then leaned down, saw a bulge in Riley’s sock, and

recovered drugs from the sock. Id. The court had to decide

whether there was probable cause to support Riley’s arrest at the

time he was surrounded and ordered to dismount, and, if so,

whether the search of his sock, before his formal arrest, was

incident to that arrest. Id. The Government “expressly

disavowed” any view that the police action in surrounding Riley

was simply a seizure under Terry v. Ohio, 392 U.S. 1 (1968).

See Riley, 351 F.3d at 1267 Based on the tip and police

confirmation of details such as the suspect’s appearance and

name, the court held there was probable cause for the arrest

when the police surrounded Riley, id. at 1267-68, and under the

circumstances, the fact that “the actual arrest” followed the

search of Riley’s person was immaterial, id. at 1269. The court

did not address Belton or its progeny. To the extent Riley might

be read as authority for upholding searches based on the mere

existence of probable cause when there is a post-search arrest,

such a reading cannot be reconciled with the court’s recognition

that a lawful arrest had occurred in Riley prior to the search,

much less with Belton and its progeny regarding what

exigencies can justify the search-incident-to-arrest exception to

the warrant requirement.

Fourth, assuming the sequencing analysis in Rawlings and

Riley for a search of the person would apply to the search of a

car, the Government’s reliance on Riley is misplaced because it

ignores, as does our dissenting colleague, see infra at 4, the

custodial nature of the police conduct that preceded the body

search. We agree with the Seventh Circuit that for purposes of

the search-incident-to-arrest exception, a “suspect is under

custodial arrest when a reasonable person in the suspect’s

position would have understood that situation to constitute a

restraint on freedom of movement of the degree which the law

12

associates with formal arrest.” Ochana v. Flores, 347 F.3d 266,

270 (7th Cir. 2003). Certainly, handcuffing a suspect prior to a

search, see dissent at 4-5, would qualify as a custodial arrest.

No such arrest occurred here. Prior to the search of the car, the

police neither told Powell that he was under arrest for urinating

in public in their presence, nor restrained his movement in a

manner that would indicate to a reasonable person in his position

that he was not free to leave because he was being detained by

the police. At the time of the search, the police were still

investigating the situation as they had no prior information about

any of the men or the car when they arrived at the scene.

Although Officer Jones had removed the passenger from the car,

as might be justified by a concern for his safety, see Knowles,

525 U.S. at 117-18, the first inkling of an arrest came only with

Officer Jones’ command after the search, which turned up

dangerous contraband, to “hook him up.” Even under the dictum

in Riley, 352 F.3d at 1267, regarding a Terry seizure, none had

occurred.

In short, neither the Supreme Court nor this court in Riley

has strayed from the requirement underlying the exception to the

warrant requirement that the search be incident to a prior lawful

custodial arrest. To the extent this court may have attempted to

fashion a different rule, see United States v. Abdul-Saaboor, 85

F.3d 664, 668 (D.C. Cir. 1996), cited by our dissenting

colleague, infra at 1, and the dissent attempts to do so today, see

id. at 4-5 & n.*, and our sister circuits have concluded that the

existence of probable cause to arrest is a sufficient substitute for

a custodial arrest prior to a search under the Belton exception,

see United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004);

United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999), the

Supreme Court rejected that sequencing analysis in Knowles.

Fifth, adopting the extension of Belton’s bright-line rule that

the Government seeks – whereby the police could lawfully

13

search incident to the possibility of an imminent arrest based on

probable cause – would eviscerate the limits placed by the

Supreme Court on a carefully circumscribed exception to a

constitutional right. The police undoubtedly witness numerous

occurrences of conduct that they conclude is so trivial that an

arrest is unwarranted even though such conduct generates

probable cause to arrest. Under the Government’s theory, which

is embraced by our dissenting colleague (with a qualification

regarding a later arrest), see infra at 5 n.*, the police would have

a blank check to search cars whenever an offense too trivial in

their view to justify making a custodial arrest was committed by

someone who conceivably could have a connection to a nearby

car. But the possibility of an imminent arrest does not present

the circumstances that, under Belton and its progeny, permit a

warrantless search prior to a lawful custodial arrest. The

Supreme Court emphasized, in reversing the conviction in

Knowles, that the search-incident-to-arrest exception it has

recognized to address exigent circumstances relating to police

safety and securing evidence from interference by the arrestee

is tied to two rationales, which are directly linked to the prior

initiation of a custodial arrest. If the rationale for the exception

to the warrant requirement of the Fourth Amendment is absent,

because there is no custodial arrest prior to the search, then the

exception is inapplicable.

The objective facts known to the police when they arrived

in the 1700 block of West Virginia Avenue, N.E., provided

probable cause to arrest two men for urinating in public in the

presence of the police, D.C. Code § 22-1321; Scott v. United States,

878 A.2d 486, 487-88 (D.C. 2005). The police chose not to place

Powell and the second man under arrest for disorderly conduct

and instead searched the car. As witnesses to the public

urination, the police had all the evidence necessary to prosecute

that offense, but because they did not place Powell under arrest,

under Belton and its progeny the police could not lawfully

14

search the passenger compartment of the car without a warrant,

even assuming they had reason to believe that Powell was a

recent occupant of the car. Cf. Knowles, 525 U.S. at 118.

Concern for the officers’ safety was addressed when Officer

Jones removed the passenger from the car. See id. at 117-18.

The police had no information prior to conducting the search

that the car contained dangerous contraband. See generally

Maple, 348 F.3d at 263-64 (citing Cady v. Dombrowski, 413

U.S. 433, 441 (1973)).

We need not address whether the police had sufficient

reason to believe that Powell had been a recent occupant of the

car at the time Officer Jones searched it. In Thornton v. United

States, 541 U.S. 615, 620-21 (2005), the Supreme Court

recognized, in different circumstances, that an arrestee’s recent

occupancy of a car was sufficient to justify a search of the

passenger compartment after a custodial arrest. The issue is not

before us because whatever Powell’s apparent connection to the

car, his commission of a misdemeanor offense, in the absence of

a custodial arrest, was insufficient to justify the search of the car

under Belton. Absent police conduct that would have indicated

to a reasonable man in Powell’s position that he was under

arrest, neither of the historical rationales provided by the

Supreme Court for the search-incident-to-arrest exception is

triggered. See id. at 621.

Because the police lacked probable cause to search the car,

we hold that the district court erred in denying Powell’s motion

to suppress evidence. Accordingly, we reverse the judgment of

conviction based on the fruits obtained as a result of the

unlawful search.

GINSBURG, Chief Judge, dissenting: The rule in New York

v. Belton, 453 U.S. 454, 460 (1981), authorizes the police,

without a warrant, to search the passenger compartment of an

automobile “incident” to a lawful custodial arrest. The Court

today redefines this term; now, in order to be deemed “incident,”

the search must follow an arrest.

Until today our understanding of the rule was that “a search

is conducted incident to an arrest so long as it is an ‘integral part

of a lawful custodial arrest process.’ ... The relevant distinction

turns not upon the moment of the arrest versus the moment of

the search but upon whether the arrest and search are so

separated in time or by intervening events that the latter cannot

fairly be said to have been incident to the former.” United

States v. Abdul-Saboor, 85 F.3d 664, 668 (D.C. Cir. 1996)

(quoting United States v. Brown, 671 F.2d 585, 587 (D.C. Cir.

1982)).

More important, in Rawlings v. Kentucky, 448 U.S. 98, 111

(1980), the Supreme Court specifically said it is not “particularly

important that the search preceded the arrest rather than vice

versa” where “the formal arrest followed quickly on the heels of

the challenged search” and “the police clearly had probable

cause to place [the suspect] under arrest” before the search.

That is exactly what happened here. See also United States v.

Riley, 351 F.3d 1265, 1269 (D.C. Cir. 2003) (where “the police

had probable cause to arrest” before the search it was “of no

import that the search came before the actual arrest”); 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”); 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). Of the

three other circuits to address the issue only one has held a

Belton search must follow a custodial arrest and that case failed

to mention Rawlings. See Ochana v. Flores, 347 F.3d 266, 270

2

(7th Cir. 2003).

Applying the teaching of the Supreme Court in Rawlings to

the facts of this case, I believe we must uphold Officer Jones’

search of the car. As the Court acknowledges, Ct. Op. at 13, the

officers had probable cause to arrest Powell and his companion

before the search and without regard to the fruits of that search.

See D.C. Code §§ 22-3312.01, 22-3312.04(a); Scott v. United

States, 878 A.2d 486, 488 (D.C. 2005). Indeed, Officer Jones

testified that the officers “detain[ed]” the men because “they

were going to be placed under arrest” for “[u]rinating in public.”

Immediately following the search, Powell and his companion

were indeed handcuffed and formally placed under arrest for

public urination as well as for the firearms violation brought to

light by the search. As in Rawlings, “the formal arrest followed

quickly on the heels of the challenged search.” 448 U.S. at 111.

Therefore, because “the police had probable cause to arrest

[before the search], the search was valid as one incident to

arrest.” Riley, 351 F.3d at 1269.

The Court gives a novel reading to Rawlings and Riley and

I believe errs in concluding they do not control this case because

of “the custodial nature of the police conduct that preceded” the

search in those cases. Ct. Op. at 11. Noting that a custodial

arrest takes place “when a reasonable person in the suspect’s

position would have understood that situation to constitute a

restraint on freedom of movement of the degree which the law

associates with formal arrest,” id. at 11-12 (quoting Ochana, 347

F.3d at 270), the Court apparently reads Riley to mean a search

must always follow a custodial arrest and may precede only “the

formal announcement of arrest.” Id. at 10. In cases involving

a search incident to arrest neither we nor the Supreme Court

have previously parsed the distinction between “custodial” and

“formal” arrests, but the Supreme Court did at least advert to

such a distinction in Rawlings, 448 U.S. at 111 (a search may

3

lawfully precede an arrest so long as a “formal arrest follow[s]

quickly on [its] heels”), and the taxonomy is, of course, familiar

from the Miranda line of cases, see, e.g., Berkemer v. McCarty,

468 U.S. 420, 440 (1984) (“It is settled that the safeguards

prescribed by Miranda become applicable as soon as a suspect’s

freedom of action is curtailed to a degree associated with formal

arrest. If a motorist who has been detained pursuant to a traffic

stop thereafter is subjected to treatment that renders him ‘in

custody’ for practical purposes, he will be entitled to the full

panoply of protections prescribed by Miranda.” (internal

quotation marks and citations omitted)).

It is possible, but ultimately of no moment, that the suspects

in Riley and Rawlings were under “custodial” but not “formal”

arrest when they were searched. In Riley, police officers ordered

Riley to dismount his moped and searched his sock only after

three of the officers had surrounded him in such a way that he

“couldn’t have moved without actually making contact with”

one of them. Riley, 351 F.3d at 1267. The court noted the

seizure (of Riley’s person) that preceded the search might have

been deemed an investigative stop pursuant to Terry v. Ohio,

392 U.S. 1, 20 (1968), but for reasons that “elude[d]” the court,

the Government conceded the initial seizure was not a Terry

stop. 351 F.3d at 1267. The court therefore treated the

encounter as an “arrest” as of the moment the officers

“converged on the moped.” Id. In Rawlings, the suspect was

“detained” at the residence he was visiting and not permitted,

unless he would consent to a body search, to leave for the 45

minutes it took the police to obtain a search warrant. 448 U.S.

at 100. After the officers returned with the warrant, Rawlings

admitted ownership of drugs found in another guest’s purse. Id.

at 100-01. Having established probable cause to arrest

Rawlings, the officers first searched him and then placed him

under arrest. Id. at 101. The Supreme Court expressly reserved

the question whether the temporary detention of the occupants

4

of the house was a lawful seizure that was “less intrusive than a

traditional arrest,” id. at 110 & n.5, i.e. something less than a

custodial arrest, but assumed for the sake of argument it was an

“illegal detention,” id. at 106.

Whether the suspects in Riley and Rawlings were under

custodial arrest when they were searched, however, is of no

moment. Neither the Supreme Court in Rawlings nor this court

in Riley suggested its upholding the search turned upon the

suspect being in custody before the search. Instead, the

Supreme Court in Rawlings said only that the “formal arrest”

must follow “quickly on the heels of the challenged search,” id.

at 111, -- as happened here -- and this court in Riley held it was

“of no import that the search came before the actual arrest” if the

“actual arrest” followed quickly thereafter, 351 F.3d at 1269, --

again, as happened here.

The Court nonetheless seems to find implicit in these

decisions the requirement that the search follow the custodial

arrest because to hold otherwise would “sever” the search-

incident-to-arrest exception to the warrant requirement “from its

two historical rationales” -- protection of the officer’s safety and

preservation of evidence -- which are not “triggered” until “an

encounter ripens into an arrest,” that is, the suspect is taken into

custody. Ct. Op. at 8. But that is not correct. If anything, each

rationale is stronger before the police take a suspect into custody

than afterwards, and certainly more so than after the suspect has

been taken into custody, handcuffed, and locked away in the

back seat of a squad car. See, e.g., Thornton v. United States,

541 U.S. 615, 618 (2004) (upholding search under Belton where

officer “handcuffed petitioner, informed him that he was under

arrest, and placed him in the back seat of the patrol car” before

searching the vehicle); see also id. at 627-28 (Scalia, J.,

concurring) (noting cases upholding search after suspect is

handcuffed and secured in back of squad car “are legion” and

5

mordantly criticizing application of Belton to suspects who no

longer pose a danger to police). By searching the suspect before

they arrest him, the officers can secure any weapon he might

otherwise have used to resist arrest or any evidence he might

otherwise have destroyed if he got the opportunity.

Nor, contrary to the opinion for the Court, is the search in

this case inconsistent with Knowles v. Iowa, 525 U.S. 113

(1998). Had the officers failed to arrest Powell and merely

issued him a citation, then under Knowles the search would be

invalid. 525 U.S. at 117 (“The threat to officer safety from

issuing a traffic citation ... is a good deal less than in the case of

a custodial arrest”). It is neither the Government’s position nor

mine that “probable cause to arrest is alone sufficient for the

exception under Belton to apply.” See Ct. Op. at 7, 12. It is the

“fact of the arrest” that makes all the difference. Id. (quoting

United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (“The

danger to the police officer flows from the fact of the arrest, and

its attendant proximity, stress, and uncertainty”)); see also

Washington v. Chrisman, 455 U.S. 1, 7 (1982) (“Every arrest

must be presumed to present a risk of danger to the arresting

officer”). Therefore, a search may be “incident” to an arrest

regardless of the order in which the police proceed.*

Because I believe the search in this case was “incident to

arrest” as the Supreme Court has explicated that phrase, I would

go on to the question whether the officers had reason to believe

*

This is not, however, as the Court suggests, a “blank check”

for the police to search the car whenever a driver has committed an

arrestable offense. Ct. Op. at 13. The police must still complete the

arrest, thereby subjecting themselves to a time-consuming procedure

and to “the extended exposure” to danger inherent in “the taking of a

suspect into custody and transporting him to the police station.”

Knowles, 525 U.S. at 117 (quoting Robinson, 414 U.S. at 234-35).

6

Powell was a “recent occupant” of the vehicle. See Thornton,

541 U.S. at 622 (“Belton allows police to search the passenger

compartment of a vehicle incident to a lawful custodial arrest of

both ‘occupants’ and ‘recent occupants’” (quoting Belton, 453

U.S. at 460)). I believe they did. The only reasonable

conclusion, upon finding two men urinating at night in an

industrial area a “few feet” from a car, the only occupant of

which was sitting in a passenger seat, is that the two men were

recent occupants of the car. Accordingly, I would uphold the

conviction.

I respectfully dissent.