search "which occurred around ten minutes after [defendant] was arrested, was not 'so separated in time or by intervening events that the [search] cannot be fairly said to have been incident to the [arrest]. "
How later courts described this case
- search "which occurred around ten minutes after [defendant] was arrested, was not 'so separated in time or by intervening events that the [search] cannot be fairly said to have been incident to the [arrest]. "
- upholding search of arrestee's car conducted after he had been handcuffed and placed in patrol car
- upholding search of arrestee’s car conducted after he had been handcuffed and placed in patrol ear
- “As long as the arrest of an occupant of a car is lawful, a search of the passenger compartment is reasonable.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2007 Decided February 20, 2007
No. 05-3156
UNITED STATES OF AMERICA,
APPELLEE
v.
STERLING MAPP,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00449-01)
Ketanji B. Jackson, Assistant Federal Public Defender,
argued the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief for the appellant. Neil H. Jaffee and Tony
Axam, Jr., Assistant Federal Public Defenders, entered
appearances.
Ann K. H. Simon, Assistant United States Attorney, argued
the cause for the appellee. Jeffrey A. Taylor, United States
Attorney, and Roy W. McLeese III and William B. Wiegand,
Assistant United States Attorneys, were on brief for the appellee.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
2
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Sterling Mapp
(Mapp) was indicted on one charge of possessing with intent to
distribute more than one hundred grams of phencyclidine (PCP)
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Mapp
moved to suppress evidence, arguing that the arresting officers’
search of his vehicle—and discovery of PCP—was not
conducted “incident to a lawful arrest” and therefore excepted
from the Fourth Amendment’s warrant requirement under
Thornton v. United States, 541 U.S. 615 (2004). The district
court denied the motion and Mapp entered a conditional guilty
plea, reserving the right to appeal the district court’s order.
Mapp now appeals. As detailed below, we affirm the district
court’s order denying Mapp’s motion to suppress.
I.
On September 6, 2004, United States Park Police Officer
James Dowd (Dowd) was in his patrol car in the left-turn lane
northbound on Martin Luther King Avenue in southeast
Washington, D.C. Although the traffic signal showed “a green
arrow allowing the left traffic lane to turn left,” the Cadillac in
front of Dowd—the first car in the turning lane—did not turn
left. 5/2/05 Tr. 11. Instead, the Cadillac allowed “the left-turn
green arrow [to] expire[]” and “southbound traffic began to
move southbound through the intersection.” Id. At that point,
the Cadillac quickly turned left without yielding to southbound
traffic, see id., and caused southbound “cars to slam on their
brakes.” Factual Proffer in Support of Guilty Plea (Factual
Proffer), reprinted in Mapp Appendix (App.) at 46. After
witnessing this maneuver, Dowd followed the Cadillac onto
Malcolm X Avenue and radioed the Park Police station for a
registration check.
3
Before receiving a response to his inquiry, Dowd observed
the Cadillac quickly pull to a stop on the right side of the street.
Dowd responded by pulling his car alongside the Cadillac as its
driver—Mapp—began to exit the vehicle and Dowd “informed
the driver that he committed a traffic violation” at the last
intersection. 5/2/05 Tr. 13. At the same time, a woman—later
identified as Keisha Napper (Napper)—exited the passenger side
of the Cadillac. Dowd reversed his police cruiser in order to
park directly behind the Cadillac, “basically . . . like a normal
traffic stop.” Id. at 14. As Dowd parked, Mapp began walking
toward him. Getting out of the cruiser, Dowd asked Mapp for
his license and registration and Mapp, continuing to approach
Dowd, began feeling around his clothing as if searching for his
license. At this point, Dowd noticed Napper walking away from
the Cadillac with “a bunch of kids.” Id. at 16.
As Mapp approached him, Dowd instructed Mapp to stop
reaching around and, when Mapp nonetheless continued to do so,
Dowd became “a little nervous” and ordered Mapp to place his
hands on the cruiser’s hood. Id. at 14. Finally, Mapp responded
that he did not have a driver’s license and Dowd placed him
under arrest for failure to display a permit, a violation of D.C.
Mun. Regs. tit. 18 §§ 100.2 and 421.1. After arresting Mapp,
Dowd placed him in the back seat of the cruiser and asked Mapp
for his car keys, intending to “do a search incident to arrest.” Id.
at 18. Mapp responded that Napper had taken the keys. Id. at
17. About this time, Napper returned, explaining that “she had
put the keys with her kids.” Id. Two other Park Police officers
who had responded to the scene went with Napper to retrieve the
keys. The officers returned with Napper within “approximately
five minutes,” id. at 34, but without the keys because Napper told
them that “she forgot where she put her kids,” id. at 17.
Ultimately, the police discovered that the rear passenger’s side
door was unlocked and began searching the vehicle.
4
Dowd opened the front passenger door and “immediately
[noticed] a black plastic bag . . . [on] the center console” between
the driver’s and passenger’s seats. Id. at 19. Inside the bag
Dowd observed eight bottles containing a brownish-yellow
liquid that he suspected—from past experience—to contain PCP.
See 9/9/04 Tr. 9. Knowing PCP “to be somewhat dangerous,”
Dowd asked Napper what was in the bottles and Napper
responded, “I think it’s drugs.” Id. at 10–11. Thus, “[b]etween
the color [of the liquid], the way they were packaged, and her
statements, [Dowd] was fairly certain that [he] was dealing with
PCP.” Id. at 11.1 At that point, he arrested Mapp and Napper for
possessing PCP with intent to distribute and transported them to
a Park Police station.2
On October 7, 2004, a grand jury charged Mapp on one count
of possessing with intent to distribute one hundred grams or
more of PCP in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
Mapp subsequently moved to suppress the PCP recovered from
his car “as the fruit of an illegal seizure and search.” Mot. to
Suppress Physical Evid. and Statements (Mot. to Suppress),
reprinted in App. at 22. Mapp argued that the circumstances of
his arrest neither posed a threat of evidence destruction nor
endangered the safety of the arresting officers because “Mapp
was handcuffed and under police control before the search took
place.” App. at 26 (emphasis in original). Relying on language
contained in a concurring opinion in Thornton, 541 U.S. at 625,
1
The Drug Enforcement Administration (DEA) subsequently
tested the contents of the bottles and confirmed that they consisted of
107.8 grams of PCP. See Factual Proffer at App. 46.
2
At the station, Mapp was also given two traffic citations, one for
failure to yield and another for failure to display a “permit.”
See 5/2/05 Tr. 16.
5
Mapp asserted that a vehicle search is not incident to the arrest
of a recent occupant of the vehicle unless the police have reason
to “believe that evidence of the crime for which they are
arresting the person will be in the car.” 5/2/05 Tr. 68. But the
district court declined “to look through the lens of the concurring
opinion” because “the majority was clear” that the police can
“search a vehicle when somebody has been arrested, even if that
person is out of the vehicle at the time of the first contact.” Id.
at 90.3 Accordingly, the district court found the search of
Mapp’s car incident to his lawful arrest and denied the motion to
suppress. Mapp entered a conditional guilty plea and the district
court sentenced him to sixty-one months’ imprisonment. Mapp
filed his notice of appeal on September 16, 2005.
II.
The Fourth Amendment to the United States Constitution
prohibits police from “conduct[ing] a search unless they first
convince a neutral magistrate that there is probable cause to do
so” and obtain a warrant. New York v. Belton, 453 U.S. 454, 457
3
The district court rejected Mapp’s proposed rule by noting that
“when a person cannot produce a driver’s license and registration for
the vehicle, . . . it is appropriate for [arresting officers] to search [the
car] to find out whose vehicle it is,” 5/2/05 Tr. 69, and thus Dowd had
reason to believe the car contained evidence—such as the vehicle
registration—relevant to the crime of arrest, Mapp’s failure to present
a license or registration, see id. at 68–70. The district court also
emphasized the “very suspicious” circumstances of Mapp’s actions,
id. at 90, suggesting that Dowd had reason to suspect either
destructible evidence or weapons were in the vehicle given Napper’s
removal of the keys, see id. at 96–97. The district court also suggested
that when Mapp exited his car and began walking toward Dowd,
Dowd “would have a reason to believe [Mapp] was seeking to try to
separate himself from the vehicle for some reason.” Id. at 91.
6
(1981); see also U.S. Const. amend. IV. A warrantless search is
permitted, however, if it occurs “incident to a lawful arrest.”
See, e.g., United States v. Robinson, 414 U.S. 218, 224 (1973).
“To qualify for the exception, (i) the arrest must be lawful, and
(ii) the subsequent search must not exceed the scope permitted
by the exception.” United States v. Wesley, 293 F.3d 541, 545
(D.C. Cir. 2002). Mapp challenges the search of his car under
both criteria. In reviewing the district court’s suppression order,
“we review de novo the district court’s conclusions of law.” Id.
In contrast, we “review findings of historical fact only for clear
error and . . . give due weight to inferences drawn from those
facts.” Ornelas v. United States, 517 U.S. 690, 699 (1996).
A.
“To have been lawful, the arrest must have been based upon
probable cause to believe that a crime was being committed.”
Wesley, 293 F.3d at 545. A lawful arrest can be based on a
misdemeanor offense punishable only by a fine. See Atwater v.
City of Lago Vista, 532 U.S. 318, 323, 354 (2001). Moreover,
“[a]s a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that
a traffic violation has occurred.” Whren v. United States, 517
U.S. 806, 810 (1996). In determining whether probable cause
existed, a reviewing court does not consider “the actual
motivations of the individual officers involved.” Id. at 813.
Mapp first argues that “the alleged D.C. traffic infraction . . .
was not supported by probable cause” because “Officer Dowd
was able to make the left hand turn behind [him]” onto Malcolm
X Avenue. Appellant’s Br. at 47, 46.4 The record, however,
4
The Government contends that Mapp waived his probable cause
argument “because it was not presented to the district court.”
Appellee’s Br. at 31. Although Mapp focused below on the proper
7
indicates that Dowd had probable cause to arrest Mapp for
failure to yield. Dowd observed Mapp making an abrupt turn
after the green turn signal had expired, causing oncoming traffic
to “slam on their brakes,” Factual Proffer at App. 46, in order to
avoid an accident. 5/2/05 Tr. 10–12. That maneuver provided
Dowd with probable cause to believe that a traffic
violation—failure to yield—had occurred, see D.C. Mun. Regs.
tit. 18 § 2208.2,5 and thus to arrest Mapp, see Atwater, 532 U.S.
at 354. Mapp contends that his left turn did not create “an
immediate hazard” to oncoming traffic, and thus did not
constitute an offense, because Dowd managed to turn
immediately behind him. See Appellant’s Br. at 46. But Mapp’s
contention does not make implausible Dowd’s account of the
hazard created by Mapp’s left turn. Indeed, it is reasonable to
conclude that, after slamming on their brakes to avoid colliding
with Mapp, oncoming traffic also paused in the intersection long
scope of a search incident to arrest under Thornton, see Mot. to
Suppress at App. 24–26; 5/2/05 Tr. 67–95, his motion asserted that
“there was no probable cause to support [Mapp’s] arrest.” Mot. to
Suppress at App. 24. At the suppression hearing, Mapp elicited
testimony regarding Dowd’s ability to follow Mapp through the
intersection, see 5/2/05 Tr. 27, laying the foundation for his argument
that, because “Officer Dowd was able to make the left hand turn
behind [Mapp] in the ordinary course, . . . then [Mapp’s] actions in
turning the car had not created ‘an immediate hazard.’ ” Appellant’s
Br. at 46. This is sufficient for us to conclude Mapp did not waive his
probable cause argument. Cf. United States v. Redman, 331 F.3d 982,
986–87 (D.C. Cir. 2003) (defendant waived challenge by changing
legal theories at hearing and expressly abandoning initial argument).
5
Dowd learned of a second traffic violation supporting Mapp’s
arrest, namely failure to show a driver’s license, see 5/2/05 Tr. 16,
after he stopped Mapp.
8
enough to permit the police cruiser to pursue Mapp. See United
States v. Broadie, 452 F.3d 875, 880 (D.C. Cir. 2006); United
States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006) (“[A]
credibility determination will be found clearly erroneous only if
the district court has chosen to credit exceedingly improbable
testimony.” (internal quotations omitted)). Accordingly, we
conclude that Dowd had probable cause to stop Mapp’s car.6
B.
“It is well settled that a search incident to a lawful arrest is a
traditional exception to the warrant requirement of the Fourth
Amendment.” Robinson, 414 U.S. at 224. The Supreme Court
outlined “the permissible scope under the Fourth Amendment of
a search incident to a lawful arrest” in Chimel v. California, 395
U.S. 752, 753 (1969). In Chimel, the Court gave two
justifications for a search incident to a lawful arrest. See id. at
762–63. Specifically:
When an arrest is made, it is reasonable for the arresting
officer to search the person arrested in order to remove
any weapons that the latter might seek to use in order to
6
Mapp also appears to question Dowd’s subjective motivation in
initiating a traffic stop, describing “the manifestly spurious nature of
the alleged traffic violation.” Appellant’s Br. at 44; see also id. at 47
(citing United States v. Bullock, 215 F. Supp. 2d 174, 177 (D.D.C.
2002) (traffic stop was mere pretext)). But the Supreme Court in
Whren rejected the suggestion that “the constitutional reasonableness
of traffic stops depends on the actual motivations of the individual
officers involved.” 517 U.S. at 813; cf. Scott v. United States, 436
U.S. 128, 137 (1978) (“[A]lmost without exception in evaluating
alleged violations of the Fourth Amendment the Court has first
undertaken an objective assessment of an officer’s actions in light of
the facts and circumstances then known to him.” (emphasis added)).
9
resist arrest or effect his escape. Otherwise, the officer’s
safety might well be endangered . . . . In addition, it is
entirely reasonable for the arresting officer to search for
and seize any evidence on the arrestee’s person in order
to prevent its concealment or destruction. And the area
into which an arrestee might reach in order to grab a
weapon or evidentiary items must, of course, be
governed by a like rule.
Id. Thus, a search incident to a lawful arrest includes both the
arrestee and his immediate surroundings and is justified by the
twin rationales of officer safety and preservation of evidence.
The Court clarified the scope of the exception in Robinson,
414 U.S. at 220–23, a case involving a search of a traffic
offender. At the outset, the Court refused to limit the “incident
to arrest” exception to the “probable fruits or further evidence of
the particular crime for which the arrest [was] made.” Id. at 234.
It held that “[t]he authority to search the person incident to a
lawful custodial arrest, while based upon the need to disarm and
to discover evidence, 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.” Id. at 235.
Instead, the Court crafted a bright-line rule: once an individual
is lawfully arrested, both he and his immediate surroundings may
be searched consistent with the Fourth Amendment. See id. (“It
is the fact of the lawful arrest which establishes the authority to
search . . . .”).
Believing a “familiar standard is essential to guide police
officers, who have only limited time and expertise to reflect on
and balance the . . . interests involved in the specific
circumstances they confront,” Belton, 453 U.S. at 458 (internal
quotation omitted), the Court continued to follow the Robinson
path by establishing another bright-line rule in Belton. Because
10
“articles inside . . . the passenger compartment of an automobile
are in fact generally, even if not inevitably, within ‘the area into
which an arrestee might reach in order to grab a weapon or
eviden[ce],’ ” id. at 460 (quoting Chimel, 395 U.S. at 763), the
Court held “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. (footnote omitted). In
addition, the Court iterated Robinson’s holding that a lawful
search incident to arrest does not depend upon a case-by-case
inquiry into the likelihood that weapons or evidence would in
fact be found during the search. Id. As long as the arrest of an
occupant of a car is lawful, a search of the passenger
compartment is reasonable. “Accordingly, even though the
reasons for conducting a search incident to arrest, namely ‘to
disarm and to discover evidence,’ may be stronger in some
situations than in others, the Government is not obliged to justify
each such search in the particular context in which it occurs.”
United States v. Abdul-Saboor, 85 F.3d 664, 667 (D.C. Cir.
1996).
In Thornton, the Supreme Court declared another bright-line
rule governing the scope of a search incident to arrest. In that
case, the defendant exited his vehicle before the police made
contact with him, presenting the issue “whether Belton’s rule is
limited to situations where the officer makes contact with the
occupant while the occupant is inside the vehicle.” 541 U.S. at
617. The Court determined that “[i]n all relevant aspects, the
arrest of a suspect who is next to a vehicle presents identical
concerns regarding officer safety and the destruction of evidence
as the arrest of one who is inside the vehicle.” Id. at 621. Indeed,
A custodial arrest is fluid and ‘[t]he danger to the police
officer flows from the fact of the arrest, and its attendant
proximity, stress, and uncertainty.’ The stress is no less
11
merely because the arrestee exited his car before the
officer initiated contact, nor is an arrestee less likely to
attempt to lunge for a weapon or to destroy evidence if
he is outside of . . . the vehicle. In either case, the officer
faces a highly volatile situation. It would make little
sense to apply two different rules to what is, at bottom,
the same situation.
Id. (quoting Robinson, 414 U.S. at 234–35 & n.5) (emphasis and
alteration in original) (internal citations omitted). Consequently,
the Court “conclude[d] that Belton governs even when an officer
does not make contact until the person arrested has left the
vehicle.” Id. at 617.
Moreover, the Court continued to stress the need for a bright-
line rule “readily understood by police officers and not
depending on differing estimates of what items were or were not
within reach of an arrestee at any particular moment.” Id. at
622–23. Thus, once the police have probable cause to arrest a
“recent occupant” of a vehicle, “it is reasonable to allow officers
to ensure their safety and to preserve evidence by searching the
entire passenger compartment,” id. at 623, noting that “an
arrestee’s status as a ‘recent occupant’ may turn on his temporal
or spatial relationship to the car at the time of the arrest and
search,” id. at 622.
According to the record, Dowd’s first contact with Mapp
occurred as Mapp exited his vehicle, 5/2/05 Tr. at 13–14; Dowd
then arrested Mapp at the hood of Dowd’s police cruiser, id. at
14–15, which was parked behind Mapp’s vehicle, id. at 14.
Thus, Mapp was close enough to his car to justify the search.
See Michigan v. Long, 463 U.S. 1032, 1035 & n.1 (1983) (noting
officers could have searched passenger compartment of car under
Belton where occupant “met the deputies at the rear of the car”);
United States v. Poggemiller, 375 F.3d 686, 687–88 (8th Cir.
12
2004) (defendant was recent occupant when arrested ten to
fifteen feet from his car); cf. Wesley, 293 F.3d at 549 (“[T]he
police may search the passenger compartment of the vehicle
without regard to whether the occupant was removed and
secured at the time of the search.”). Further, the search of
Mapp’s car, which occurred around ten minutes after he was
arrested, was not “so separated in time or by intervening events
that the [search] cannot fairly be said to have been incident to the
[arrest].”7 Abdul-Saboor, 85 F.3d at 668; see United States v.
Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (ten to fifteen
minute delay contemporaneous); cf. In re Six Hundred Thirty-
Nine Thousand Five Hundred and Fifty-Eight Dollars in U. S.
Currency, 955 F.2d 712, 717–18, 717 n.7 (D.C. Cir. 1992)
7
This time estimate comes from Dowd’s description of Napper’s
movements. First, Dowd noticed Napper leaving the scene with her
children as Mapp approached him (before Mapp’s arrest). 5/2/05 Tr.
16. Napper returned in “approximately five minutes”—after Mapp’s
arrest for failure to present a driver’s license. Id. at 32–33. At that
point, Dowd asked Napper for the keys to Mapp’s car and she escorted
two officers in a failed attempt to retrieve the keys, returning again in
“approximately five minutes.” Id. at 34. The police then discovered
the unlocked door and began their search. Id. Moreover, Mapp’s
assertion that the search for the car keys was “an extraordinary
‘intervening event[],’ ” Appellant’s Br. at 41 (quoting Abdul-Saboor,
85 F.3d at 668) (alteration in original), fails because the resulting
delay was entirely of Mapp’s and Napper’s making, see 5/2/05 Tr.
17–18. Napper further delayed the search by taking the other officers
to retrieve the keys only to decide that “she forgot where she put her
kids.” Id. at 17. Mapp thus “artificially segments his arrest and the
search; they were, as a practical matter, one continuous event,” Abdul-
Saboor, 85 F.3d at 669, which included an ongoing search for Mapp’s
car keys caused by Mapp’s and Napper’s attempts to frustrate that
effort.
13
(search too remote where it followed arrest by “at least thirty
minutes”). We conclude that Mapp qualifies as a “recent
occupant” under Thornton and, accordingly, we find the search
of Mapp’s vehicle fits easily within the search incident to arrest
exception to the Fourth Amendment’s warrant requirement.
For the foregoing reasons, we affirm the district court’s
denial of Mapp’s motion to suppress.
So ordered.