Opposition Brief — Gilbert Perez, Petitioner v. United States

No. 24-577

In the Supreme Court of the United States

GILBERT PEREZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

ANTOINETTE T. BACON

DAVID M. LIEBERMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether police, after chasing petitioner on foot,

handcuffing him, and placing the backpack that he was

carrying outside his reach, permissibly searched that

backpack five to ten seconds later incident to his arrest.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 5

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Arizona v. Gant, 556 U.S. 332 (2009) ........................... 4, 8-10

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ............ 11

Bembury v. Kentucky, 144 S. Ct. 1459 (2024) ...................... 6

Davis v. United States, 564 U.S. 229 (2011) ................. 16, 17

Greene v. State, 585 S.W.3d 800 (Mo. 2019) ........................ 15

Gustafson v. Florida, 414 U.S. 260 (1973) .............. 4, 7, 8, 10

Riley v. California, 573 U.S. 373 (2014) ..................... 7-11, 16

State v. Brown, 736 S.E.2d 263 (S.C. 2012),

cert. denied, 569 U.S. 1023 (2013) ..................................... 16

State v. Carrawell, 481 S.W.3d 833 (Mo.),

cert. denied, 580 U.S. 847, and 580 U.S. 916 (2016) ......... 15

State v. Ortiz, 539 P.3d 262 (N.M. 2023) ............................. 15

Supervisors v. Stanley, 105 U.S. 305 (1882) ....................... 16

United States v. Brown, No. 20-14750

2021 WL 4955823 (11th Cir. Oct. 26, 2021)....................... 13

United States v. Chadwick, 433 U.S. 1 (1977) ......... 4, 8, 9-11

United States v. Cobb, No. 23-11876,

2024 WL 3874204 (11th Cir. Aug. 20, 2024) ..................... 13

United States v. Cook, 808 F.3d 1195 (9th Cir. 2015) ........ 12

United States v. Davis, 997 F.3d 191 (4th Cir. 2021) ... 13, 14

United States v. Eatherton, 519 F.2d 603

(1st Cir.), cert. denied, 423 U.S. 987 (1975) ............ 3, 11, 17

(III)

IV

Cases—Continued:

Page

United States v. Edwards, 415 U.S. 800 (1974) .................. 10

United States v. Ferebee, 957 F.3d 406 (4th Cir. 2020) ...... 13

United States v. Hill, 818 F.3d 289 (7th Cir. 2016) ............ 13

United States v. Izurieta,

710 F.3d 1176 (11th Cir. 2013) ........................................... 13

United States v. Knapp,

917 F.3d 1161 (10th Cir. 2019) ........................................... 14

United States v. Parra, 2 F.3d 1058 (10th Cir.),

cert. denied, 510 U.S. 1026 (1993) ..................................... 14

United States v. Perdoma,

621 F.3d 745 (8th Cir. 2010),

cert. denied, 563 U.S. 992 (2011) .................................. 12-13

United States v. Robinson, 414 U.S. 218 (1973) ... 4, 7, 10, 11

United States v. Shakir, 616 F.3d 315 (3d Cir.),

cert. denied, 562 U.S. 1116 (2010) ..................................... 12

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 13

Constitution and statutes:

U.S. Const. Amend. IV......................................... 3, 5-8, 10, 15

21 U.S.C. 841(a)(1) ............................................................... 2, 3

21 U.S.C. 841(b)(1)(B) ......................................................... 2, 3

21 U.S.C. 846 ........................................................................ 2, 3

In the Supreme Court of the United States

No. 24-577

GILBERT PEREZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-49a)

is reported at 89 F.4th 247. The decision and order of

the district court (Pet. App. 50a-61a) is not published in

the Federal Supplement but is available at 2021 WL

2953671.

JURISDICTION

The judgment of the court of appeals was entered on

December 28, 2023. A petition for rehearing was denied

on August 23, 2024 (Pet. App. 62a). The petition for a

writ of certiorari was filed on November 21, 2024. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the District of Maine, petitioner was convicted

(1)

2

on one count of conspiring to distribute and to possess

with intent to distribute fentanyl and cocaine, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B), and 846. Judgment 1. He was sentenced to 60 months of imprisonment, to be followed by four years of supervised release.

Judgment 2-3. The court of appeals affirmed. Pet. App.

1a-49a.

1. On August 30, 2019, a state trooper in Lawrence,

Massachusetts, observed petitioner park a truck with

out-of-state license plates in a McDonald’s parking lot.

Pet. App. 2a. A woman rode in the truck’s passenger

seat. Id. at 51a. Petitioner exited the truck, donned a

backpack, and walked toward a nearby residential area.

Id. at 2a. Minutes later, another officer saw petitioner

exit a taxi and walk back toward the McDonald’s. Id. at

3a. Suspecting a drug deal, the officer stopped the taxi

and found large quantities of cash at the feet of the

taxi’s passenger. Ibid.

When petitioner returned to the McDonald’s parking

lot, the first officer pulled his car into the lot, exited the

car, and shouted “state police.” Pet. App. 3a. Petitioner

began to run from the parking lot, and the officer gave

chase. Ibid. About 20 yards from the parking lot, petitioner tripped and fell, enabling the officer to pin him to

the ground. Ibid. The officer removed petitioner’s

backpack while a different officer handcuffed him. Ibid.

The female passenger, who was still present on the

scene, then “turned around” and “went into the McDonald’s.” D. Ct. Doc. 122, at 125 (June 24, 2021); see Pet.

App. 54a.

The officer placed petitioner’s backpack on a patrol

car, outside petitioner’s reach, and searched the backpack. Pet. App. 3a. The search occurred “within * * *

five, ten seconds” of petitioner’s handcuffing. D. Ct.

3

Doc. 122, at 126. The search uncovered fentanyl and cocaine. Pet. App. 3a.

2. A federal grand jury in the District of Maine returned an indictment charging petitioner with one count

of conspiring to distribute and to possess with intent to

distribute fentanyl and cocaine, in violation of 21 U.S.C.

841(a)(1), 841(b)(1)(B), and 846. Indictment 1-2. Petitioner moved to suppress the drugs found in his backpack. Pet. App. 3a-4a.

The district court denied petitioner’s motion to suppress the drug evidence found in his backpack. Pet.

App. 50a-61a. The court determined “that the warrantless search of [petitioner’s] backpack * * * was appropriate and its contents should not be suppressed.” Id.

at 59a. In so doing, the court relied on the First Circuit’s decision in United States v. Eatherton, 519 F.2d

603, cert. denied, 423 U.S. 987 (1975), which had rejected a defendant’s Fourth Amendment challenge to

the search of a briefcase that he was carrying while arrested. See Pet. App. 56a-57a.

Petitioner subsequently entered a conditional guilty

plea, in which he preserved his right to appeal his conviction based on the district court’s denial of his motion

to suppress. Pet. App. 5a.

3. The court of appeals affirmed. Pet. App. 1a-49a.

a. The court of appeals observed that petitioner did

not dispute that the search of his backpack was lawful

“if Eatherton remains good law.” Pet. App. 5a. Instead,

the court observed, petitioner “contends only that Eatherton” lacks vitality “because of either United States v.

Chadwick, 433 U.S. 1 (1977), or Arizona v. Gant, 556

U.S. 332 (2009), or both together.” Ibid. The court rejected those contentions. See id. at 6a.

4

The court of appeals observed that Eatherton rested

“on the considered judgment” that “a search of a container,” like a briefcase or backpack, “in the hands of an

arrestee at the time of the arrest was no different from

a search of a container in the pocket of an arrestee at

that time,” Pet. App. 13a—which this Court upheld in

United States v. Robinson, 414 U.S. 218 (1973), and

Gustafson v. Florida, 414 U.S. 260 (1973). And the court

of appeals explained that neither United States v. Chadwick, 433 U.S. 1 (1977), nor Arizona v. Gant, 556 U.S.

332 (2009), “undermine[d]” that judgment. Pet. App. 14a.

The court of appeals observed that Chadwick had

held “that the warrantless search of an arrestee’s ‘doublelocked, 200-pound footlocker’ violated the Fourth Amendment when the search of that container was conducted

beyond ‘the area from within which [the arrestees] might

gain possession of a weapon or destructible.’ ” Pet. App.

15a-16a (quoting Chadwick, 433 U.S. at 5) (brackets in

original). And the court explained that “nothing in

Chadwick disturbs” Robinson and Gustafson, which together allow “a search of personal property on the person of the arrestee at the time of the arrest”—which

the 200-pound footlocker in Chadwick was not—“even

after that property [i]s no longer in the arrestee’s area

of immediate control.” Id. at 16a; see Chadwick, 433

U.S. at 4.

The court of appeals then noted that Gant, in turn,

had rejected a rule under which “all personal property

in an automobile was categorically searchable incident

to an occupant’s arrest.” Pet. App. 18a. The court observed, however, that Gant “said nothing about whether

the rule of Robinson * * * governs a container that an

arrestee is carrying at the time of the arrest” because

“Gant did not address carried personal property at all.”

5

Id. at 18a-19a. And the court emphasized that neither

Chadwick nor Gant “even addresses a search of personal property carried by an arrestee at the time of the

arrest, let alone whether and how to distinguish between types of such personal property.” Id. at 27a-28a.

b. Judge Montecalvo dissented. Pet. App. 30a-49a.

She acknowledged that “should Eatherton remain good

law, it is controlling here,” but declined to follow Eatherton on the theory “that the Eatherton panel would have

come to a different conclusion” were the case presented

now. Id. at 31a. And although she recognized the absence

of “a Supreme Court opinion that is directly on point contradicting our precedent in Eatherton,” id. at 40a (citation and internal quotation marks omitted), she nonetheless would have declined to apply the good-faith

exception to the exclusionary rule to the Eathertonpermissible search at issue here, see id. at 46a-49a.

4. The court of appeals denied a petition for rehearing en banc. Pet. App. 62a. In a statement accompanying the denial, Chief Judge Barron, joined by five other

judges, reasoned that “binding Supreme Court precedent * * * categorically allows * * * the warrantless

search of the contents of certain physical containers

that are ‘of the person’ of the arrestee.” Id. at 63a (quoting Robinson, 414 U.S. at 235). But Chief Judge Barron

perceived “great uncertainty * * * about the kinds of

containers that are subject to that categorical rule” and

“urge[d]” this Court to address that topic. Id. at 63a,

66a-67a.

ARGUMENT

Petitioner renews his contention (Pet. 21-27) that the

warrantless search of his backpack incident to his arrest violated the Fourth Amendment. The court of appeals correctly rejected that contention as inconsistent

6

with this Court’s precedents, and its decision does not

meaningfully conflict with any decision of another court

of appeals or a state high court. Furthermore, even if

the question presented otherwise warranted this Court’s

review, this case would be an unsuitable vehicle in which

to resolve it because the good-faith exception to the exclusionary rule would preclude suppression, and petitioner’s conviction would accordingly stand. This Court

recently denied review of a petition for a writ of certiorari presenting a similar question, see Bembury v. Kentucky, 144 S. Ct. 1459 (2024) (No. 23-802), and it should

follow the same course here.

1. a. This Court has 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.” United States v. Robinson, 414 U.S. 218,

235 (1973). An officer’s authority to conduct a search

incident to an 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 upon the person of the suspect.” Ibid. Instead, because an arrest “based on probable cause is a

reasonable intrusion under the Fourth Amendment,” “a

search incident to the arrest requires no additional justification.” Ibid.

Applying those principles, the Court in Robinson

found no Fourth Amendment violation where an officer

“pat[ted] * * * down” an arrestee, “reached into [his]

pocket and pulled out” a “cigarette pack,” and “then

opened the cigarette pack” and found heroin inside. 414

U.S. at 223; see id. at 236. The Court reached that conclusion even though the arresting officer had neither

7

“any subjective fear of the [arrestee]” nor any “susp[icion]

that [the arrestee] was armed.” Id. at 236. Likewise, in

Gustafson v. Florida, 414 U.S. 260 (1973), decided the

same day as Robinson, the Court found no Fourth

Amendment violation where an officer searched a cigarette pack incident to an arrest after the arrestee had

already been placed “in the back seat of the squad car.”

Id. at 262 n.2.

This Court has recently reiterated that “Robinson’s

categorical rule strikes the appropriate balance in the

context of physical objects.” Riley v. California, 573

U.S. 373, 386 (2014). The Court acknowledged that

“[o]nce an officer gained control of the [cigarette] pack”

in Robinson, “it was unlikely that [the arrestee] could

have accessed the pack’s contents.” Id. at 387. But the

Court emphasized that “unknown physical objects may

always pose risks, no matter how slight, during the

tense atmosphere of a custodial arrest.” Ibid. And, in

addition, an arrestee has “reduced privacy interests” in

his objects “upon being taken into police custody” because the search of such objects “constitute[s] only [a]

minor additional intrusion[] compared to the substantial

government authority exercised” in the arrest itself. Id.

at 391-392.

b. The Court’s precedents make clear that police

conducted a lawful search incident to petitioner’s arrest

when they searched the backpack that petitioner was

carrying when he was arrested. Officers “removed [petitioner’s] backpack * * * as [they were] handcuffing

[him],” Pet. App. 3a, just as the officer in Robinson removed the cigarette pack during his arrest of Robinson.

And officers then “placed the backpack” beyond petitioner’s “reaching distance” and searched it, ibid., just

as the officer in Gustafson searched the cigarette pack

8

after Gustafson had already been detained in the patrol

car, 414 U.S. at 262 n.2.

As with any “unknown physical object[],” the backpack here “pose[d] risks” to the officers. Riley, 573 U.S.

at 387. That is particularly true given “the tense atmosphere,” ibid., of petitioner’s flight on foot and custodial

arrest, as well as the presence of an additional potential

accomplice (the passenger in the truck) in the vicinity.

And “any privacy interests retained by [petitioner] after [his] arrest” were “significantly diminished by the

fact of the arrest itself.” Id. at 386. Thus, “Robinson’s

categorical rule” establishes the reasonableness of the

search in this case. Ibid.

2. Petitioner’s contrary arguments (Pet. 21-27) lack

merit. Petitioner primarily relies on this Court’s decisions in United States v. Chadwick, 433 U.S. 1 (1977),

and Arizona v. Gant, 556 U.S. 332 (2009). But as the

court of appeals explained, neither decision “even addresses a search of personal property carried by an arrestee at the time of the arrest, let alone whether and

how to distinguish between types of such personal property.” Pet. App. 27a-28a.

a. In Chadwick, officers arrested two individuals

who had taken a “200-pound footlocker” onto a train.

433 U.S. at 4. The officers then brought the arrestees

and the footlocker to a federal building and, without obtaining a warrant, “opened the footlocker” approximately “an hour and a half after the arrests.” Ibid. The

footlocker contained “[l]arge amounts of” drugs. Id. at

5. This Court found a Fourth Amendment violation, explaining that “[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their

9

exclusive control,” a “search of that property is no

longer an incident of the arrest.” Id. at 15.

Unlike Chadwick, this case involves personal property

—a backpack—“immediately associated with the person of the arrestee.” 433 U.S. at 15; see Riley, 573 U.S.

at 384 (observing that Chadwick “clarified” that the

search-incident-to-arrest exception is “limited to ‘personal property . . . immediately associated with the

person of the arrestee’ ”) (citation omitted). The backpack here was “carried or worn by [petitioner] at the

time of the arrest.” Pet. App. 17a. And it is much closer

in size to the “cigarette package in Robinson” than to

the massive “trunk of the sort held to require a search

warrant in Chadwick.” Riley, 573 U.S. at 394; see Pet.

App. 26a (observing that, unlike the footlocker in Chadwick, “most people can carry a [backpack] and often

have reason to do so”).

b. Gant is even further afield. There, the Court held

that the search-incident-to-arrest exception “does not

authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and

cannot access the interior of the vehicle.” Gant, 556

U.S. at 335. At the same time, the Court “conclude[d]

that circumstances unique to the vehicle context justify

a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle.’ ” Id. at 343 (citation omitted).

As the court of appeals recognized, Gant “concerned

only whether a car may be searched incident to a lawful

arrest of an occupant of the car” and did not “address

carried personal property at all.” Pet. App. 18a-19a.

Gant therefore has “nothing to say about where the line

should be drawn in searches incident to arrest when it

10

comes to things an arrestee carries at the time of the

arrest.” Id. at 19a. If anything, Gant suggests that the

search here complied with the Fourth Amendment because it was surely “reasonable to believe evidence relevant to the crime of arrest might be found” in petitioner’s backpack. 556 U.S. at 335 (citation omitted).

c. Petitioner’s proposed rule is thus untethered from

this Court’s precedents. According to petitioner (Pet. 26),

“[o]nce a container has been secured and the defendant

can no longer reach it, the time for a warrantless search

incident to arrest has ended.” But as previously explained, that approach cannot be squared with Robinson

—where “it was unlikely that [the arrestee] could have

accessed the [cigarette] pack’s contents.” Riley, 573

U.S. at 387; see Robinson, 414 U.S. at 235 (applying categorical, rather than case-specific, approach). Much

less can it be squared with Gustafson, which upheld a

warrantless search incident to an arrest where the defendant had already been placed “in the back seat of [a]

squad car” at the time of the search, 414 U.S. at 262 n.2.

Indeed, as Chadwick itself makes clear, an officer’s

authority to search objects found on an arrestee’s person does not depend on whether the objects remain

within the arrestee’s reach—or what a court might later

decide was the arrestee’s reach. Chadwick specifically

identifies not only the search in Robinson, but also the

search in United States v. Edwards, 415 U.S. 800 (1974),

as permissible searches “of the person.” Chadwick, 433

U.S. at 16 n.10. And Edwards upheld the warrantless

search of an arrestee’s clothing hours after he had already been jailed. See 415 U.S. at 801, 808-809. What

matters is whether a particular item was on the arrestee’s person at the time of his arrest—not whether

11

the officer is (prudently) out of range of the arrestee at

the time of the search.

d. Finally, it is this Court’s longstanding categorical

rule—not petitioner’s rule—that is “straightforward

and workable.” Pet. 26. Under the former, a warrantless search incident to an arrest is authorized as to “personal property . . . immediately associated with the

person of the arrestee.” Riley, 573 U.S. at 384 (quoting

Chadwick, 433 U.S. at 15). That bright-line distinction

“provid[es] clear guidance to law enforcement.” Id. at

398. And such categorical rules are critical in this context because “the Fourth Amendment has to be applied

[by officers] on the spur (and in the heat) of the moment.” Atwater v. City of Lago Vista, 532 U.S. 318, 347

(2001); see Robinson, 414 U.S. at 235.

Petitioner’s position, in contrast, would subject officers to armchair second-guessing about how possible it

was for an arrestee (or an accomplice) to reach the container that the officer searched—an approach the Court

prudently avoided in Robinson. See 414 U.S. at 235; see

also Riley, 573 U.S. at 384. It would also require officers to distinguish between searches of various objects—

from cigarette packs (permissible), to backpacks (impermissible), to everything in between. Petitioner offers no principled basis on which to draw such distinctions. As the First Circuit has explained, “[w]hile a

briefcase may be a different order of container from a

cigarette box, it is not easy to rest a principled articulation of the reach of the Fourth Amendment upon the

distinction.” United States v. Eatherton, 519 F.2d 603,

610, cert. denied, 423 U.S. 987 (1975).

3. Petitioner notes (Pet. 8-16) that different courts

analyze the type of fact pattern here through different

12

analytical frameworks. For instance, some courts maintain that Gant applies beyond the context of vehicle

searches and requires consideration of “a suspect’s ability (or inability) to access weapons or destroy evidence

at the time a search incident to arrest is conducted,”

United States v. Shakir, 616 F.3d 315, 318 (3d Cir.

2010), cert. denied, 562 U.S. 1116 (2010), whereas the

court of appeals here found Gant inapposite, Pet. App.

18a. But petitioner has not established that such analytical differences routinely produce different outcomes

—nor has he shown that any other court would have

reached a different result on the facts of this case. See

Shakir, 616 F.3d at 321 (emphasizing that its standard

remains “lenient”). Accordingly, there is no meaningful

conflict warranting this Court’s review.

Four of the federal decisions upon which petitioner

relies upheld searches incident to arrests on facts analogous to those here, and thus do not reach results in

conflict with the result below. In Shakir, the Third Circuit found that a search of an arrestee’s bag was reasonable where the arrestee “was handcuffed and guarded

by two policem[e]n,” “one suspected confederate” was

nearby, and the officer “did not leave the scene before

searching the bag.” 616 F.3d at 319, 321. In United

States v. Cook, 808 F.3d 1195 (2015), the Ninth Circuit

found that a search of an arrestee’s backpack was reasonable where the arrestee was “face down on the

ground with his hands cuffed behind his back,” and the

officer stopped the search after “determin[ing] that the

backpack contained no weapons.” Id. at 1199-1200. In

United States v. Perdoma, 621 F.3d 745 (2010), cert. denied, 563 U.S. 992 (2011), the Eighth Circuit found that

a search of an arrestee’s bag was reasonable where “the

bag was ‘beyond his reach’ because he was restrained

13

and a police officer had taken control of the bag.” Id. at

750. And in United States v. Hill, 818 F.3d 289 (2016),

the Seventh Circuit found that a search of an arrestee’s

bag was reasonable where he had been detained and

taken to “an interview room.” Id. at 293; see id. at 295.*

The Fourth and Tenth Circuit decisions on which petitioner relies (Pet. 9-10) held searches unreasonable,

but involved factual circumstances distinct from those

at issue here. In United States v. Davis, 997 F.3d 191

(2021), the Fourth Circuit deemed the search of an arrestee’s backpack unreasonable where the arrestee

“was face down on the ground,” “handcuffed with his

hands behind his back,” “outnumbered” by officers “three

to one,” and where the arrest “took place in a residential

area” with “no one else around to distract the officers.”

Id. at 198. At the same time, the court distinguished the

Fourth Circuit’s prior decision in United States v. Ferebee, 957 F.3d 406 (2020), which found a search of an arrestee’s backpack reasonable where the arrestee was

“handcuffed” but not “face-down” and thus could have

*

Petitioner also cites (Pet. 10) the Eleventh Circuit’s unpublished

disposition in United States v. Brown, No. 20-14750, 2021 WL

4955823 (Oct. 26, 2021) (per curiam), in which the court deemed a

search of a bag unreasonable. But “[u]npublished opinions are not

binding precedent” in the Eleventh Circuit, United States v. Izurieta, 710 F.3d 1176, 1179 (2013), so panels are free to disagree with

Brown. Indeed, in a more recent unpublished decision, the Eleventh Circuit upheld a search of an arrestee’s backpack even though

the arrestee “was handcuffed and surrounded by several officers.”

United States v. Cobb, No. 23-11876, 2024 WL 3874204, at *1 (Aug.

20, 2024) (per curiam); see id. at *2. Any variance in nonprecedential decisions issued by panels within the same circuit does not warrant this Court’s review. See Wisniewski v. United States, 353 U.S.

901, 902 (1957) (per curiam) (“It is primarily the task of a Court of

Appeals to reconcile its internal difficulties.”).

14

potentially still “access[ed] his bag.” Davis, 997 F.3d at

199. This case more closely resembles Ferebee than

Davis: petitioner was seated when handcuffed (not face

down); the arrest occurred in a McDonald’s parking lot

with other people present; and the passenger in petitioner’s car had not been secured when officers conducted the search. See Pet. App. 3a, 51a, 54a. Thus, the

Fourth Circuit’s decision in Davis would not be controlling on the facts here.

And in United States v. Knapp, 917 F.3d 1161 (2019),

the Tenth Circuit deemed the search of an arrestee’s

purse unreasonable where the arrestee’s “hands [were]

cuffed behind her back,” one officer “was next to her”

and “two other officers were nearby,” and the “purse

was closed” and in the officers’ “exclusive possession.”

Id. at 1169. In so doing, however, the court applied a

multifactor test focused in part on “the relative number

of arrestees and officers present,” as well as “the relative positions of the arrestees, officers, and the place to

be searched.” Id. at 1168-1169. And the court distinguished a prior Tenth Circuit decision on the ground

that it involved “two arrestees” rather than one. Id. at

1169 (discussing United States v. Parra, 2 F.3d 1058

(10th Cir.), cert. denied, 510 U.S. 1026 (1993)). Here,

only two officers were present for the arrest, and the

passenger from petitioner’s vehicle was unsecured and

remained in the vicinity of the parking lot. See Pet.

App. 51a, 54a. The Tenth Circuit’s test would give significant weight to those facts—and thus may have produced the same result as the decision below.

Petitioner’s survey (Pet. 11-12) of state supreme

court decisions likewise fails to establish a conflict worthy of this Court’s review. Contrary to petitioner’s assertion (Pet. 11), Missouri precedent aligns with the

15

First Circuit’s approach here. In Greene v. State, 585

S.W.3d 800 (2019), the Supreme Court of Missouri explained that “the holdings in Robinson[ and] Gustafson

* * * establish the fact of a lawful arrest is sufficient to

justify a reasonably delayed search of items found on a

defendant’s person at the time of the arrest.” Id. at 808.

And applying that rule, the court upheld the search of a

cigarette pack found in an arrestee’s pocket even though

the search did not occur “until 30 minutes” after the officers had “secured[]” the arrestee and “placed the pack

in a separate room.” Id. at 805. While petitioner relies

(Pet. 11) on the Supreme Court of Missouri’s prior decision in State v. Carrawell, 481 S.W.3d 833, cert. denied, 580 U.S. 847, and 580 U.S. 916 (2016), the court in

Greene disavowed Carawell’s analysis of Robinson and

Gustafson, making clear that any contrary statements

in Carawell “should no longer be followed.” Greene, 585

S.W.3d at 808.

In State v. Ortiz, 539 P.3d 262 (2023), the Supreme

Court of New Mexico “adopt[ed]” “the rationale of [the

Tenth Circuit in] Knapp” to conclude that the search of

an arrestee’s purse violated the Fourth Amendment.

Id. at 267. As already explained, however, any analytical tension between Knapp and the decision below does

not warrant this Court’s review because it is not clear

that the search of petitioner’s backpack would be impermissible under Knapp’s multifactor approach. See

p. 14, supra. Moreover, in Ortiz, there was “limited evidence in the record as to the location of the purse at the

time of arrest, whether it was secured, [and] its distance

from [the] Defendant.” 539 P.3d at 268. Here, in contrast, the record is clear that petitioner was carrying

the backpack when he was arrested and that officers

“removed the backpack from [petitioner] as [they were]

16

handcuffing [petitioner’s] hands behind his back.” Pet.

App. 3a.

Finally, the Supreme Court of South Carolina’s decision in State v. Brown, 736 S.E.2d 263 (2012), cert. denied, 569 U.S. 1023 (2013), does not implicate the question presented. There, a police officer conducted a traffic stop and arrested a passenger for an open-container

violation. Id. at 264. After the arrestee had been handcuffed and placed in the back of the patrol car, the officer searched a bag found in the car and discovered cocaine. Id. at 264-265. The Supreme Court of South Carolina reasoned that, “under Gant, the search of [the arrestee’s] duffel bag was unlawful because [the arrestee]

was handcuffed and placed in the patrol car prior to the

search and, thus, he did not have access to the vehicle

at the time of the search.” Id. at 269. Because Brown

involved “an automobile stop,” id. at 264—not “a search

of the contents of an item found on an arrestee’s person,” Riley, 573 U.S. at 392—it was squarely governed

by Gant, as opposed to Robinson and Gustafson. Brown

therefore does not speak to the question presented

here.

4. Even if the question presented otherwise warranted this Court’s review, this case would be an unsuitable vehicle for considering it because a decision in petitioner’s favor would have no practical effect on his conviction. See Supervisors v. Stanley, 105 U.S. 305, 311

(1882) (explaining that this Court does not grant a writ

of certiorari to “decide abstract questions of law * * *

which, if decided either way, affect no right” of the parties).

“Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to

the exclusionary rule.” Davis v. United States, 564 U.S.

17

229, 232 (2011). Although the majority below had no need

to reach the issue, that standard is easily satisfied here.

At the time of petitioner’s arrest, binding circuit

precedent authorized law enforcement to search his

backpack. In Eatherton, the First Circuit held that FBI

agents had validly searched a suspect’s briefcase incident to his arrest even though the suspect had been

handcuffed and placed in the back of the agents’ vehicle.

519 F.2d at 609-611. The government below cited

Eatherton and argued that, “[b]ased on the precedent

in th[e] Circuit, this was an objectively reasonable

search.” Gov’t C.A. Br. 55. And “[petitioner] ma[de] no

argument that Eatherton c[ould] be distinguished on

the facts.” Pet. App. 28a.

Because the officer who searched petitioner’s backpack “act[ed] with an objectively ‘reasonable good-faith

belief’ that [his] conduct [wa]s lawful” under Eatherton,

Davis, 564 U.S. at 238 (citation omitted), the suppression remedy is unavailable to petitioner. He therefore

has no viable basis on which to challenge his conviction.

To the extent the Court wishes to consider the question

presented, it should await a case in which a decision in

the defendant’s favor could realistically affect his conviction.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

ANTOINETTE T. BACON

DAVID M. LIEBERMAN

Attorneys

FEBRUARY 2024