United States v. Lamar Johnson, 913 F.3d 793

Aug 7, 2015: Officer Simmont stopped Lamar Johnson, smelled burnt/fresh marijuana, observed plastic bags and pill bottles in glove box, and learned Johnson was a felon from dispatch. Johnson stepped out and was searched; officer found a bulletproof vest and arrested him as a felon in possession of body armor. Subsequent searches of car and person uncovered a loaded handgun, drugs, scales, bags, and additional controlled substances.
Mar 16, 2016: Detective Sample obtained a warrant after two controlled buys by a CI linked to Johnson within 20 and 10 days of the affidavit; police observed buys, tested the substance as cocaine, followed Johnson to a house he identified as his, and later searched the house finding firearms, drugs, scales, bags, and cocaine base.
Johnson was indicted on nine counts; after suppression motions were denied and a bench trial, he was convicted on seven counts. At sentencing, the district court applied a +4 level enhancement under U.S.S.G. §3B1.5 for use of body armor.
Johnson appealed: he challenged (1) constitutionality of the warrantless search of his person and car, (2) validity of the residential search warrant, and (3) application of the body-armor enhancement.
The Ninth Circuit reviewed denial of suppression de novo (facts for clear error) and Guidelines interpretation de novo (application for abuse of discretion), and affirmed the convictions and sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Warrantless search of person before arrest	Search-incident-to-arrest cannot precede arrest; allowing it invites pretextual/discriminatory searches	Officer had probable cause to arrest; search was roughly contemporaneous with arrest and thus valid	Search constitutional: probable cause existed and pre-arrest search incident to arrest doctrine applies (Smith rule)
Warrantless search of vehicle	Vehicle search was fruit of illegal person search	Smell of fresh/burnt marijuana gave probable cause for vehicle search; automobile exception applies	Vehicle search valid under automobile exception; not fruit of illegal search
Validity of residential search warrant	Affidavit failed to show probable cause for residence, CI reliability issues, and omitted rock sizes	Affidavit included two observed controlled buys, testing, follow-back to residence, and officer experience—providing a substantial basis	Warrant valid: magistrate had substantial basis; CI corroborated by observed buys; omission of rock size immaterial
Body-armor enhancement at sentencing	"Use" requires more than mere wearing; alternative benign explanation for wearing vest	Commentary defines "use" to include active employment to protect person, which includes wearing; defendant wore vest while in possession of drugs/weapons	Enhancement properly applied: wearing body armor qualifies as "use" and district court did not abuse discretion

Arizona v. Gant, 556 U.S. 332 (search incident to recent occupant of vehicle; scope and vehicle evidence rules)
United States v. Robinson, 414 U.S. 218 (search-incident-to-arrest justification: officer safety and evidence preservation)
Knowles v. Iowa, 525 U.S. 113 (search incident to citation/citation vs. arrest distinction)
Devenpeck v. Alford, 543 U.S. 146 (officer's subjective reason irrelevant so long as facts known establish probable cause)
Rawlings v. Kentucky, 448 U.S. 98 (post-search formal arrest shortly after search does not invalidate search)
United States v. Leon, 468 U.S. 897 (good-faith deference to magistrate probable-cause determinations)
Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances standard for magistrate probable cause)
United States v. Smith, 389 F.3d 944 (9th Cir. 2004) (pre-arrest search may be valid if probable cause existed and arrest followed contemporaneously)
United States v. Terry, 911 F.2d 272 (9th Cir. 1990) (officer's firsthand observations plus experience can supply substantial basis for probable cause to search residence)
Michigan v. DeFillippo, 443 U.S. 31 (probable cause definition for arrests)