UNITED STATES of America, Plaintiff-Appellant, v. John Lee McLAUGHLIN, Defendant-Appellee

short, important believe that because I directly contradicts and prosecutors, hands policy out- judicial and-prosecutorial that issues of principle constitutional important seeking government’s interest weigh most of the “one constitute prior restraints Accord, I would juris our of the Consent known to enforcement extraordinary remedies Ass'n, and of the District Court Press reverse the decision Nebraska prudence,” 2791, recog consent decree which portion “havе been of the find at Near, protected cases.” on Berke’s only exceptional prior acts as a restraint nized thus void under speech S.Ct. 625. unenforceable —and 60(b)(4). Fed.R.Civ.P. Second, in not just importantly, the Consent part of declaring the relevant void, allowing equi- this Court

Decree as a judiciary to be used of the powers

table Berke’s suppressing means of

permanent the Con- rights. Because Amendment

First Order of permanent “a Decree is

sent by the Court as “punishable

Court” by an may also be enforced contempt and America, STATES Agree- UNITED of Plea injunction,” Mem. order Plaintiff-Appellant, ment, it constitutes Tab CR power of the Court’s continuing application such, As future activities. Berke and his McLAUGHLIN, John Lee this Court —has does the District Court —as Defendant-Appellee. its to ensure that continuing obligation no a manner that is not used in powers are No. 98-30027. 60(b)(5) Fed.R.Civ.P. longer equitable. See Appeals, States Court of United judgment from a on (allowing relief Ninth Circuit. “judgment has been satis- grounds released, judg- fied, discharged, prior or a or Nov. Argued and Submitted been re- it is based has upon which ment 16, 1999. Decided March vacated, longer equitable it is no or or versed prospective should have judgment application”). above, is no evidence that there

As noted the three Levine government satisfied maintaining a imposing or for either

criteria First Amendment on Berke’s

prior restraint Accordingly, should Berke choose activities. materials, sexually-explicit again in

to deal to enforce government seek should the Decree, Court would the District

the Consent a court order that upon to enforce

be called

erroneously unjustifiably permanently ‍​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‍rights. Sure- Berke’s constitutional

restricts judicial powers misuse —of

ly, such a use —or policy” that should “public

constitutes

avoided, when fundamental particularly other- at stake. To find rights are

stitutional First sacrifice Berke’s would be to

wise sexually-еxplicit right to deal in finali- affirming the the stake of

material for This, I court order.

ty of an erroneous

believe, not do. we must

Discovery of the drugs additional followed as search; therefore, a result of the initial products of both suppressed. searches were government appeals. juris- haveWe § diction under 18 U.S.C. and we re- verse and remand.

FACTS 8, 1998, August On Gary Officer Bell of the Grande, Oregon, La Department Police ob- Goodman, Daniel S. Depart- United States McLaughlin served driving with ap- what Justice, D.C., Washington, plain- ment of for peared illegally window, to be an tintеd rear tiff-appellant. Oregon violation of law. Officer Bell Needham, Gerald M. Assistant Federal pulled McLaughlin over without incident. Defender, Portland, Oregon, Public for de- McLaughlin Officer Bell asked produce to his fendant-appellee. license, proof driver’s registration, McLaughlin insurance. produced registra- documents, tion notice and insurance but no driver’s license. Officer Bell then called the police dispatcher, responded who McLaughlin’s driver’s status was valid but that he had an outstanding warrant for fail- TROTT, Before: THOMPSON and Circuit ure appear charge to on a driving with a RHOADES, Judges, Judge.* District suspended Upon learning license. of the out- warrant, standing Officer Bell radioed for a Opinion by Judge R. DAVID backup officer. THOMPSON; by Judge Concurrence Eckhart, officer, Officer backup TROTT. ar- rived, McLaughlin told step out of his THOMPSON, DAVID R. Judge: Circuit him under arrest on the A stopped appellee officer John outstanding Lee charge. warrant Officer Bell McLaughlin driving illegally with an tint- patted hаndcuffed and McLaughlin, down ed rear subsequently window and arrested him in the back seat of patrol him on an outstanding warrant. Five min- car. Officer Bell then McLaughlin advised utes officer drove that his car going impounded McLaughlin backup pursuant City La Grande ordinance McLaughlin’s searched car and found a driving brick without insurance. Officer Bell marijuana. obtained, A warrant was and a asked Officer Eckhart to take care of the further search methamphetamine revealed impound, аnd then Bell McLaughlin drove marijuana. and more County the Union Jail.

McLaughlin charged possession with While Officer Bell jail, was in route to the marijuana methamphetamine with in- Officer Eckhart impoundment filled out distribute, tent both in violation of 21 forms. require These forms the officer to 841(a)(1). § U.S.C. grant- driver, district court record information registra- about the ed McLaughlin’s tion, suppress, lienholder, deter- vehicle identification num- mining ber, that the initial warrantless search of and color of the complet- vehiсle. After his car performed contemporaneous- forms, ing these began Officer Eckhart ly with his arrest and therefore could not be began car. He his deemed a search incident to a lawful arrest. search approximately five minutes after Offi- Rhoades, *The Judge designation. Honorable John S. District California, sitting by for the Southern District of this ease does not control Ap- L.Ed.2d McLaughlin. departed Bell had cer be called because it involves into the minutes eleven proximately citation,” not a “search “search incident to be- backpack found a blue Eckhart Officer Thus, New York v. incident to an arrest.” opened it seat. He passenger the front hind 454, 460-61, marijuana. of found ‍​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‍a brick and progeny con- and its 69 L.Ed.2d 768 Bell radioed Officer Eckhart Officer present amendment trol the case without scene, to return to him and asked argues that the government Knowles.2 backpack that the Bell verified Officer bright-line proper under Belton’s search was to Bell returned marijuana. Officer tained may search the rule that a officer to McLaughlin’s consent obtained jail and compartment of an automobile passenger Notwithstanding entire vehicle. search “contemporaneous inci- its containers as a consent, and ob- requested Bell Officer this arrest.” Id. [a lawful] dent of thorough more A a search warrant. tained in agree the search S.Ct. 2860. We because of pounds car uncovered seven of the search series during сase a continuous this occurred methamphet- marijuana, three ounces closely connected in time to the of events in amine, and over marijuana pipe, $1000 a arrest. cash. to underlying of Belton was rationale all evi- McLaughlin moved balancing while provide bright-line a rule any statements from his car dence seized interests: law enforcement privacy and court The district to the officers. he made ... Amend protection the Fourth “[T]he was stop of the ear that determined are only be realized if ‘can ment] because the that but concluded proper, which, in most acting a of rules under set search,1 inventory it not a valid search was instances, a cor possible it to reach makes incident it was a search only be valid if could as to whether rect determination beforehand Holding that the search arrest. to a lawful justified in the inter privacy invasion of is an ” it was because to the arrest was not incident enforcement.’ Id. est of law McLaughlin five minutes commenced omitted). (citations rules Such S.Ct. 2860 away been driven en necessary police officers because of the products suppressed district court “only highway gaged in an arrest on search. on and expertise to reflect limited time and interests and individual balance the social DISCUSSION they specific circumstances involved in the 2860. confront.” Id. at an automobile decide whether must We may bright-line minutes after rule commenced five Becаuse it is a that is search whether the regardless and removed has been arrested invoked a defendant or a “search incident has an actual concern qualifies as officer from the scene evidence, applicability that the we have held at the outset arrest.” We note upon a depend the Belton rule does in Knowles recent decision Supreme Court’s - ability grab items in a car -, Iowa, 142 defendant’s present case be- control the inventory Knowles does not improper as an 1. The search because, Oregon regulations,' out a rule for according to Court carved cause the Knowles search inventory' may conducting an to cita- officer incident an be called a “search packages within the vehicle. open bright-line closed disturb the does not tion." Knowles ap- (citing Belton with at 488 Belton rule. Knowles, police officer issued defendant Instead, Court examined proval). the Knowles speed stopping him a citation after Knowles underlying "search inci- rationales the historical U.S. at -, Knowles,- S.Ct. at ing. See (officer preserva- safety and cases dent arrest” though did not arrest the officer 486. Even Knowles, evidence) guidance “search provide in tion of search of full the officer cases, holding that to citation” incident or consent without Knowles's the car cases, officer's incident to citation" “search “pot pipe.” marijuana and found cause safety or justified either must be of state con arrest for violation After his at 487. preservation of evidence. Id. laws, challenged the Knowles substances trolled constitutionality search. of the roughly upon whether the search The search of car rather is distin- guishable Vasey with the arrest. See Unit from the searches in Lorenzo, Rarms-Oseguera. The length of time that ed States v. curiam) Cir.1989) (adding grabb passed began “actual before the search (per both cases considerably longer requiremеnt to Belton’s “contem the five-minute area” able delay in the instant search. “place would The search in this poraneous” occurred between Supreme with current Court circuit at odds Moorehead, Although minutes after the arrest. Ramos- precedent”); United States (9th Cir.1995) (the- Oseguera specify does not how much time F.3d elapsed between the defendant’s arrest and upon does “not turn defendant’s actual car, may fairly the search of the infer that ability passenger grab items in com significantly greater the interval was car); partment” of his see also United States (4th delay the five-minute in the search of Nelson, v. 102 F.3d 1346-47 Cir. 1996) (the car. validity of a search incident to an arrest “does not end at the instant the risks distinguishing pres- Another factor in the end”). justifying the search come to an delay ent case is that the by was caused completion paperwork impounding addressing In Belton’s that a McLaughlin’s car as a result of his arrest. “contempora warrantless searсh must be a Vasey, thirty In minute de- valid, arrest” [the] neous incident to be lay part was due in holding the officers at 101 some several conversations with the in defendant courts have characterized the critical issue as an effort to obtain his consent to search the arresting whether the officers conducted the Vasey, car. 834 F.2d at 787. In Ramos- so, practical search as soon as it to do Oseguera, intervening there was an event of including officers took whether the interven moving оfficers the defendant’s directly ing actions not related to the search. police car to the searching station before it. See, Abdul-Saboor, e.g., States v. United Ramos-Oseguera, Here, F.3d 1036. (D.C.Cir.1996) (trial F.3d courts arrest, the defendant’s filling out of the on “whether the should focus arrest and impound paperwork, and the search of his separated search are so time or inter continuous, part car were all of a uninter- fairly vening events that cannot be said events, rupted cоurse of all occurring within former”). to have been incident to the relatively period brief of time. granting in the There is no fixed outer limit for the num case, present heavily the district court relied ber of pass minutes that between an Vasey, on United States F.2d 782 valid, arrest and a warrantless search that is Cir.1987), and United States v. Ramos-Ose contemporaneous incident of the arrest. (9th Cir.1997). guera, 120 F.3d 1028 In Va- Instead, employed courts have flexible stan lawfully sey, the search arrested individ “roughly contempоraneous dards such as place anywhere thirty ual’s car “took arrest,” Moorehead, with the 57 F.3d at forty-five minutes after [the had defendant] and within “a reasonable time” after obtain arrested, handcuffed, been object control of the of the search. Nel police Vasey, rear of the vehicle.” 834 F.2d son, (“although 102 F.3d at 1346 the ‘incident explained at 787. The court that this justification to arrest’ for warrantless of time took the interval search “outside the permit searches doеs not delay an indefinite prophylactic Belton rule because it was not ... justification in a search does last for contemporaneously with the ar a reasonable time officers obtained Similarly, rest.” the court in Ramos- exclusive control of the container that is to be Oseguera concluded the search of a car that searched”). occurred after the car had first been moved police away station and then towed did The First permissible Circuit discussed the roughly contemporaneously not occur temporal leeway between a defendant’s ar- Ramos-Oseguera, Doward, the arrest. 120 F.3d at and search rest in United States v. (1st Cir.1994). There, police 41 F.3d 789 to an search is conducted incident “[A] violation for a traffic stopped ‘integral part of a long so as it is an cheek which a license then conducted ” Indeed, process.’ outstanding lawful custodial warrant. that he had revealed not to focus specifically advised trial courts out of the was ordered The defendant upon suspect “whether the held the item in handcuffed, the back of a grasp or could reached for it at he been ar- his have Three minutes after car. The rele- had been the moment the arrest.” Id. seconds after he rested and scene, upon search vant distinction turns not the mo- away from the driven ment of arrest versus ‍​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‍the moment of the car revealed loaded of the defendant’s upon the arrest and at 791. Thе defendant whether handgun. See id. sufficiently separated are so in time or argued that the search intervening acts that the latter cannot be with his arrest because to have incident to the former. handgun after he had been re- said been was seized at a time when there moved Abdul-Saboor, (quoting 85 F.3d Unit- no conceivable risk that he could Brown, ed States rejecting the gun. id. grabbed the See (D.C.Cir.1982)). argument, the First Circuit cor- defendant’s present filling In the majority’s rectly explained that Belton “[t]he impound paperwork out of the before search- phrase the" ‘con- circumspect use of discrete car, ing the and the initial search were of that arrest’ ... temporaneous incident closely of one continuous series events leeway plainly implies greater temporal a nected in In the words of the Belton time. the custodial arrest and the search between court, “contemporaneous the search awas Doward, advocates.” [thе defendant] Belton, incident of arrest.” 453 [a lawful] 41 F.3d at 793. 460, Accordingly, we U.S. at 101 S.Ct. 2860. Also useful to our determination of wheth- granting reverse the district court’s order McLaughlin’s car er the initial search of was McLaughlin’s and re- holding in United States v. lawful is our fur- mand this case to the district court for (9th Cir.1996). Hudson, In 100 F.3d 1409 proceedings. ther Hudson, a non-vehicular officers found AND REMANDED. REVERSED parents’ in his in his the defendant bedroom house, room, “ordered him out of the hand- TROTT, Concurring: Judge, Circuit him, house, cuffed removed him the the agree panel’s conclusion that I with the [security] swеep.” their continued “bright-line” in New York v. Bel rule drawn later, of at 1413. About three minutes one 2860, ton, 454, 460-61, 453 U.S. 101 S.Ct. the officers returned to the bedroom in which in our interpreted as L.Ed.2d the had been found and conducted defendant case, compels a precedent subsequent to that discovery gun resulting a search in this instance conclusion that the search id. af- drug paraphernalia. See We to arrest. I am was a valid search incident of the defendant’s motion firmed the denial reminded, howevеr, Rehn of then-Justice holding that a warrantless suppress, quist’s prediction that shortly “may be after the arrestee has been removed area” as Fourth “bright for lines” the [in contemporaneous incident of an arrest. illusory. en- context Our is] at 1419. “bright to attack profession tire is trained Ac- attack foxes. lines” the hounds Although the search of a Hudson involved arguments that by the ceptance courts house, not a it is nonetheless instructive. equivalent” of thing is the “functional one Hudson, the defendаnt In the search without other, example, soon breaks down the for because it was conducted present was valid bright line into a might have been a of the defen- incident blurry impressionistic pattern. though even dant’s 443, 420, California, U.S. v. “at the the D.C. Circuit Robbins not then scene.” As (1981) 2841, (Rehnquist, 69 L.Ed.2d 744 Abdul-Saboor: stated in United States v. however, J., Unfortunately, exigencies dissenting). in our search that “the of the situa- clarity, have now abandoned our con- exemption for tion” make sometimes moorings place and flоated to a requirement “impera- stitutional from the warrant approves purely exploratory the law tive.” during of vehicles which officers searches (quot 453 U.S. S.Ct. 2860 objective or reason with no definite States, 451, McDonald United 335 U.S. rummage search are around in a allowed (1948)). 69 S.Ct. 93 L.Ed. 153 they might car to see what find. This state context, particularity warrant re cause us to reexamine affairs should our quirement provides safeguard against thinking. general, exploratory Maryland searches. “bright-linе” rule of Belton was in- Garrison, 79, 84, give practical tended to officers in the field a (1987). “By limiting L.Ed.2d 72 the authori understanding means of constitutional specific zation to search to the areas authority. limitations on their 453 U.S. at things probable for which there is cause to core, 101 S.Ct. 2860. At its Belton requirement ensures that further defined law enforcement carefully justifi- search will be tailored to its “grab area” limitation ‍​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‍on searches incident to cations, and will not take on the character of Califоrnia, arrest outlined in Chimel v. wide-ranging exploratory searches the 23 L.Ed.2d 685 (footnote prohibit.” Framers intended to (1969). Chimel, the arrest occurred omitted). scope Just as the of the search in home, whereas Belton involved the search of the warrant context is limited to those items Chimel, Interpreting a vehicle. pro- Belton cause, for which there is “passenger compartment” claimed pursuant searches conducted to an “grab per vehicle as the area sе” for Fourth to the warrant must be limited so, however, purposes. doing scope purposes to the excep- for which the clearly the Court said: tion was created. holding today Our does no more than de- application In our “bright-line,” Belton’s meaning termine the princi- of Chimel’s however, the rationales behind the search ples particular problematic in this exception incident to arrest have been aban- tent. It in no alters the fundamental doned, lost, and, purpose the has been as principles established in the Chimel case Rehnquist Chief predicted, Justice little cer- regarding scope the basic of searches inci- tainty remains. dent to lawful custodial arrests. “impressionistic blur” that has been 453 U.S. at 460 n. 101 S.Ct. 2860. the well-meaning downfall of the Belton rule One of the principles” “fundamental the in this court is our surrounding case law the that, Court referred to is in order for a that, qualify in order to as a search incident to arrest to be reasonable as search incident to the search must be opposed merely exploratory, it must be “roughly contemporaneous” with the arrest. grounded in at least one of the rationales for Vasey, In United States v. 834 F.2d exception which the was created: officer (9th Cir.1987), we held the search was not safety preservation or the of evidence. Id. at “roughly contemporaneous” and therefore 2860; Chimel, 395 U.S. at not incident to arrest where the defendant 89 S.Ct. 2034. handcuffed, was police in a car аnd The “search incident excep- to arrest” is an held minutes before the tion to the Fourth Amendment requirement Then, search occurred. in United States v. prior a warrant must be issued to a Moorehead, (9th Cir.1995), 57 F.3d search: we held that a search was a valid search

It principle is a first of Fourth Amendment incident to arrest where the defendant was jurisprudence police may similarly not con- handcuffed and in the back they vehicle, duct a search unless first convince a but where the sеarch occurred magistrate Next, neutral that there is soon after arrest. in United States v. cause to do so. recognized, Ramos-Oseguera, This Court has inventory “rough- ration of the search basis —the Cir.1997), a search was we found af- fishing expedition purely because it occurred ly contemporaneous” search was —a arrested and taken simple. were exploratory plain ter the defendants search — police the but before police station Ironicаlly, to the rationales be- adherence away. car towed provide police hind the offi- would us, we face situation In the case before greater guidance cers with than does arrested, taken was where today. “bright-line” applied rule Officers way to and was well on his only ques- would ask themselves two min- Approximately five station. (1) (2) safety tions: is officer at risk and is McLaughlin departed, utes after preserve. there evidence to If the answer to was conducted as an place. took The search questions “yes,” the either of those inventory the state officers did not, may proceed. If there is no reason to rules, and the case end- not follow their own requirement. set aside the warrant theory, on a different up ed in federal court really theory having nothing to do with what Supreme Court’s recent decision event, panel concludes happened. —Iowa, -, Knowles v. looks more like Moorehead and that this case (1998),provides L.Ed.2d 492 reason Ramos-Oseguera be- less like applicable here. equally that should be (1) length of time that had cause Addressing preservation of evidence ra (never mind the fact that we do passed tionale, the Court stated: “Once Knowles elapsed much time in Ramos- know how stopped speeding and issued a cita (2) that, fact in this Oseguera) and tion, necessary prosecute all the evidence delay officer’s was caused No further that offense had beеn obtained. compared to completion paperwork, speed going of excessive to be evidence delay Vasey, where was due conversations person either on the of the offender or found Ramos-Oseguera, the defendant or passenger compartment of the car.” delay moving the defendant. caused implicated Id. at 488. Officer searches incident to regarding the law So in because Knowles was not arrested but like, “well, something now thir- rеads stead issued a citation. Id. long, but five minutes is ty-minutes is too you delay you filling if out okay and can panel correctly observes that While you interrogating or paperwork but not if Knowles, a “search incident to citation” So transporting the defendant.” much controlling in the search incident to is not bright lines. context, reasoning in that the Court’s absurdity associated decision illuminates tragedy just that the rule is now allowing ‍​‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‍searches in- purely exploratory provides guidance it little unclear that so legis ratione ces- cident to arrest. Cessante concern greater enforcement. Of is the law ipsa sat et lex.1 reality that the search incident to arrest completely severed from exception has been of officer

the historic rationales questions of evidence. The now

preservation how, why.

revolve around when and perfect-

The case before us illustrates this

ly. McLaughlin pulled having over for He illegally tinted rear window. discovered there

arrested because outstanding warrant for failure to

was an furthered

appear. The search no safely: McLaughlin was handcuffed away. There was no evidence to

and taken evapo- Analytically given

preserve. — ceasing, the law also ceases.” "The reason for the law

Case Details

Case Name: UNITED STATES of America, Plaintiff-Appellant, v. John Lee McLAUGHLIN, Defendant-Appellee

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 16, 1999

Citation: 170 F.3d 889

Docket Number: 98-30027

Court Abbreviation: 9th Cir.