Lead Opinion
Opinion for the court by
joined by GLICKMAN, FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
Dissenting opinion by Associate Judge BECKWITH, joined by WASHINGTON, Chief Judge, and EASTERLY, Associate Judge, at page 251.
MCLEESE, Associate Judge:
The United States seeks review of the trial court’s pretrial order suppressing evidence as fruit of an unlawful search under the Fourth Amendment. D.C. Code § 23-104 (a)(1) (2012 Repl.). We reverse and remand for further proceedings.
I.
The evidence presented at the suppression hearing indicated the following. At approximately 2 a.m. on June 16, 2013, United States Park Police Officer Michael Alto was driving on Ingraham Street NW when he saw appellee David Lewis driving a car with a non-functioning headlight. While following the car, Officer Alto determined that the car was registered to Mr. Lewis and that Mr. Lewis had a suspended license. Mr. Lewis drove a couple of blocks, pulled over into a parking spot, and
After confirming-.that Mr. Lewis’s license had been suspended, Officer-Alto put Mr. Lewis in handcuffs. Officer Alto did not- smell any alcohol coming from Mr. Lewis or Ms. Gibbs. A second officer, Officer Brown, arrived on the scene, and Officer Alto asked her to search the car for additional open containers of alcohol. In Officer Alto’s experience, “the majority of times when there is a tequila or liquor type of beverage in a vehicle, they’ll be drinking through cups.” Similarly, in Officer Brown’s experience, people very rarely drink directly out of Patrón bottles and instead usually use cups. The officers decided to search the car, both for additional evidence'of the offense of "possession of an open container of alcohol (POCA) and because it was possible that Ms. Gibbs could have been permitted to drive the car away afterward, and the officers therefore wanted to make sure that there was no additional alcohol or other contraband in the vehicle.
. At the time Officer Brown arrived, Ms. Gibbs was outside the vehicle, saying that she needed to go to the bathroom. Officer Brown told Ms. Gibbs that she could not leave. Officer Brown opened the driver-side door and-smelled marijuana. Officer Brown found a cup containing liquid that smelled like alcohol on the floor of the front passenger seat, and Ms. Gibbs said that the cup was hers. Officer Brown also found a loaded handgun and a box of ammunition in a bag on the back seat. Finally, Officer Brown found a cigarette containing a green plant-like substance in the passenger-side door.
According to Officer Brown, Ms. Gibbs was not under arrest at the time the search of the car began. Once Officer Brown found the gun, she placed Ms. Gibbs in handcuffs. A subsequent search revealed a bag of marijuana in Ms. Gibbs’s bra. Ms. Gibbs was arrested for POCA and possession of marijuana. Mr. Lewis was arrested for carrying a pistol without a license, possession of an unregistered firearm, possession of unregistered ammunition, and operating a vehicle with a suspended license.
The trial court granted Mr. Lewis’s motion to suppress evidence of the gun, the ammunition, and the marijuana, concluding that the officers did not have reasonable, articulable suspicion to' search the vehicle for evidence of POCA. A division of this court concluded to the contrary that the officer’s had reasonable, articulable suspicion that there was evidence of POCA in the car. United States v. Nash,
II.
When reviewing a trial court’s denial of a motion to suppress, we “view the evidence in the light most favorable to the prevailing party.” Bennett v. United States,
“A search conducted without a warrant is per se unreasonable under the Fourth Amendment unless it falls within a few specific and well-established exceptions.” Taylor,
We hold that a Gant evidence search is lawful if (a) the police have prob
A.
We turn first to whether a Gant evidence search may precede the arrest of the suspect. The Supreme Court did not decide that question in Gant. In Rawlings v. Kentucky,
’ The Supreme Court in Rawlings did not explain its reasons for holding that a search incident to arrest may permissibly precede arrest, but the lower courts have identified at least three. First, permitting search to precede arrest will in some cases benefit innocent suspects, because if the results of the search negate probable cause or persuade the officer not to arrest, the suspect will be spared the greater intrusion and collateral consequences of an arrest. See, e.g., State v. Overby,
Lower courts, including this court, have applied Rawlings broadly, upholding
Mr. Lewis does not appear to dispute that a Gant evidence search can be lawful even if the search is conducted before arrest, as long as an arrest is under way. Some of Mr. Lewis’s arguments, however, seem to imply more broadly that a completed arrest must precede a Gant evidence search. In any event, we hold that, as the Supreme Court concluded in Rawl-ings, it is sufficient that the arrest follows quickly after the search.
Most broadly, Mr. Lewis relies on the Supreme Court’s statements that “[i]t is the fact of the lawful arrest that establishes the authority to search” incident to arrest. E.g., United States v. Robinson,
Somewhat more narrowly, Mr. Lewis argues that the Supreme Court’s statement in Rawlings must be understood in context. Specifically, Mr. Lewis argues that an arrest was under way at the time of the search in Rawlings, and that Rawlings thus should not be read to authorize searches incident to arrest unless an arrest is at least under way. We conclude otherwise. Although it is not entirely clear what Mr. Lewis means by the term “under
Mr. Lewis also suggests in a footnote that the temporal flexibility provided by Rawlings should not be extended to Gant evidence searches. We disagree. As we have already noted, every court of which we are aware to have addressed the question has applied Rawlings to Gant evidence searches. See, e.g., Smith,
In sum, we hold that a Gant evidence search can be lawful even if the search precedes arrest.
B.
We turn . next to the question whether the search in this case was lawful even though it is unclear whether, at the time of the search, the officers intended to arrest Ms. Gibbs. Based on -controlling Supreme Court authority, we conclude that the search was lawful.
The Supreme Court’s “Fourth Amendment cases have repeatedly rejected a subjective approach. Indeed, [the Supreme Court has] never held, outside limited contexts such as an inventory search or administrative inspection, that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.” Fernandez v. California, — U.S. -,
Gant evidence searches rest on particularized suspicion, because they require not only probable cause to arrest but also reasonable, articulable suspicion to believe, that the vehicle to be searched contains evidence of the offense of arrest. Gant,
We are not persuaded by Mr. Lewis’s arguments to the contrary. First, Mr. Lewis argues that Gant evidence searches necessarily require inquiry into officers’ subjective intent, because the legality of such searches depends on the offense of arrest, which in turn depends on the subjective decision of a particular officer. The Supreme Court did not explain in Gant how courts should determine the offense of arrest for purposes of assessing the legality of a Gant evidence search. We need not delve into that issue in the present case, because Mr. Lewis does not dispute that there was a prompt arrest for POCA. We do note, however, that it is not clear that the inquiry must be subjective in character. Cf., e.g., Devenpeck,
Second, contrary to Mr. Lewis’s contention, Knowles v. Iowa,
We recognize that, under an objective approach, officers who have probable cause to arrest for a minor crime for which they would not ordinarily make an arrest might be tempted to conduct a Gant evidence search and then decide, depending on the
In sum, we hold that the legality of a Gant evidence search does not depend on whether the officers intended to.arrest the suspect at the time of the search at issue.
C.
Mr. Lewis makes four additional arguments, which we address in turn. First, Mr. Lewis relies on the Supreme Court’s statements that “an incident search, may not precede an arrest and serve as- part of its justification.” Sibron v. New York,
Second, Mr. Lewis argues that a search cannot be incident to an arrest if the search is the causé of the arrest. See State v. Funkhouser,
Third, Mr. Lewis argues that, because a search must be justified at its inception, it is impermissible for subsequent events to affect the lawfulness of a search. It is true that, under the approach we adopt, the admissibility of evidence obtained during a' Gant evidénce search may depend on events that take place after the search. But that is not unique to the current setting. For'example, if officers executing á search warrant act within the warrant at first but then flagrantly exceed the scope of the warrant, all of the evidence seized may be subject to suppression. Cf., e.g., In re 650 Fifth Ave. & Related Props.,
Finally, Mr. Lewis argues that his approach would give clearer guidance to law enforcement than the approach we adopt. We disagree. Mr. Lewis’s approach raises many questions. At the most basic level, it is unclear when an arrest should be viewed as under way or what it would mean to require that the officers intend to arrest the suspect. On the latter topic, for example, it is unclear whether under Mr. Lewis’s approach a Gant evidence search would be .lawful if the police plan to transport the. suspect to the station to then be released on citation. See generally D.C. Code § 23-584 (b) (2016 Cum. Supp.) (authorizing certain officials to grant citation release to arrestees after appearance at law-enforcement agency). To take another example relating to a separate topic, it is unclear how Mr. Lewis’s approach would be applied if different officers on the scene had different intents. In light of these and other similar questions, we conclude that Mr. Lewis’s approach would not provide a significantly clearer framework for police than the objective approach that we adopt.
III.
A.
A central theme of the dissent is that permitting a search incident to arrest to precede formal arrest would contradict “the traditional requirement of a completed formal arrest to justify a search.” Post at 265. The Supreme Court, however, has held that the search-incident-to-arrest exception contains no such requirement. Rawlings,
• As part of its implicit critique of Rawl-ings, the dissent states that the “search-ineident-to-arrest exception that existed at common law” was limited to instances in which formal arrest preceded the search. Post at 256. That does not appear to be the case. The dissent cites no common-law authority holding or explicitly stating that a lawful search incident to arrest cannot precede the formal arrest. Id. The Supreme Court has pointed out that the historical underpinnings of the search-incident-to-arrest doctrine are “sparse.” United States v. Robinson,
The dissent also attempts to marginalize Rawlings by describing Rawlings as presenting “rare circumstances” or “unusual facts.” Post at 258 & notes 5-6, 261. To the contrary, the issue presented in Rawlings arises with great frequency. Many published appellate decisions apply Rawlings to uphold searches conducted incident to, but before, arrest. See supra at 240-41. Although the dissent could be read to suggest- that Gant indicated that lawful searches incident to arrest that precede formal arrest will be “rare,” post at 258 note 6, in fact, Gant used the word “rare” to describe one particular type of search incident to arrest; a justifiable search of a vehicle, to protect officer safety, occurring before an officer can adequately secure the suspect.
B.
Although the dissent somewhat tentatively suggests that Rawlings is inapplicable to Gant evidence searches, post at 260, the dissent ultimately concludes more narrowly that, at a minimum, an arrest must be under way for a Gant evidence search to be lawful. Post at '258-60. We disagree.
‘ The dissent correctly notes that Justice Scalia’s concurrence in Thornton v. United States,
First, as we have already noted, supra at 246-47, there does not appear to have been a settled common-law rule that the formal arrest must precede a search incident to arrest. Second, the defendant in Thornton had been placed under formal arrest before the search at issue.
In light of the foregoing considerations, it is not surprising that the dissent itself does not appear to rest on the idea that Gant implicitly carved out an exception to Rawlings. Rather, the dissent primarily takes the view that at a minimum an arrest must be under way before a Gant evidence search may lawfully be conducted. Post at 258-60. That view. does not withstand analysis.
First, the Supreme Court in Rawlings suggested no such limitation. To the contrary, the Court stated its holding more
C.
According to the dissent, upholding the legality of the search in this case will “eviscerate[ ] the limits” imposed in Gant on searches incident to arrest, will permit “rummaging at will” during searches “un
The Supreme Court in Gant precluded a particular type of search incident to arrest: searches justified neither by a need to protect officer safety nor by a particularized reason to believe that there would be evidence of crime in the area searched. E.g.,
The search in this case occurred after Ms. Gibbs had been seized and at a time when the police had probable cause to arrest Ms. Gibbs for POCA. The search rested on particularized reason to believe that the car would contain evidence of POCA. After the search, Ms. Gibbs was promptly arrested for POCA. Far from being “untethered in every respect from an actual arrest,” post at 252, the search was very closely tethered to Ms. Gibbs’s arrest. And far from “askfing] almost nothing of police officers before they conduct a search of a car incident to arrest,” post at 262, Gant evidence searches, as we understand them, require both probable cause to arrest for an offense and particularized reason to believe that the vehicle that is searched will contain evidence of that offense.
We turn finally to the dissent’s view that upholding the legality of the search in this case will invite discriminatory law enforcement. Post at 263-64. As previously noted, many courts have upheld searches incident to arrest where the search preceded the formal arrest and where officers were not shown to have intended to arrest at the time of the search. Supra at 239-40. Nevertheless, the dissent has pointed to no evidence that such rulings have contributed to abusive or discriminatory law enforcement. Although the dissent cites materials describing discriminatory law-enforcement tactics, including the use of racial profiling and “baseless[]” stops, post at 263-64 note 14, the dissent does not identify any material linking those problems to the particular issue in this case.
We share the dissent’s more general concerns about discriminatory law enforcement. Post at 263-64. But the dissent fails
In sum, the dissent in our view rests on a novel and vague limitation of the Supreme Court’s holdings in Rawlings and Gant. Moreover, the dissent’s approach is incompatible with the Supreme Court’s repeated holdings that searches based on particularized suspicion may not be invalidated based on officers’ subjective motivar tion or intent. We therefore respectfully disagree with the dissent.
IV.
To reiterate, we hold that, under the applicable Supreme Court decisions, a Gant evidence search is lawful if (a) the police have probable cause to arrest the suspect for an offense, Maryland v. King, - U.S. -,
In this case, Mr. Lewis does not dispute that the police had probable cause to arrest Ms. Gibbs for POCA. Ms. Gibbs was a recent occupant of the car. The division has already ruled that the police had reasonable, articulable suspicion to believe that the car contained evidence of POCA, and the en banc court left that ruling undisturbed. Nash,
So ordered.
Notes
. Before the division, Mr. Lewis’s case was consolidated with a factually unrelated case, " United States v. Nash, No. 13-CO-1299. United States v. Nash,
. By upholding the legality of Gant evidence searches in the circumstances stated in text, we do not mean to imply that all other Gant evidence searches would necessarily be unlawful. For example, we express no view on the question whether an otherwise lawful Gant evidence search would be rendered unlawful if the suspect fled from the police after the search and before the police placed the suspect under arrest. On a separate point, the dissent asserts that we decide the case on a basis “which neither party meaningfully briefed." To the contrary, the parties extensively briefed the issues we decide.
. For similar reasons, we are unpersuaded by Mr, Lewis’s reliance on language in Justice Scalia’s concurring opinion in Thornton v. United States,
Dissenting Opinion
with whom WASHINGTON, Chief Judge, and EASTERLY, Associate Judge, join, dissenting:
By the time Officer Brown arrived at the scene on Ingraham Street, Officer Alto had already detained appellant David Lewis for driving with a suspended license, and Brittney Gibbs, Mr. Lewis’s passenger, had already handed over and claimed ownership of the half-full bottle of tequila Offi
While Ms. Gibbs sat unrestrained on the police cruiser’s bumper, Officer Brown opened the front passenger door and began her search. After she smelled manjúa^ na, saw a plastic cup with alcohol in it on the floor, and found a marijuana cigarette in the passenger door handle, she kept searching. It was not until Officer Brown unzipped a Nike bag in the back seat and discovered a handgun that she decided to arrest Ms. Gibbs, who was still unrestrained and “standing outside the car.” Officer Brown. then conducted a true search incident to Ms, Gibbs’s actual arrest, recovering “a. bag of marijuana that she had stuffed in her bra.”
The search of Mr; Lewis’s car was not a search incident to arrest as this court or the Supreme Court has ever conceived of that exception to the warrant requirement.
The search was not incident to Mr. Lewis’s'arrest: he was handcuffed at the time of the search and the police had no reason to think they would find evidence of the offense of driving with a suspended license in the car. See Chimel v. California,
Nor was the search somehow incident to Ms. Gibbs’s eventual arrest. If anything, it was the officers’ decision not to arrest Ms. Gibbs that gave rise to their need to search'Mr. Lewis’s car, because, as Officer Brown testified, Ms. Gibbs “wasn’t under arrest and the car wasn’t impounded,” so “she could have driven away” with contraband in the car. The search had nothing tó do with disarming an arrestee or preventing her from destroying evidence related to an offense of arrest, see Chimel,
Such an investigative search, untethered in every respect from an actual arrest, runs contrary to the basic Fourth Amendment principle that “conducting a Chimel search is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the search unlawful.” Thornton v. United States,
And yet the majority opinion upholds Officer Brown’s investigative pre-arrest search because, in its view, it is a “Gant evidence search” that satisfies the majority’s new five-part test governing the con
The majority justifies this reading of Gant—which neither party fairly anticipated would be the basis for resolving this case and which neither party meaningfully briefed
L
Arizona v. Gant is the beginning and end of the majority’s analysis—specifically, the exception to the warrant requirement Gant recognizes in circumstances where officers stop a vehicle, arrest its occupant, and search the car for evidence of the offense of arrest. Given its reliance on Gant, then, the majority opinion .is striking in two ways: (1) in the extent to which the opinion, by upholding what amounts to an investigatory search that cannot be justified by the rationales underlying the exception to the warrant requirement it is invoking, repeats the same kind of mistake the Supreme Court in Gant sought to stop lower courts from making, and (2) in -the extent to which the majority must stray from the very precepts of Gant’s vehicle exception to apply it to the facts of this case.
In Arizona v. Gant,
In seeking to curtail these investigative searches under Belton, the Supreme Court in Gant began by reaffirming the axiom that a warrantless search is “per se unreasonable” absent justification under one of the “few specifically established and well-delineated exceptions” to the warrant requirement. Id. at 338,
The Gant Court then applied Chimel and the new vehicle exception to the facts of the case, in which Mr.. Gant, after getting out of a parked car, was arrested for driving with a suspended license, handcuffed, and placed in the back seat of a police cruiser before officers searched his car and found a gun and cocaine. Id. at 336,
No one here disputes that the police had probable cause to make an arrest for possession of an open container of alcohol (POCA). It is also undisputed that at the time of the search the police had not arrested Ms. Gibbs for POCA or for any other crime. Yet unlike in Gant itself,
At the outset, the argument for expanding the Gant vehicle exception to searches incident to probable cause to arrest forgets the fundamental context in which Gant arose. The Supreme Court in Gant was intent on reining in, the purely investigative searches that had been occurring under Belton, and to that end the Court expressly rejected the notion of a “police entitlement” to search a car whenever a recent occupant has been arrested. Gant,
The majority’s reading of Gant also ignores the principles underlying the vehicle exception,, including, in particular, the exception’s textual origins in Justice- Scalia’s concurrence in Thornton, Although this exception “d[id] not follow from Chimel,” Gant,
The language in Gant adopting this vehicle exception was taken from Justice Scalia’s concurrence in Thornton,
The reasons Justice Scalia gave for this position had everything to do with the fact of arrest. He made clear that the position was not novel or radical, but merely a reflection of the search-incident-to-arrest exception that existed at common law. Thornton,
The officer who arrests, a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise-in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as- directly furnishing evidence relating to the transaction, -he may take the same, and hold them to be disposed of as the court may direct.
Id. at 630 (citing 1 J. Bishop, Criminal Procedure § 211, p. 127 (2d ed. 1872)). “There is nothing irrational,” Justice Sca-lia added, “about broader police authority to search for evidence when and where the perpetrator of the crime is lawfully arrested,” and it is this “fact of prior lawful arrest” that “distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging.” Id. He even appeared to suggest that, the police might in some sense be obligated to search for such evidence relevant to a charge of arrest. See id. at 632,
Even as he endorsed these searches, Justice Scalia acknowledged that an evidence-gathering justification for a search is “far less compelling” than a Chimel rationale, where “officer safety or imminent evidence concealment or destruction is at issue” and where “officers should not have to make fine judgments in the heat of the moment.” Id. at 632,
The reasoning of Justice Scalia’s concurrence, upon which Gant exclusively relied in adopting an evidence-gathering search-incident-to-arrest exception, for the most part does not apply in the absence of a
At bottom, the majority’s argument under Gant—that a search of a car incident to probable cause to arrest is justified because the police might arrest the person—appears no stronger than the. argument the Supreme Court rejected in Gant: that a search of a car incident to arrest under Chimel is justified even when the arrestee is already secured because the police might have conducted the search earlier. Both arguments assume that, “one way or another,. the search must take place.” Thornton,
The majority justifies allowing pre-ar-rest Gant vehicle searches incident to arrest on two main grounds: (1) that no Supreme Court precedent explicitly states the opposite—that pre-arrest Gant searches are impermissible—and (2) that requiring a formal arrest to be either completed or under way would contradict the Supreme Court’s opinion in Rawlings v. Kentucky,
That no Supreme Court case explicitly holds that pre-arrest Gant searches are unconstitutional is true as far as it goes. But the Fourth Amendment does not give the police unfettered power to conduct searches and seizures unless judges tell them hot to, and this court is not creating policing policy on a blank slate. Rather, we start from the premise that a warrantless search is per se unreasonable, subject only to exceptions that have been defined clearly by the Supreme Court. See Coolidge v. New Hampshire,
With respect to the majority’s second justification for allowing pre-arrest searches, requiring that a completed or underway arrest precede a Chimel search is entirely consistent with Rawlings. In Rawlings, six police officers entered a house with an arrest warrant for a suspect and, not finding the suspect but spotting marijuana seed, detained the house’s occupants, including Mr. Rawlings, for forty-five minutes, while two of the officers left to get a search warrant for the house.
This language in Rawlings reflects a commonsense acknowledgment that where a formal arrest is under way at the time a suspect’s wingspan is searched, as it surely was on the facts of Rawlings, a hypertech-nical insistence upon excluding evidence uncovered in such a search would unnecessarily constrain the discretion of law enforcement. The majority casts this reading of Rawlings as reflecting an “implicit critique” of the case, ante at 246, but the opposite is true. Rawlings reaches the right result. The objective circumstances there—Mr. Rawlings was detained by four police officers for forty-five minutes while two other officers went to get a warrant— were such that there was never any question that Mr. Rawlings was going to be arrested at the time he was searched, and given that fact, the Court sensibly did not believe it “particularly important” that the search preceded the “formal arrest,” because such an arrest had already been set in motion. Read in light of these facts, Rawlings cannot be construed as endorsing pre-arrest Chimel searches where an arrest is not at least under way. See Armour & Co. v. Wantock,
In any event, Ms. Gibbs’s arrest was not under way—under any definition of that term—when the police searched Mr. Lewis’s car. Officer Alto decided not to arrest Ms. Gibbs after confiscating the open bottle of tequila, and so Ms. Gibbs remained sitting unrestrained on the bumper of the police cruiser while Officer Brown searched the vehicle to see what other contraband she might find. Unlike in Rawlings, the circumstances here showed that Ms. Gibbs was unlikely to be arrested before Officer Brown found the gun at the end of her search. Officer Brown’s investigatory search of the vehicle, with no arrest of Ms. Gibbs imminent or inevitable, bears little resemblance to the search incident to an underway arrest in Rawlings.
Of course, this case involves a Gant vehicle search, and it is not clear that Rawlings applies at all in this context. For his part, Mr. Lewis argues that while concerns for officer safety may sometimes justify pre-arrest Chimel searches when the arrest is under way, those concerns are' not present when the police conduct Gant vehicle searches. It may make sense not to stand on formalities when an arrest is already under way and there is a real danger that the suspect might gain access to a weapon or destroy evidence, but the same beat-him-to-the-draw logic does not apply so clearly to searches of vehicles for evidence relevant to a crime of arrest. The majority’s only direct response to this point—that other courts have applied Rawlings to Gant evidence searches, ante at 242-43—is less than compelling.
Even if the Rawlings logic does apply to pre-arrest Gant searches, the resulting rule should then be that Gant vehicle searches incident to arrest, are lawful only where a formal arrest is completed plunder way. But the majority rejects this modest approach and suggests instead that under Rawlings, Gant vehicle searches should be. permissible whenever officers have probable cause to arrest for an offense and where the vehicle may contain evidence of that offense (along with the majority’s other conditions).
Recognizing that the Supreme Court in Rawlings “did not explain [the] reasons” of its fleeting analysis, the majority looks to other state court decisions and gleans from them three policy rationales that it says underlie Rawlings and that support a search-incident-to-probable-cause-to-arrest approach to Gant. Ante at 240-41, 243. But imported' policy rationales cannot create a well-delineated exception to the warrant requirement where none exists. And in any event, the majority’s policy grounds for a pre-arrest Gant exception fall short on the merits.
As its first policy rationale, the majority asserts that a pre-arrest Gant search based on probable cause might benefit an innocent suspect if it negates such probable cause and leads to a decision not to arrest. Under a bright-line approach requiring a formal arrest to justify a search incident to arrest, the argument goes, the police will simply arrest more people, including some people they may not have
But determining how a search-incident-to-probable-cause-to-arrest rule would affect innocent suspects involves & series of complex empirical questions. The precarious assumptions that emerge from such an inquiry are not persuasive grounds for engaging in an otherwise counterintuitive interpretation of Supreme Court precedent to allow a search incident to arrest in the absence of an arrest. Indeed, while the majority cites State v. Overby,
the reality is that an officer who is suspicious may be subconsciously tempted to conduct a search before making the arrest with the expectation or hope that the search will produce such irrefutable evidence of the commission of a crime that a lack of probable cause to arrest prior to the search will be overlooked, or such suspicion as did exist will be viewed more favorably in light of the evidence discovered in the search if, in fact, there is evidence discovered.
Id. at 708 (VandeWalle, C.J., concurring specially).
The majority’s second policy rationale, that a pre-arrest Gant search adds no further intrusion where an arrest is already .“inevitable,” ante at 24CM4, 242-43, may well be true. The difficulty, however, is in determining when an arrest is truly inevitable. Sometimes a set of unusual facts, like those in Rawlings, will objectively indicate the inevitability of an arrest at the time of a pre-arrest search. An approach. that attempts to extract from Rawlings and Gant . an administrable rule—that a search incident to arrest is legal only in the face of a completed or “underway” arrest—provides a workable proxy for inevitability. The majority’s proposed conditions to the legality of a pre-arrest Gant search, in contrast, are not proxies for the inevitability of' an arrest. The circumstances of the five-factor test— that officers have probable cause to arrest, that the suspect has just come from a car, that the police have reason to believe the car might contain evidence of the arrestable, offense, that the police have not released the. suspect or issued a citation, and that the suspect’s arrest for the offense follows quickly on the heels of the search—in np way imply that the suspect inevitably would have been arrested for that offense. Indeed, there are strong indications that the officers had no intent to arrest Mr. Lewis or Ms. Gibbs for POCA, at least before their pre-arrest search uncovered evidence of more serious crimes.
As to the majority’s final policy rationale for pre-arrest Gant searches, courts do appear “reluctant to micromanage the precise order in which officers who have probable cause to arrest conduct searches and arrests” in the context of a Chimel search where, as in Rawlings, the arrest is under way. Ante at 240. And the majority’s citation on this point, Anderson v. State,
The majority’s test, by contrast, asks almost nothing of police officers before they conduct a search of a car incident to arrest, and relies instead on a judicial officer’s after-the-fact determination of probable cause to ensure the lawfulness of the search—a determination that will of course be made only if the suspect is arrested. Requiring an underway or completed arrest—and accordingly a probable-cause-to-arrest determination—before searching a car provides an additional safeguard against abuses in one of the few circumstances where we allow the police to search a vehicle “without prior approval by judge or magistrate” in' the form of a search warrant. See Coolidge,
It is true that the conditions the majority places on pre-arrest searches avert some of the possible abuses. An officer could not, for example, simply pull over a motorist for an extralegal reason (such as
These concerns are by no means hypothetical and carry with them serious implications for disparate enforcement in policing practices.
III.
In its final argument in favor of broadly construing Rawlings to implicitly allow pre-arrest Gant, searches, the majority contends that any alternative approach, such as a rule that Gant searches are permissible only if a formal arrest is completed o.r under way, would inevitably require an inquiry into the subjective motivations of the arresting officers—an inquiry the Supreme Court has discouraged in cases like Whren v. United States,
As a , threshold matter, the approach most consistent with Gant and with Justice Scalia’s Thornton concurrence—a bright-line rule that Gant vehicle searches are impermissible absent a completed formal arrest—would require no inquiry into the subjective intent of the officers. It is solely by virtue of the majority’s insistence that the Rawlings logic apply to Gant searches that this question of subjective inquiry arises at all.
And in any event, the majority misapprehends Supreme Court precedent like Whren and Ashcroft v. Al-Kidd,
But there is a difference between a defendant’s delving into an officer’s subjective intent to invalidate a search that is clearly otherwise legal under objective, existing warrant exceptions
Any subjective inquiry into an officer’s intent to arrest, moreover, would rarely require the type of extensive examination into an officer’s state of mind that the Supreme Court has generally guarded against in the Fourth Amendment context.
Of course, discerning an officer’s subjective intent to arrest may in some cases prove less clear-cut, and officers may be understandably reluctant to subject themselves and the validity of their searches and seizures to the uncertainty of trial courts’ credibility determinations. In such instances, officers have a straightforward and objectively verifiable alternative available to them: they can make the arrest.
IV.
The rule the majority crafts for evaluating the constitutional validity of a pre-arrest Gant vehicle search is ostensibly narrow, but its five-part test cannot mask what is, at bottom, a profound departure from the essential moorings of the Supreme Court’s well-established exceptions to the warrant requirement for both Chi-mel-style searches incident to arrest and Gant vehicle searches alike. The majority opinion is no mere application of Gant to a
There are undeniable costs to expanding existing exceptions to the warrant requirement beyond their well-established bounds. Most notably, investigative searches will become more commonplace. Such searches, as the Supreme Court has repeatedly emphasized, “implicate! ] the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.” Gant,
I respectfully dissent.
. In their briefs as in their respective statements of the issue presented for review, the parties focus on whether a Fourth Amendment search incident to arrest requires the government to prove more than just probable cause to arrest at the time of the search.
. As Justice Scalia observed in his Thornton concurrence, in some cases lower courts had upheld searches under Belton "even when ... the handcuffed arrestee has already left the scene.” Thornton,
. These cases include United States v. Rabinowitz,
. In a footnote, the majority asserts that un- ' like Justice Scalia's statement in Thornton that the "fact of prior lawful arrest distinguishes the arrestee from society at large,” Gant made reference only to searches as being incident to "lawful arrest,” omitting the word "prior.” Ante at 241-42 note 3. But Gant in no way purported to augment Justice Scalia’s reasoning, much less to radically alter it by authorizing an evidence search incident to arrest that precedes the arrest, Gant's discussion of Justice Scalia's approach was brief and unequivocal; it adopted the approach and moved on. Reading Gant's omission of “prior” in this way also appears at odds with the Gant Court's purpose of narrowing the search-incident-to-arrest exception to address the problems Belton engendered. If the Court had also intended to broaden the exception by authorizing a search without the predicate of an arrest, it would have said so.
. Contesting the notion that Rawlings presents "rare circumstances," the majority argues that "the issue presented in Rawlings arises with great frequency” and that "[mjany published appellate decisions apply Rawlings to uphold searches conducted incident to, but before, arrest.” Ante at 247. But the fact that lower courts have cited Rawlings in trying to justify a search-incident-to-probable-cause-to-arrest rule does not mean that the facts of Rawlings—where officers were in the process of arresting the suspect but had not yet formally done so—arise with great frequency.
. The footnote from Gant that the majority cites in suggesting that the Court “understood and intended that Rawlings would continue to permit searches incident to arrest to be conducted before the formal arrest,” ante at 248, makes clear, consistent with Rawlings, that certain pre-arrest searches would be permissible in the "rare case” where an officer has not "fully effectuate[d] an arrest." Gant,
.That Gant was decided so recently also blunts the force of the majority’s argument that pre-arrest Gant vehicle searches are permissible because the Supreme Court has never held them unconstitutional.
. Miranda v. Arizona,
. In suggesting otherwise, the majority observes that Rawlings “relied on a number of decisions holding that a search incident to arrest can lawfully precede the arrest.” Ante at 246. But the cases cited in Rawlings do not endorse a search-incident-to-probable-cause-to-arrest exception to the warrant requirement, and they were wrongly decided if they do. The officers involved in those cases were conducting the searches with a conditional intent to arrest for the offense for which they had probable cause if the searches were fruitful. See, e.g., United States v. Brown,
. The government argues in its brief that mere probable cause to arrest creates a com
. Cf. U.S. Dep’t of Justice, Investigation of the Baltimore City Police Department 8 (2016), https ://www.justice.gov/opa/file/ ' 883366/download (reporting that "[i]n some cases, [Baltimore City Police Department] supervisors have ordered officers to specifically target African Americans- for stops and arrests,” that "[t]hese failures [in policing] contribute to the large racial disparities in BPD’s enforcement that undermine the community’s trust in the fairness of the police,” and that "BPD leadership has acknowledged that this lack of trust inhibits their ability to forge important community partnerships”); U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 5-6 (2015), https://www. justice.gov/sites/defaul1/files/opa/press-releases/attachments/2015/_03/04/ferguson_ police_departrnent_report.pdf (highlighting "the lack of trust between the Ferguson Police Department and a significant portion of Ferguson’s residents, especially African Americans,” and concluding that this "distrust ... is longstanding and largely attributable to Ferguson’s approach to law enforcement,” which "results in patterns óf unnecessarily aggressive and at times unlawful policing; reinforces the harm of discriminatory stereotypes; discourages a culture of accountability; and neglects community engagement”).
. The government contends that such concerns are unfounded because there is no evidence of abuse in the more than 25 years since Rawlings was issued. As an initial matter, not all courts have construed Rawlings to allow searches incident to probable cause to arrest. See, e.g., People v. Reid,
. See supra note 10.
. See generally, e.g., Complaint, Wilkins v. Maryland State Police, No. 93-468 (D.Md. Feb. 12, 1993), http://www.clearinghouse.ne1/ chDocs/ public/PN-MD-0003-0007.pdf. In this class-action lawsuit, Robert Wilkins, an African-American attorney who now serves as a federal appellate judge, successfully challenged the racial profiling practices of the Maryland State Police after the police base-lessly stopped and detained him and three relatives and searched their car on a highway in Maryland because the police believed they fit the state’s drug courier profile. The litigation exposed the prevalence of pretextual stops and ultimately led to a consent decree in which the Maryland State Police agreed to revise and update its policies and procedures against racial profiling, retrain its troopers on proper traffic stops, develop a Police-Citizen Advisory Committee to address ongoing concerns about racial profiling, as well as take other measures to combat this problem. See Consent Decree, Wilkins v. Maryland State Police, No. 93-468 (D.Md. Apr. 22, 2003), http://www.clearinghouse.net/chDocs/public/PN-MD-0003-0012.pdf; see also Baltimore Report, supra note 11, at 7 (noting that "BPD stopped African-American [pedestrians] three times as often as white residents after controlling for the population of the area in which the stops occurred,” that "African Americans accounted for 82 percent of all BPD vehicle stops, compared to only 60 percent of the driving age population in the City,” and that
. See Brigham City v. Stuart,
. Counsel for the government actually appeared to concede at oral argument that the subjective intent of the officer will sometimes be relevant to determining the legality of a search when he acknowledged that he would not want the judge to exclude an officer’s testimony that he had made a definite decision to arrest.
. Even if it did, at least one case binding on this court examined an officer’s subjective intent in the form of his trial testimony in concluding that a search was unreasonable under the Fourth Amendment. See White v. United States,
. The majority relies heavily on broad statements from cases such as Devenpeck that subjective intent has no place in a Fourth Amendment setting. And yet the Supreme Court has expressly endorsed subjective inquiries into an officer's state of mind in certain Fourth Amendment contexts, including inquiries that seem very similar to the question of an officer’s intent to arrest. In Murray v. United States,