*1 Undеrscoring the burden free-wheeling practices. chal view, In our Worth’s HUD, practices” is admits “policies impose HUD’s Worth lenge to suit would airing. While judicial for yet ready very claims for the pleaded generalized “have insists that HUD and EEOC Worth interpos- from purpose preventing of HUD of race system adopted maintain[ed] normally ing the defenses plaintiff-specific Worth on disadvantage that preferences Appel- Title VII cases. See available in face,” Br. we cannot Appellant’s their employer (observing lant’s Br. 40 challenge an unwritten a facial assess by liability showing can avoid “largely no face. Even definition has policy if it plaintiff have hired even it would not apply a assuming somеday HUD will dis discriminated[,] ... to- leading] had not Worth, absent con criminatory policy to of great deal expenditure ward the we lack application policy, crete energy spent on this ‘same deci- time and powers confidence our “sufficient defense”). avail- Such defenses are sion’ to ascertain its contours. imagination” however, reason, and Worth good able Texas, 523 merely may them cast- not circumvent legal ques presenting “purely Far ing high general- at a level of complaint judi presumptively ... suitable tion[ ] ity. review,” Dep’t cial Better Gov’tAss’n State, (D.C.Cir.1986), F.2d III. asks to resolve an complaint us Worth’s disagreement ] “abstract over administra day a live Though Worth one have yet policies” that have to be “formal tive claim, perhaps even meritorious way by ... in a ized and felt concrete day yet part, affirm in has not come. We Labs., challenging part[y].” Abbott and remand with instruc- part, vacate 1507. Because we jurisdiction. tions for lack of to dismiss postponing benefit from review un “would So ordered. question sufficiently policy til the has ‘crystallized’ by taking on a more definite HUD,
form,” City see Houston v. (D.C.Cir.1994), would, we F.3d standing, put if
even Worth did off day. for another
review pause if disposition might give us
Such unduly, burden but he it would Worth challenge free use of remains HUD’s America, Appellee UNITED STATES of gender preferences racial or should actually just affect him. He needs to ever contrast, signifi- By HUD wait. POWELL, Appellant. Ronald if cantly burdened forced to shadowbox who, litigants although like Worth with No. 05-3047. or pointing policy no written adverse Appeals, United States kind, to enlist the any attempt action of of Columbia Circuit. District shaping agency policy. Dis-
judiciary concrete com- gruntled employees without Argued 2006. Feb. indeed, drag could plaints HUD— Decided June months agency through years or inten- — discovery in an effort to unearth elu- sive agency policies of tacit sive evidence *2 Dyer,
Beverly G. Assistant Federal Pub- Defender, argued lic appel- the cause for lant. her on the With briefs was A.J. Kramer, Federal Public Defender. Neil Jaffee, H. Assistant Federal Public De- fender, an appearance. entered Nyland, Suzanne C. Assistant U.S. At- torney, argued appellee. the cause for With her brief were Kеnneth L. Wainstein, Attorney, Roy W. McLeese, Goodhand, III David B. As- Attorneys. sistant U.S. GINSBURG, Judge,
Before: Chief ROGERS, Judge, EDWARDS, Circuit Judge. Senior Circuit Opinion for the Court filed Circuit Judge ROGERS.
Dissenting opinion filed Judge Chief GINSBURG.
ROGERS, Judge. Circuit question before the court is whether the warrant under the Fourth for a search Amendment passenger compartment of a car incident to a lawful custodial arrest under New York v. (1981), applies
to a search incident to the possibility of an imminent arrest. it We hold that does not. exception, To come within warrant- less precede search cannot a custodial ar- rest; otherwise, neither of the in the cupholder of an armrest liquid two historical rationales Court’s Knowles v. apply. in an armrest front seat and another Iowa, 113, 116-117, leaning inside of the back seat. While *3 (1998). Consequently, al- car, Officer Jones driver’s side of the probable had cause to though the to Jones moved smelled alcohol. Officer for a arrest Ronald Powell misdemeanor car had the passenger’s the side of the they in presence, their committed the car. He then passenger get out of nearby in- searched a car before instead the the car. On the interior of searched he forming Powell that was under arrest seat, nearly bottle empty back he found a in a restraining his movement manner or Upon opening cognac backpack. of and a in would lead a reasonable found an In- backpack, the Officer Jones arrest, the position to believe he was under gun machine loaded with tratech TEC-9 Accordingly, be- search was unlawful. magazine 23 rounds of ammunition the lacked cause to in He also and one round the chamber. car, judgment the we reverse the a card backpack found inside credit based on the fruits of unlaw- conviction receipt bearing name and the cer- Powell’s ful search. tificate title for vehicle. I. then the other officers Officer Jones told up,” “hook him that the three signaling to On March 9:00 approximately handcuffed, they p.m., Metropolitan Department Police Offi- men were to Bray driving an unmarked cer Jones was one of the offi- were. Officer Jones called police car with two other officers in North- him the cers his location and showed east, Washington, D.C.. The officers were backpack, put on the which Jones clothes, plain wearing tactical vests it. trunk so that the officer could see bearing “police.” word Officer Jones point, speak- At three men started they testified when reached 1700 ing spontaneously, although Jones Officer Avenue, they Virginia block of West saw they said. The men could not recall what men, Powell, two one of whom was Ronald Jones, arrested, according were Officer urinating few feet from the rear of a for the firearms violation as well as parked standing car. The men were in a possession of an urinating public and dark, deserted, industrial non-residential Thе open men were container alcohol. area, only by street which was illuminated in re- rights, read them Miranda approached Two lamps. officers men officers, by one of the sponse questions they urinat- from behind while were still gun the car and were his and Powell said officers, Upon turning toward the ing. gun protection. that he had the just going of the men said were “[W]e one men taken the Fifth District were .... had to go, to a friend’s house [W]e were Mi- again given station where man.” go, man. We had to answer warnings; randa refused to Powell Officer Jones occurring, While any questions. the driver’s car approached side posses- was indicted for unlawful noticing sitting a third man upon by a of a firearm and ammunition sion All car рassenger seat. doors front felon, § 922(g)(1). in violation 18 U.S.C. closed; only the driver’s window was pretrial suppress He motion filed Jones leaned inside the open. Officer four and oral evidence on physical window, entering his torso driver’s (1) lacked grounds: car. flashlight into the He and shined being yellowish cause believe misdemeanor was cups containing two clear saw presence committed their because it had vealed the backpack gun, with the Officer completed been when the officers arrived Jones could not use fruits of this un (2) scene; on the car was not lawful justify search to the search or ren any the time of arrest and that der it permissible under the Fourth arrest; of the car not incident Seе, Class, e.g., Amendment. New York v. (3) entry Officer Jones’s into the car con- 106, 114-15, inception stituted search at its and was (1986); United States Ma (4) cause, unsupported by probable (D.C.Cir.2003). ple, 348 F.3d Sec any statements he made were the result ond, the Government concedes *4 interrogation following illegal an justified search cannot be under and there valid warnings were no Miranda Fourth Amendment as incident ar or waiver of rights. his Miranda car passenger rest of the possessing district court denied the A jury motion. open alcohol, container of see D.C.Code found guilty. Powell The district court 22-1001(d) (2001), § because the sentenced Powell to 46 imprison- months’ only cause to believe this ment, years supervised followed three violation hаd occurred as a result of the 924(a)(2). § release. See 18 U.S.C. Again, unlawful search. this is clear from Thus, testimony. Officer Jones’s only
II.
question before the court is whether the
appeals
judgment
Government can justify the
un
otherwise
conviction, specifically the denial of his
lawful search of the car because the search
suppress
motion to
evidence found in the
was “incident
post-search
to” Powell’s
ar
car and his
response
statement in
rest for a misdemeanor and thus use the
questioning after he
inwas
handcuffs. We
fruits of the unlawful
justify
search to
review the district court’s determinations
Powell’s arrest for a
questions
felony
offense. Al
of law de novo
findings
and its
of historical fact
though
for clear
the district
еrror. See
court did not reach this
States,
Ornelas v.
690,
United
question,
the Government
argu
made the
699,
116 S.Ct.
On
the Government
United
makes two
Garrett,
concessions that
States v.
inquiry.
narrow our
720 F.2d
First,
(D.C.Cir.1983)).
the Government acknowledges that
the record shows that Officer Jones both
The Supreme
long
Court has
rec
saw and
yellowish
smelled the
liquid in the
ognized an exception to
general
war
cups
after
leaning inside the car
requirement
rant
the Fourth
through
open
window on the driver’s
Amendment for searches incident to prior
side of the car. This
clear
from Officer
lawful custodial arrests.
In United States
Thus,
testimony.
Jones’
the Government
Robinson,
94 S.Ct.
correctly concedes that the district court
(1973),
the Court acknowl
clearly erred in finding that Officer Jones
edged this
“comprehensive
court’s
treat
yellowish
first saw the
liquid in
cups
ment of the authority
officer to
while he
standing
outside the vehicle.
person
search the
of one who
Having
has been
entered the car
without
conducted,
validly
cause and
awested and taken
custody,”
on the
into
basis of what
id,,
he had
seen while inside
(emphasis
a com-
S.Ct. 467
add
plete search of
ed),
the car interior that re-
in concluding
that the
officer’s
(and
marihuana,”
101 S.Ct.
container
id.
subsequent
body search
search)
jacket
after he
ar-
[found
the defendant
search of [his]
“[t]he
driving
immediately
revocation of his
after
rested
seat
followed
car]
back
not “offend
limits
permit did
operator’s
arrest,”
The Court recalled
id.
upon
Amendment,”
id.
imposed by
Fourth
require-
to the warrant
The Court
then
‘the
recognition “that
ment is
on the
based
observed
exigencies
the situation’
sometimes
that a search incident
is well settled
[i]t
re-
from the warrant
exemption
make an
”
excep-
lawful arrest
a traditional
to a
Id. at
quirement ‘imperative.’
* * *
the warrant
tion to
McDonald
United
historically been formulated
has
[that]
States,
The first
propositions.
into two distinct
(1948)).
that “a
It recounted
L.Ed.
may be made of the
is that a search
a situation
lawful custodial
creates
virtue of the
person of
arrеstee
contemporaneous
justifies
is that a
lawful arrest. The second
a warrant of the
search without
*5
the area within
may be made of
immediately
the
surround-
arrested and of
control of the arrestee.
the
Chimel,
area,”
395 U.S. at
ing
(citing
id.
“in the
a
The
held that
case of
Id.
Court
2034).
763, 89 S.Ct.
full
custodial arrest a
search of the
lawful
that
contends
neither
Powell
exception
is not
an
to the
that
two historical rationales
the
of
the Fourth
warrant
has
for the search-incident-
provided
Court
Amendment, but
also a ‘reasonable’
in
Al
exception apply
to-arrest
his case.
under that Amendment.”
Id. at
though
on
found
the district
94
467.
the facts
S.Ct.
the
cause to
police
court
Belton,
at
In
U.S.
conduct,
disorderly
un
arrest
for
Pоwell
the
extended this
Court
Belton,
here
police
police
like the
the
holding
policeman
a
exception,
that “when
formally
or otherwise detain
arrest
the
did
arrest
has made a
custodial
of
lawful
automobile,
may,
of an
he
as a
the
Powell
occupant
searching
car.
arrest,
that
contemporaneous incident of
out,
the
on the record before
points
based
compartment
the
of that
passenger
seai’ch
court,
the
had not
district
officers
automobile,”
id. at
incident to the former.” United States v. were (D.C.Cir. Abdul-Saboor, 664, “[u]rinating F.3d in public.” 85 668 arrest” for Imme- 1996) Brown, search, (quoting diately following States 671 Powell and his United (D.C.Cir.1982)). F.2d 587 companion indeed handcuffed and formally placed public under arrest important, Rawlings More v. Ken- urination as well as firearms viola- 98, 111, tucky, 448 100 S.Ct. 65 U.S. brought light by tion the search. inAs (1980), Supreme Court Rawlings, “the formal arrest followed not specifically “particularly said it is im- on quickly challenged the heels portant precedеd that the search the ar- search.” 448 100 U.S. S.Ct. 2556. rest rather than vice versa” where “the Therefore, proba- because “the had quickly formal arrest followed on the heels search], ble cause to arrest [before search” challenged and “the one search was valid as incident to arrest.” clearly probable place cause to [the Riley, 351 at 1269. F.3d suspect] under arrest” before the search. exactly happened
That is here. what See gives reading The Court novel v. Riley, also 351 F.3d United States Rawlings and I Riley believe errs in (where (D.C.Cir.2003) “the police had concluding not they do control this case probable cause to arrest” before the because of “the custodial nature of the import search it was “of no that the search preceded” conduct that the search in arrest”); came actual before the United those cases. at 869. Op. Noting Ct. Smith, (9th States v. 389 F.3d a custodial place arrest takes “when a (“So Cir.2004) long as an arrest that fol- suspect’s position reasonable supported by lows a search have understood situation to independent the fruits of the constitute on a restraint freedom of move- search, precise timing of the search is degree ment of the which the law associ- critical”); v. Lugo, United States arrest,” ates with formal id. at 868-869 (10th Cir.1999) (“A F.3d legiti- Ochana, 270), F.3d at mate ‘search incident to arrest’ need not apparently Riley reads to mean а arrest”) (citation place take after omit- search always must follow a custodial ar- ted). Of the other three circuits to ad- may only rest and precede “the formal dress the issue one has held a Belton announcement of arrest.” Id. at 868. In must follow arrest and involving cases a search incident to arrest that case failed to mention Rawlings. See neither we nor the Court have Flores, (7th Ochana v. previously parsed the distinction between Cir.2003). arrests, “custodial” and “formal” but the at least Court did advert to such
Applying teaching of the Supreme Rawlings, a distinction in in Rawlings case, to the facts of this (a lawfully pre- I uphold believe we must Officer Jones’ long cede an arrest so as a “formal search of As the car. the Court acknowl- quickly heels”), edges, follow[s] [its] Op. at Ct. officers had course, taxonomy is, familiar from the cause to Powell and his cases, see, Miranda companion e.g., the search line of Berkemer and without regard McCarty, to the fruits that search. (“It (1984) 22-3312.01, §§ 22-3312.04(a);
D.C.Code
is settled
States,
safeguards prescribed
Scott v.
878 A.2d
United
Mi-
*10
(D.C.2005). Indeed, Officer
randa
applicable
Jones testified
become
as soon as a sus-
that the
pect’s
officers
the men be-
freedom
is
“detain[ed]”
of action
curtailed to a
something
than a
arrest.
If
n.
i.e.
less
custodial
degree associated with formal
pursuant
been
motorist who has
detained
of argu-
but assumed for the sake
stop
subjected
thereafter
traffic
is
detention,” id.
it was an
at
“illegal
ment
custody’
that renders him ‘in
treatment
106,
Riley,
Riley
officers ordered
to dis-
Raidings
said
that
the “formal
moped
mount
and searched his sock
on the
“quickly
arrest” must follow
heels
only after three of the
had sur-
officers
search,”
challenged
of the
id. at
way
him in
that he
rounded
such
here—and
happened
S.Ct.
—as
actually
“couldn’t have moved without
Riley
import
court in
held it
“of no
was
making
one
contact with”
of them.
the search came before the actual
F.3d at 1267.
court noted
if the
arrest”
“actual arrest” followed
(of Riley’s person)
preceded
seizure
thereafter,
1269,—
F.3d at
quickly
might
been deemed
again,
happened
as
here.
investigative stop pursuant
Terry
Ohio,
S.Ct.
The Court
seems to find
nonetheless
(1968), but
L.Ed.2d 889
for reasons
implicit
requirement
in these
decisions
“elude[dj”
court, the
Government con-
that the search follow the custodial arrest
ceded
Terry
thе initial seizure
not a
to hold
otherwise
“sever”
stop.
F.3d at 1267. The court there-
the search-incident-to-arrest
fore
an “arrest”
treated
encounter as
the warrant
“from its two
“converged
as of the moment the officers
protection
historical
of
rationales” —
on the
moped.”
Rawlings,
Id.
the sus-
safety and
preservation
ficer’s
evi
pect
at
was “detained”
the residence
until
“triggered”
dence—which are not
“an
visiting
permitted,
and not
unless he
arrest,”
is,
ripens
encounter
into an
search,
body
would consent to a
to leave
suspect
custody.
is taken into
Ct. Op.
for the 45 minutes it
took the
If any
at 867. But that
is not correct.
obtain
a search warrant. 448 U.S.
thing,
stronger
each rationale
2556. After the
returned
оfficers
custody
suspect
take a
into
than
warrant, Rawlings
with the
admitted own-
afterwards, and
so
certainly more
than
ership
drags
guest’s
found
another
suspect
taken into
after
has been
cus
100-01,
purse.
Id. at
handcuffed,
tody,
away in
and locked
Having
established
cause to ar-
See,
squad
e.g.,
back seat of a
car.
Thorn
Rawlings,
rest
the officers first searched
States,
618, 124
ton United
placed
him
then
him
arrest.
Id.
under
(2004)
(uphold
358
(Scalia, J.,
I
concurring) (noting
S.Ct. 2127
Because believe
this case
“incident to
upholding
suspect
cases
search after
is was
arrest” as the
I
squad
explicated
phrase,
handcuffed and secured in back of
Court has
would
legion”
mordantly criticizing go
question
car “are
and
whether the officers
had reason to believe Powell was a “recent
application
suspects
of Belton to
who no
Thornton,
occupant” of the vehicle. See
longer pose
danger
police). By
a
(“Belton
622,
at
U.S.
S.Ct. 2127
suspect
searching
they
arrest
allows
him,
passenger
com-
any
can
weapon
the officers
secure
he
partment of a vehicle incident to а lawful
might
have
otherwise
used to resist arrest
‘occupants’
of both
arrest
might
or
evidence he
otherwise
”
occupants’
‘recent
(quoting
destroyed if
got
opportunity.
2860)).
460,
at
I
believe
Nor, contrary
opinion
to the
conclusion,
did. The
reasonable
Court, is the search in this case inconsis
upon finding
urinating
night
two men
at
Iowa,
tent with Knowles v.
525 U.S.
an industrial area a “few feet”
from
(1998).
119 S.Ct.
the case of a custodial It
neither position the Government’s nor
mine that “probable cause to arrest
alone sufficient for apply.” Op.
Belton to
Ct.
869.
It is the “fact of the arrest” that
all
makes
Phillip GOLDSTEIN,
al.,
et
Petitioners
the difference.
Id. (quoting United States
v.
Robinson,
414 U.S.
234 n.
AND
(1973) (“The
SECURITIES
EXCHANGE
COMMISSION, Respondent.
danger
to the
officer flows from the
fact of the
prox
its attendant
No. 04-1434.
stress,
imity,
and uncertainty”)); see also
Appeals,
United States Court of
Chrisman,
Washington
District of Columbia Circuit.
(1982) (“Ev
ery
presumed
present
must
Argued Dec.
2005.
officer”).
of danger
arresting
risk
Decided June
2006.
Therefore,
a search
be “incident” to
regardless
order which
police proceed.*
*
however,
not,
suggests,
This is
as the Court
exposure”
danger
and to “the extended
taking
"blank check" for the
suspect
search the car
inherent
in "the
into cus-
whenever a
tody
transporting
driver has committed an
arresta-
him
sta-
Op.
ble offense. Ct.
must
tion.”
119 S.Ct.
Robinson,
complete
thereby subjecting
still