*1 America, UNITED STATES of
Appellee,
Timothy LEWIS, Appellant. John
No. 98-3856.
United States Court of Appeals,
Eighth Circuit.
Submitted: March
Filed: July
Rehearing and Rehearing En Banc 19,1999.* Aug.
Denied Rennicke,
James J. Minne- Minneapolis, sota, argued, for Appellant Cheever, Michael L. At- Assistant U.S. torney, (B. Minnesota, argued Jones, brief), Todd Appellee. * McMillian, Judge Arnold, Judge grant Richard S. the petition. would Arnold, Judge Morris S. Murphy *2 and look very nervous He had HEANEY, pocket. Circuit and BEAM Before: Jin- around. Officer darting GOLDBERG,1 eyes the his were Judge of and Judges, and told steps two forward then took dra of International States Court He pocket. his hand out to take his Lewis Trade. un- him placed Lewis and then handcuffed BEAM, Judge. open bottle loitering with an for der arrest with charged Lewis was Timothy ordinance. Minneapolis John of a in violation of possession of jury aby and convicted Lewis, Officer Jindra arresting After distribute intent cocaine base with lump he felt a whereupon him patted down 841(a)(1) and § U.S.C. violation of 21. Lewis had pocket where in the same 841(b)(l)(B)(iii). the district appeals He reached Officer Jindra placed his hand. suppress his motion of court’s2 denial a one ounce out pulled and pocket into the incident a search during evidence found to be crack to him appeared what rock of arrest was the grounds arrest on his for addi- then called The officers cocaine. unlawful. affirm. at arrived More officers up. tional back squad in a placed and Lewis was the scene I. BACKGROUND At station. police to a local car and taken facts is derived of the Our recitation Officer Jin- station, Benfit and Officer the find- judge’s magistrate the from primarily An hour af- Lewis. each interviewed dra pre- report and recommendation ings in a arrest, warrant was a search Lewis’s ter motion hearing on Lewis’s after a pared had which Lewis address executed Jef- officers April suppress. On evi- residence. Additional given as his Min- Jeffrey Binfet frey Jindra and at that location. seized dence was responded to Department Police neapolis drinking at a complaint public citizen’s of co- possession for was indicted Lewis arrived The officers address. residential in vio- intent to distribute with caine base squad car in an unmarked at the address 841(a)(1) § and of 21 U.S.C. lation Raid T- Minneapolis Police wearing and 841(b)(l)(B)(iii). suppress: moved to He arrival, officers their shirts. (1) during the obtained evidence in the people gathered several observed (2) arrest; his state- to his incident search addition, there house. yard front and police; to the ments and admissions sitting parked in a three males car were (3) of his evidence from search Lewis stood of the residence. front recom- magistrate judge3 residence. to the talking He was by the car. curb motions be denied. that all the mended drinking car and was occupants in the regards to the with Specifically, an identified what Officer Jindra from from the obtained the evidence suppress liquor. of malt open bottle mag- incident to Lewis’s search the offi- that because judge found and istrate their parked vehicle The officers drinking from Lewis cers observed According to Officer approached Lewis. lawfully bottle, he had been hearing, at the testimony Jindra’s and 364.45 364.40 Minneapolis ordinances stand- to a woman liquor the malt handed of the street backwards, loitering the curb for him, walking beside started ing Therefore, liquor.4 of malt open right pants’ bottle hand into right his his put Noel, Franklin Goldberg, 3. The Honorable W. Richard 1. The Honorable of Minneso- Magistrate Judge the District International Stales Court of of the United ta, presiding. Trade, by designation. sitting Minn., Ordinances Code of Magnuson, Chief A. Paul The Honorable pertinent part: § 364.40 states Court for the Judge, States District con- Consuming public. No District Minnesota. intoxicating liquor defined sume concluded, judge the search of Lewis’s erroneous. Thus the sole remaining issue person was valid as a search incident to a before us is whether the district court any lawful arrest and evidence obtained as correctly concluded that Lewis’s arrest a result thereof was admissible. was lawful. court, The district after conducting de *3 outset, At the we note that Lewis does record, novo review of adopted dispute that the officers observed him magistrate judge’s report and recommen- violating the Minneapolis ordinance pro- dation, and denied Lewis’s sup- motions to hibiting loitering possession open of an A press. jury trial followed and Lewis Nevertheless, bottle. he claims that such
was convicted. to sentencing, Prior is, most, misdemeanor, violation a moved for reconsideration the order because Minnesota Rule of Criminal Pro- denying his suppress. It motions was cedure 6.01 permits custodial arrests for denied and Lewis was sentenced to 97- only misdemeanors under certain circum- imprisonment. months appeal, On Lewis’s stances, none of present which were in his argument sole his arrest was unlaw- case,'the officers only were therefore au- ful under the Fourth and Fourteenth citation, thorized to issue a him not to Amendments, and drugs therefore the ob- arrest him.5 during tained the search incident to his arrest, any Bell, as well as In statements taken United States v. arrest, following Cir.1995), sup- should have been rejected this court a similar pressed “fruit poisonous of the argument. tree.” In we denied a defen- dant’s motion to suppress cocaine base dis- II. DISCUSSION covered in a search incident to an arrest for riding bicycle a without a headlight. review district fact court’s finding in The district court in support disposition granted of its Bell had of a motion pretrial suppress grounds clearly under a Bell’s arrest erroneous was unlawful standard. See United Iowa only per- because law Garlock, mitted the officers to issue Bell a citation We review de for bicycle novo the court’s ultimate but not to charge, arrest application reversed, of the to these him. id. facts. See See at 503. We holding id. Our of the examination record reveals that “when a federal court must decide findings none of the clearly made are whether to exclude evidence obtained Statutes, 340A.101, Minnesota Section Sub- intoxicating with intent to such consume nonintoxicating division liquor or liquor non-intoxicating malt liquor. or malt Statutes, as defined Minnesota Section 6.01, 5. Minnesota Rule of Procedure Criminal 340A.101, (1) Subdivision while on a l(l)(a) provides: subd. street, sidewalk, public highway, alley, bou- levard, any place frequented by pub- or acting Law enforcement officers without a lic; (2) warrant, any private property proceed without the who have decided property; consent of the (3) prosecution, owner of such persons or shall issue citations to upon public high- misdemeanors, while in a subject vehicle to lawful for arrest way. appears unless it reasonably to the officer Minn., Minneapolis, Code of Ordinances necessary pre- that arrest or detention § part: 364.45 pertinent states in bodily vent harm to the accused or another Loitering possession conduct, open bottle. No or further criminal or that there is street, any public loiter in a substantial the accused likelihood sidewalk, highway, alley, any respond boulevard or will fail to to a citation. The cita- public arrest, property, any private other may or on tion be issued lieu of an or if property made, without consent of the owner of an arrest has been in lieu of contin- property, possession detained, such any while ued detention. If the defendant is receptacle
bottle containing or other report intoxi- the officer shall to the court cating liquor non-intoxicating or Ordinarily, malt li- reasons for the detention. quor opened, which has been or the seal punishable misdemeanors not incarcera- broken, removed, tion, partially or the contents a citation shall be issued. to exceed seven by a fine of not search, by- punished arrest, seizure or through ($700.00) imprison- or is hundred dollars inquiry officers, appropriate (90) days or ninety search, vio- exceed ment for or seizure whether Minn., Constitution, of Ordi- Code not wheth- both.” the Federal lated 1.30(a). legisla- Minnesota arrest, search, § violated or seizure nances er the Bell, we Under a misdemeanor at 504. has defined law.” Id. ture is not here not more inquiry a sentence of appropriate which think the “crime for valid than was more a fine of not days Lewis’s than 90 or statute, Minn. procedure both, imposed.” criminal $700, may be Minnesota’s also law. See federal fact that light § but rather under Stat.Ann. 609.02. Wright, the misdemeanor dispute there is no *4 (6th the offi- presence 1433-37 the of in was committed the cers, Lewis’s arrest we believe a search “It settled that is well law- were person of his subsequent search ais traditional to a lawful incident ful. of requirement the warrant exception to States the Fourth Amendment.” III. CONCLUSION 224, 218, Robinson, 94 S.Ct. 414 U.S. v. (1973). Furthermore,
467, 427 reasons, 38 L.Ed.2d the affirm we For the foregoing inci person authority to search the “[t]he sup- denial of the court’s district ... does custodial arrest dent to a lawful press. may later a court what depend particular probability in was the decide concurring. HEANEY, Judge, Circuit evidence weapons or that arrest situation be- majority’s opinion I concur the of upon the found
would in fact be
v.
that United States
cause I
235,
It
at
94 S.Ct.
suspect.” Id.
the
(8th Cir.1995),
is control-
which estab
lawful arrest
is the fact of the
Eighth
the
ling precedent
authority
search. See
lishes
officer’s
illegality of Lewis’s
the
issue of whether
id.
under Minnesota
warrantless arrest
court’s
with the district
agree
that arrest
the search incident to
renders
lawfully arrest
Lewis was
conclusion that
However,
I believe
unconstitutional.
that is
noted
Supreme
has
ed. The
Court
suggest
incorrectly decided and
Bell was
the common
of
principle
a well-established
good opportunity
this case provides
permitted
officer is
police
law that a
by
the
decision
of
Bell
for reconsideration
if a misdemeanor
a warrant
arrest without
en
our court
banc.
See
presence.
the officer’s
committed in
well-estab-
quarrel
I have no
the
Watson,
411,
U.S.
423
United States
standards
federal
principle
lished
820,
421-24,
L.Ed.2d 598
418,
46
S.Ct.
96
judging
legality
the
applied
must be
City
(1976);
Higbee v.
San
see also
v. Rob-
Under United
the search.
Cir.1990)
F.2d
379
Diego, 911
inson,
218, 224,
U.S.
never been
“has
(stating
practice
that this
(1973),
ar-
a lawful custodial
L.Ed.2d 427
the
successfully challenged and stands
a warrantless
prerequisite
is a
rest
Smith,
land”);
law of
however,
case,
we do
search.
Cir.1996)
(same);
1414, 1416
arrest, and thus the
have a lawful custodial
1227, 1235
Attaway,
Wilson
the Robinson
fall under
search should not
(11th Cir.1985) (same).
It
is clear that
war-
Fourth
exception to
Amendment’s
Minneapolis ordi
Lewis’s violation
requirement.
rant
a misdemeanor.
nances constitutes
Re,
U.S.
v. Di
In United States
provides
of Ordinances
Minneapolis Code
(1948),
L.Ed.
of a violation
“Every person convicted
had been
the defendant
found that
...
be Court
any provisions of this Code
New York state officers who
of Santa Ana municipal code. See id. at
lacked arresting authority under state law.
searching
brothers,
The Court
then reversed the conviction officers discovered counterfeit
bills
their
resulting from evidence seized in a search
pockets. See id. The Mota court re-
incident to the
arrest.
id.
See
at
68 versed the district court’s denial of the
S.Ct. 222. The Di Re court specifically appellants’ motion to suppress the evi-
rejected
government’s
argument
dence. The court found that the evidence
validity
of an arrest
without warrant
seized from the appellants was unlawfully
for a federal crime is a matter of federal
obtained and should have been suppressed,
law to be
determined
a uniform rule
since the officers were required
only
applicable in all federal courts. See
id.
issue a citation and were without
legal
589,
currence, however, there importantly, Most
precedent issue. 31, 99 DeFillippo, 443 U.S. Michigan (1979), the 61 L.Ed.2d “[wjhether an officer stated
Court ordinarily an arrest to make
authorized instance, in the first
depends, 2627; see
law.” 443 U.S. Mota,
also United And, although implic- decision the Bell
itly question, into called