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, 100 A.3d 157, 164-65 (D.C.2014).
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, 26 A.3d 745, 751 (D.C.2011) (internal quotation marks omitted). We draw all reasonable inferences in favor of upholding the trial court’s ruling. Milline v. United States, 856 A.2d 616, 618 (D.C.2004). We review the trial court’s legal conclusions de novo. United States v. Taylor, 49 A.3d 818, 819 (D.C.2012).
“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, 49 A.3d at 821 (internal quotation marks omitted). Under one such exception, police officers may conduct a warrantless search of a vehicle, incident to an arrest, if they have reasonable, articula-ble suspicion to believe that the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The issue before this court en banc is whether such a search, which we will refer to as a Gant evidence search, is lawful if (a) the search precedes the arrest for the offense at issue; and (b) it is unclear whether the officers intended to arrest the suspect before conducting the search. Although the issue has not yet arisen with much frequency, as far as we are aware every court to have considered the issue has upheld the validity of such searches. See, e.g., State v. Fizovic, 770 S.E.2d 717, 720-22 (N.C.Ct.App.2015) (Gant evidence search of suspect’s car was lawful even though suspect was not arrested until after search and officer did not intend to arrest at time of search). The same issue has arisen in the context of other types of search incident to arrest, and the overwhelming weight of authority upholds the legality of such searches even when conducted before an arrest and in the absence of evidence that the officers subjectively intended to arrest the defendant at the time of the search. See, e.g., State v. J.J., 143 So.3d 1050, 1052 (Fla.Dist.Ct.App.2014) (per curiam) (upholding search as lawful incident to arrest where search preceded arrest and where officer explained search as based on officer safety; no indication that officer intended to arrest- at time of search); People v. Nguyen, 305 Mich.App. 740, 854 N.W.2d 223, 232-34 (2014) (police lawfully searched suspect’s person incident to arrest, even though search preceded arrest and officers did not believe they had probable cause to arrest at time of search), appeal denied, 497 Mich. 1035, 863 N.W.2d 327 (2015); State v. Sykes, 279 Wis.2d 742, 695 N.W.2d 277, 282-87 (2005); Moffitt v. State, 817 N.E.2d 239, 246 (Ind.Ct.App.2004); United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir.1998) (“In order to be a legitimate ‘search incident to arrest,’ the search need not take place after the arrest. A warrantless search preceding an arrest is a legitimate ‘search incident to arrest’ as long as (1) a legitimate basis for the arrest- existed before the search, and (2) the arrest followed shortly after the search. Whether or not the officer intended to actually arrest the defendant at the time of the search is immaterial to this two-part inquiry.”) (citations omitted). But see People v. Reid, 24 N.Y.3d 615, 2 N.Y.S.3d 409, 26 N.E.3d 237, 239-40 (2014) (search of suspect’s person was not lawful incident to arrest because, at time of search, suspect had not been arrested and officer had no intent to arrest suspect).
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, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), however, the Supreme Court addressed the same question in connection with the search of a defendant’s person incident to arrest, stating that “[w]here the formal arrest follow[s] quickly on the heels of the challenged search of [a suspect’s] person, we do not believe it particularly important that the search preceded the arrest rather. than vice versa.” 448 U.S. at 111, 100 S.Ct. 2556. Although Rawlings refers to both “formal arrest” and “arrest,” id. the lower courts, including this court, have consistently understood the rule announced in Rawlings to. apply without regard to any distinction between formal arrest and arrest; See, e.g., Millet v. United States, 977 A.2d 932, 935 (D.C.2009) (“A search incident to arrest may precede the actual arrest if probable cause exists, independent of the search, to justify the arrest,, and if the arrest follows quickly on the heels of the search.”) (internal quotation marks omitted); United States v. Powell, 376 U.S.App.D.C. 30, 32-33, 483 F.3d 836, 838-39 (2007) (en banc) (“where police had probable cause to arrest before search, it was of no import that the search came before the actual arrest”) (internal quotation marks omitted; citing cases).
’ 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, 590 N.W.2d. 703, 706 (N.D.1999) (“[I]f the person searched' is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested.’’) (internal quotation marks omitted). Second, in cases in which arrest is- inevitable, whether search precedes or follows arrest does not affect the degree of the intrusion on the suspect. Id. Third, courts are reluctant to micromanage the precise order in which officers who have probable cause to arrest conduct searches and arrests, particularly given the safety and other'tactical considerations that can be involved. See, e.g., Anderson v. State, 78 Md.App. 471, 553 A.2d 1296, 1301-02 (Md.Ct.Spec.App.1989).
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, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). For several reasons, we do not understand this language to establish a rule that the arrest must precede a search incident to arrest. First, in the cases relied upon by Mr. Lewis the Supreme Court was not actually addressing the question whether a lawful search incident to arrest must follow the arrest. See, e.g., Robinson, 414 U.S. at 234-35, 94 S.Ct. 467 (holding that police may lawfully conduct full search of arrestee’s person incident to arrest, even in absence of case-specific basis for search). Both the Supreme Court and this court have cautioned against treating such language as a dispositive holding. See, e.g., United States v. Debruhl, 38 A.3d 293, 298 (D.C.2012) (“We have stressed, however, that stare decisis is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question.”) (internal quotation marks omitted); Porter v. United States, 37 A.3d 251, 265 n. 20 (D.C.2012) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925)). Second, as previously noted, Mr. Lewis himself appears to concede that, despite the language upon which he relies, a completed arrest need not precede a search incident to arrest, as long as an arrest is under way. Third, interpreting that language to require an arrest to precede the search would contradict Rawlings.
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, 266 P.3d at 1224. Moreover, each of the justifications for the Rawlings rule applies to Gant evidence searches: permitting such searches to precede arrest in some instances will benefit suspects, because the results of the search may lead to release rather than the arrest that otherwise would have occurred; as to suspects who are going to be both searched and arrested, the order of those events does not affect, the degree of the intrusion; and tactical considerations may lead officers to reasonably prefer to conduct a Gant evidence search before completing an arrest.
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. -, 134 S.Ct. 1126, 1134, 188 L.Ed.2d 25 (2014) (citation, ellipses, and internal quotation marks omitted); see also, e.g., Ashcroft v. Al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080-81, 2083, 179 L.Ed.2d 1149 (2011) (Supreme Court has “rejected every request to examine subjective intent” in Fourth Amendment setting, with exception of (a) special-needs searches, (b) administrative searches, and (c) searches conducted in absence of individualized suspicion); Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (“An action is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances viewed objectively, justify the action. ... The officer’s subjective motivation is irrelevant.”) (brackets, emphasis, and internal quotation marks omitted); Devenpeck v. Alford, 543 U.S. 146, 154, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (“As we have repeatedly explained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. The Fourth Amendment’s concern with ‘reasonableness’ allows certain actions -to be taken in certain circumstances, whatever the subjective intent. Evenhanded law en
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, 556 U.S. at 351, 129 S.Ct. 1710. Under controlling Supreme Court law, the legality of such searches thus must be determined based on the objective circumstances, not on whether at the time of the search the officers subjectively intended to arrest the suspect. Cf. Peters v. New York, 392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968) (upholding search as lawful search incident to arrest; no direct evidence that officers subjectively intended to arrest suspect at time of search); id. at 68-69, 88 S.Ct. 1912 (Douglas, J., concurring); id. at 70, 88 S.Ct. 1889 (Fortas, J., concurring); id. at 79, 88 S.Ct. 1889 (Black J., concurring).
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, 543 U.S. at 154, 125 S.Ct. 588 (in determining whether there was probable cause to support arrest, courts are not limited to subjective grounds stated by officer). We thus do not understand Gant to have implicitly required a subjective inquiry into whether the-officers intend to arrest at the time they conduct a Gant evidence search.
Second, contrary to Mr. Lewis’s contention, Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), is consistent with an objective approach. In Knowles, a police officer stopped Mr. Knowles for speeding. 525 U.S. at 114, 119 S.Ct. 484. The officer issued Mr. Knowles a citation even though the officer could have arrested Mr. Knowles under Iowa law. Id. The officer then searched Mr. Knowles’s car, recovered a bag of marijuana and a pipe, arrested Mr. Knowles, and charged Mr. Knowles with drug offenses. Id. The Supreme Court ruled that the officer had conducted an illegal “search incident to citation” rather than a search incident to arrest. Id. at 116-19. Knowles turned on two objective circumstances. First, at the time of the search at issue, the suspect had been issued a citation rather than arrested. Second, “no further evidence of excessive speed was going to be found either on the person of the offender or in the offender’s car,” Id. at 118, 119 S.Ct. 484. The Knowles Court never mentioned the officer’s subjective intent and in no way suggested thát the- Court was adopting a novel exception to its general rule against consideration of subjective intent in determining the Fourth Amendment reasonableness of, searches based on particularized suspicion.
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, 392 U.S. 40, 63, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968). Under the approach we adopt, however, the search does not provide any part of the legal justification for the arrest. Rather, the arrest must be justified by preexisting probable cause.
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, 140 Md.App. 696, 782 A.2d 387, 409 (Md.Ct.Spec.App.2001) (decision to arrest cannot be a “consequence of what was found:in the search”). The Supreme Court, however, has never suggested such a principle. Moreover,- such a principle would be inconsistent with the objective approach that the Supreme Court has required in contexts involving particularized suspicion.
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., 830 F.3d 66, 101 n. 32 (2d Cir.2016) (“[W]hen items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items, not invalidation of the entire search, unless it is shown that those executing the warrant acted in flagrant disregard of the warrant’s terms.”) (internal quotation marks omitted); State v. Rindfleisch, 359 Wis.2d 147, 857 N.W.2d 456, 465 (Wis.Ct.App.2014) (same). Thus, evidence, obtained during a course of conduct'that is lawful at its inception can become inadmissible based--on subsequent events. That is the
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, 448 U.S. at 111, 100 S.Ct. 2556 (“Where the formal arrest follow[s] quickly on the heels of the challenged search of [a suspect’s] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”). Notwithstanding the dissent’s reservations about Rawlings, we are bound by Rawlings’s, holding. See generally, e.g., Mercer v. United States, 864 A.2d 110, 114 n. 4 (D.C.2004).
• 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, 414 U.S. 218, 230, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). But the Court in Rawlings relied on a number of decisions holding that a search incident to arrest can lawfully precede the arrest. Rawlings, 448 U.S. at 111, 100 S.Ct. 2556 (citing, e.g., United States v. Brown, 150 U.S.App.D.C. 113, 114-15, 463 F.2d 949, 950-51 (1972) (per curiam) (approving search incident to arrest where officer, who hád probable cause to believe defendant was in possession of narcotics, introduced himself and then searched defendant; no indication officer had seized defendant before search or intended to arrest defendant before search; “Even though a suspect has not formally been placed under arrest, a search of his person can be justified as incident to an arrest if an arrest is made immediately after the search, and if, at the time of the search, there was probable cause to arrest.”)). Although one can also
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. 556 U.S. at 343 n. 4, 129 S.Ct. 1710. Nothing in Gant suggests that it would be unusual for lawful searches incident to arrest generally, or Gant evidence searches specifically, to precede formal arrest.
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, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), spoke in terms of searches incident to arrests that had already occurred. Post at 255-57. According to the dissent, this language reflects a considered judgment that evidentiary searches incident to arrest should be limited in conformity with the common-law rule that formal arrest must precede a search incident to arrest. Id. Moreover, the dissent reasons, the Supreme Court in Gant adopted.the reasoning of Justice Scalia’s concurrence in Thornton. Id. Therefore,
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. 541 U.S. at 618, 124 S.Ct. 2127. Justice Scalia thus had no occasion to address whether evidence searches incident to arrest may, in conformity with Rawlings, precede the formal arrest. Although Justice Scalia. expressed his conclusion in terms reflecting the circumstances of Thornton, that cannot reasonably be understood to reflect a considered intent to implicitly carve out an exception to Rawlings. The dissent itself recognizes the applicable general principle. Post at 259-60 (quoting Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (“It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes ' writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.”)). Third, Gant does not itself impose a requirement that Gant evidence searches must follow the formal arrest. In Gant too the defendant had been formally arrested before the search at issue, 556 U.S. at 336, 129 S.Ct. 1710, so the Court had no occasion to consider the applicability of Rawlings. But the Supreme Court’s language in Gant suggests that the Court in Gant understood and intended that Rawlings would continue to permit searches incident to arrest to be conducted before the formal arrest. For example, in explaining the basis for Gant evidence searches, the Court states that in some cases “the offense of arrest”—not, as the dissent would have it, the fact of arrest—“will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Gant, 556 U.S. at 344, 129 S.Ct. 1710; see also id. at 335, 129 S.Ct. 1710 (“[C]ircumstances unique to the automobile context justify a search incident- to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”); id. at 343, 129 S.Ct. 1710 & n. 4 (indicating that searches incident to arrest for safety purposes may be conducted before officers “fully effectuate an arrest”). Fourth, we are doubtful that as a lower court we could appropriately infer that Gant implicitly intended to carve out an exception to the holding of Rawl-ings that searches incident to arrest may precede the formal arrest. See, e.g., Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (rejecting proposition “that other courts should ever conclude that [the Supreme Court’s] more recent cases have, by implication, overruled an earlier precedent”). Fifth, as we have already noted, supra at 239, every court of which we are aware to have decided the issue has held that Rawlings applies to Gant evidence searches.
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., 556 U.S. at 344, 129 S.Ct. 1710 (“Neither the possibility of access [to a weapon] nor the likelihood of discovering offense-related evidence authorized the search in this case.”). The search in the present case differs critically from the type of search precluded in Gant, because the search of the car in the present case rested on particularized reason to believe that the car contained evidence of the POCA offense. Upholding the legality of the search in the present case in no way undermines Gant’s rejection of suspicionless searches. For the same reason, upholding the search in this case will not permit officers to “rummag[e] at will.” Post at 252-53. The Supreme Court used the term “rummage” in Gant to refer to searches not based on particularized suspicion. Id. at 345, 129 S.Ct. 1710 (permitting search “when there is no basis for believing evidence of the offense might be found in the vehicle” “implicates 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”); see also, e.g., Merriam-Webster’s Collegiate Dictionary 1089 (11th ed. 2012) (defining “rummage,” inter alia, as “to engage in an undirected or haphazard search”). Because it was based on reason to believe that the car contained evidence of POCA, the search in this case cannot reasonably be described as involving “rummaging at will.” Post at 252-53 (brackets omitted).
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. -, 133 S.Ct. 1958, 1970, 186 L.Ed.2d 1 (2013) (“[PJrobable cause provides legal justification for arresting [a suspect], and for a brief period of detention to take the administrative steps incident to arrest. ... The validity of the search of a person incident to a lawful arrest [is settled].”) (internal quotation marks omitted); (b) the suspect recently occupied a vehicle, Gant, 556 U.S. at 343, 129 S.Ct. 1710; (c) the police have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense, id.; (d) at the time of the search, the police have not released the suspect or issued the suspect a citation for the offense, Knowles, 525 U.S. at 118-19, 119 S.Ct. 484; and (e) the suspect’s formal arrest for the offense follows quickly on the heels of the search, Rawlings, 448 U.S. at 111, 100 S.Ct. 2556.
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, 100 A.3d at 164-65; Lewis, 107 A.3d at 603. Ms. Gibbs had not been released or issued a citation at the time of the search. Finally, Mr. Lewis does not dispute that officers made a prompt formal arrest of Ms. Gibbs for POCA. We therefore reverse the trial court’s order of suppression and remand for further proceedings.
So ordered.
. 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, 100 A.3d at 159-60. The division affirmed tire trial court’s suppression order in Mr. Nash’s case. Id. at 162-64. The current proceeding before the en banc court involves only Mr. Lewis’s case.
. 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, 541 U.S. 615, 124 S.Ct. 2127,
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, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (identifying the rationales justifying the search-incident-to-arrest exception—disarming the suspect and securing evidence related to the. offense of arrest that the suspect might destroy); Arizona v. Gant, 556 U.S, 332, 343, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (holding that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’ ”) (citation omitted).
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, 395 U.S. at 763, 89 S.Ct. 2034, and it was only after the search turned up a gun that Officer Brown decided to arrest Ms. Gibbs after all.
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, 541 U.S. 615, 627, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring). Officer Brown’s wait-and-see approach to Ms. Gibbs’s arrest involved the type of “rummaging] at will” that the Supreme Court has sought to protect against, see Chimel, 395 U.S. at 767, 89 S.Ct. 2034, and this search of Mr. Lewis’s car, “conducted outside the judicial process, without prior approval by judge or magistrate,” was not reasonable under the Fourth Amendment, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
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, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Supreme Court set out to address a problem in Fourth Amendment doctrine that stemmed from its decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton, the Court applied Chimel to the automobile context and held that when the police have lawfully arrested a recent occupant of a car they may search the passenger compartment “as a contemporaneous incident of that arrest.” Id. at 460, 101 S.Ct. 2860. Applying- the principles of Chimel, the Court predicated its decision on the “generalization” that articles in the passenger compartment “are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary items,’ ” Id. (quoting Chimel, 395 U.S. at 763, 89 S.Ct. 2034). Although the Court in Belton cautioned that its holding “in no way alter[ed] the fundamental principles established in the Chimel case, regarding the basic scope of searches incident to lawful custodial arrests,” id. atm..3, the Court in Gant acknowledged .that in practice Belton searches had come to exceed their permissible scope under Chimel and were being conducted solely for investigative purposes, Gant, 556 U.S. at 341-43, 129 S.Ct. 1710. On this expansive reading of Belton,
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, 129 S.Ct. 1710 (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One such exception, established by Chimel, is for searches of a suspect that are incident to the suspect’s arrest and that are intended to ensure that the suspect does not have the ability to access weapons or destroy evidence. Id. (citing Chimel, 395 U.S. at 763, 89 S.Ct. 2034). The Gant Court held that this Chimel exception, which had been impermissibly broadened for vehicle searches under Belton, authorized the search of a car incident to a recent occupant’s arrest “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. at 343, 129 S.Ct. 1710. With this holding, the Court made clear that Chimel cannot be construed 'to authorize the' investigative vehicle searches then being conducted under Belton. Id. at 347, 129 S.Ct. 1710 (“Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis.”). The Court also held that separate and apart from Chimel’s two traditional justifications for the warrant exception, “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Id. at 343, 129 S.Ct. 1710 (quoting Thornton, 541 U.S. at 632, 124 S.Ct. 2127 (Scalia, J., concurring)).
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, 129 S.Ct. 1710. In the Court’s view, the officers’ search was unreasonable. Id. at 344, 129 S.Ct. 1710. The two Chimel rationales for a search incident to arrest did not apply because Mr. Gant was handcuffed and secured in the back of a police car. Id. The rationale underlying the vehicle exception also did not apply, as there was no chance of finding evidence of the “crime of arrest”—driving without a license—in Mr. Gant’s car. Id.
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, 556 U.S. at 342, 129 S.Ct. 1710 (citation omitted). By permitting a search of the vehicle incident to probable cause to arrest as part of a Gant vehicle search, the majority interprets Gant as authorizing law enforcement to conduct a broad investigatory search of the vehicle before making a decision about whether to arrest. This reading of Gant eviscerates the limits the Court sought to impose on Belton car searches, and in fact would give the police more latitude to search than they had under lower courts’ pre-Gant reading of Bel-ton, which authorized a search incident to arrest only if there had been “a lawful custodial arrest” and the search was “a contemporaneous incident of that arrest.” Belton, 453 U.S. at 460, 101 S.Ct. 2860. We cannot fairly read Gant as professing to scale back Belton’s investigatory searches while at the same time authorizing a search-incident-to-probable-cause-to-arrest exception that by definition invites such investigatory searches.
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, 556 U.S. at 343, 129 S.Ct. 1710, the Court made clear that it was still a category of search incident to arrest, one whose rationale—securing offense-related evidence that might be found in the vehicle— is informed by the same concerns as those that inform the evidence-preservation rationale underlying Chimel. Like the traditional Chimel exception, then, this Gant vehicle search was in no way intended to authorize the type of open-ended investigative searches of which the Gant Court expressly disapproved in curbing Belton’s excesses. Rather, the Gant search was conceived as a narrow exception that would allow the police to search a ear for additional evidence of the crime for which the arrestee will be charged. This search was designed only to address “circumstances unique to the vehicle context”—a car that could be driven away from the scene with relevant evidence still inside. See id.; Wyoming v. Houghton, 526 U.S. 295, 304, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (noting that “in all car-search cases, the ‘ready mobility’ of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained”).
The language in Gant adopting this vehicle exception was taken from Justice Scalia’s concurrence in Thornton, 541 U.S. at 632, 124 S.Ct. 2127. In Justice Scalia’s view, even in the absence of Chimel-like concerns, officers should be able to search a vehicle for evidence of a crime of arrest. On the facts of Thornton, where the police arrested Mr. Thornton on narcotics charges after finding marijuana and cocaine on his body in a lawful patdown, officers should also have been able to
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, 541 U.S. at 629, 124 S.Ct. 2127. He cited pre-Chimel cases from 1914 through 1950 in which the Court had approved of searches for evidence “relevant to the crime for which the suspect had been arrested.” Id. In every one of these cases, a suspect had been formally arrested.
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, 124 S.Ct. 2127 (quoting Smith v. Jerome, 47 Misc. 22, 93 N.Y.S. 202, 203 (Sup.Ct.1905) (“This right and duty of search and seizure extend, however, only to articles which furnish evidence against the accused.” (emphasis added))).
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, 124 S.Ct. 2127. Justice Scalia therefore indicated that the exception should be carefully circumscribed to apply only to “relevant” evidence against the accused, and that the search of Mr. Thornton’s car was legal because Mr. Thornton “was lawfully arrested for a drug offense” and the police had reason “to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest.” Id. (emphasis added).
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, 541 U.S. at 627, 124 S.Ct. 2127. Yet both arguments overlook the fact that searching without a warrant “is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the search unlawful.” Id.
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, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Ante at 240-41, 241-42. But these justifications, in turn get the warrant requirement backwards and derive from a strained reading of Rawlings that disregards Supreme Court precedent predicating the search-incident-to-arrest exception—whether under Chimel or Gant—on a formal arrest or perhaps, in rare circumstances like in Rawlings, an imminent and inevitable arrest.
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, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (general warrant requirement is “subject only to a few specifically established and well delineated exceptions ... [that] are jealously and carefully drawn” (internal quotation marks and citations omitted)). With the exception of Rawlings, the Supreme Court’s cases on the search-incident-to-arrest exceptions of Chimel and Gant involve circumstances in which a formal arrest was completed and explicitly state the exception in terms' of a search incident to a lawful arrest.
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. 448 U.S. at 100, 100 S.Ct. 2556. Later, the occupants were read their Miranda
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, 323 U.S. 126, 132-33, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (“re-mindfing] counsel that words of [the Court’s] opinions are to be read in the light of the facts of the case under discussion” and that “[g]eneral expressions transposed to other facts are often misleading”).
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, 590 N.W.2d 703, 706 (N.D.1999), for the proposition that “if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested,” ante at 240, the Overby court was itself divided in that regard. Chief Justice VandeWalle, ■joined by another justice, wrote that “[t]he insult remains,” adding, “[mjore importantly,” that
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, 78 Md.App. 471, 553 A.2d 1296 (Md.Ct.Spec. App.1989), says nothing beyond that unremarkable truism. See id. (noting that it would be an “absurdity” to require officers in a “combat situation” right before arrest to “lose critical seconds,” and lose the chance to “beat[] his opponent to the draw,” in order to “say the operative words, you are under arrest”).
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, 403 U.S. at 454, 91 S.Ct. 2022; see also Riley v. California, - U.S. -, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (recognizing that “a warrant ensures that the inferences to support a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime’ ” (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948))).
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, 517 U.S. 806, 116 S.Ct 1769, 135 L.Ed.2d 89 (1996). See ante at 243-44. This argument pervades the section of the majority’s opinion defending its conclusion that a pre-arrest Gant vehicle search is permissible even where the officers had no intention of executing a formal arrest.
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, 563 U.S. 731, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), in insisting that the Court’s “repeated[] rejection]” of “a subjective approach,” ante at 243 (quoting Fernandez v. California, — U.S. -, 134 S.Ct. 1126, 1134, 188 L.Ed.2d 25 (2014)), bolsters the conclusion that pre-arrest searches are permissible where officers subjectively do not intend to arrest. As the Supreme Court made clear in Florida v. Jardines, “those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real
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, 556 U.S. at 345, 129 S.Ct. 1710. With its new anomalous conception of the Gant vehicle search, the majority opinion downplays this central concern, discarding a key limiting principle in the foundation of Gant itself that is designed to address precisely this problem—“the fact of prior lawful arrest.” Thornton, 541 U.S. at 630, 124 S.Ct. 2127.
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, 541 U.S. at 628, 124 S.Ct. 2127.
. These cases include United States v. Rabinowitz, 339 U.S. 56, 58, 60-64, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Harris v. United States, 331 U.S, 145, 148, 151-52, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Marron v. United States, 275 U.S. 192, 198-99, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Agnello v. United States, 269 U.S. 20, 30-31, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct 341, 58 L.Ed. 652 (1914).
. 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, 556 U.S. at 343 n. 4, 129 S.Ct. 1710.
.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, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. 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, 463 F.2d 949, 950 (D.C.Cir.1972) (where the officer’s search was clearly, intended to confirm or dispel that the envelope "protruding from appellant’s shirt pocket” contained narcotics— as the appellant's eyes were "glassy,” he was behaving suspiciously in an area where the officer had “frequently observed" narcotics transactions, and the envelope was “of the type in which [the officer] had found narcotics on previous occasions”—the court upheld the search even though the suspect had “not formally been placed under arrest” at the time the officer seized the envelope); Bailey v. United States, 389 F.2d 305, 307-09 (D.C.Cir.1967) (holding that where the government conceded that "in law the arrest of the car’s [occupants] took place at the time [the officer] approached the car, perhaps with gun drawn, and told appellants to sit still and keep their hands in plain sight,” that officer could, as a search incident to arrest, confiscate a wallet that he saw on the car floor, even though he had not yet conducted the formal arrest). For this reason, and because the circumstances of those. cases triggered no concerns about pre-textual searches, the cases also do not control
. 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, 24 N.Y.3d 615, 2 N.Y.S.3d 409, 26 N.E.3d 237, 239 (2014) ("It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not.”); State v. Funkhouser, 140 Md.App. 696, 782 A.2d 387, 406 (Md.Ct.Spec.App.2001) ("It is axiomatic that a search incident to lawful arrest is absolutely dependent on the fact of an actual arrest.”). And even where courts have so construed Rawlings, we are aware of no data from 1980 to the present indicating the absence of such abuses. Indeed, it is far from clear how such discriminatory pretextual searches would make their way into published judicial decisions in the first place. These searches will receive judicial scrutiny where they fortuitously uncover evidence of a more serious crime and thus lead to an arrest, but will not in the many cases in which the police find nothing of interest.
. 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, 547 U.S. 398, 403-06, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (officers’ subjective motivations in entering a house were irrelevant where police were providing assistance under the emergency aid exception to the warrant requirement).
. 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, 271 F.2d 829, 831 (D.C.Cir.1959) ("According to the officer’s own testimony ... the search did not turn upon an arrest for vagrancy, and to attribute it to such an árrest would be to take an unrealistic view of the evidence. The arrest for vagrancy was incidental to the search, rather than the converse. ... We have more than once excluded evidence obtained by a search which in truth was not incidental to an arrest, but when in
. 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, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), for example, the Court held that under the independent source doctrine, an unlawful warrantless entry into a warehouse would not require suppression of evidence obtained during a subsequent warrant-based search of the warehouse if the government could establish (1) that the warrant was based on information independent of what the officers saw during the warrantless entry and (2) that the officers would have sought a warrant even if they had not previously entered the warehouse. Id. at 541-43, 108 S.Ct. 2529; see also id. at 547, 108 S.Ct. 2529 (Marshall, J., dissenting) (stating that the majority opinion in Murray "makes the application of the independent source exception turn entirely on an evaluation of the officers' intent”); United States v. Jadlowe, 628 F.3d 1, 9-10 (1st Cir.2010) (in independent-source case where officer testified that he “would have sought a warrant even had the officers not seen the bricks of cocaine in the garage,” the court explained that the "police officers’ subjective intent to seek a warrant is a factual determination subject to clear error review”); United States v. Restrepo, 966 F.2d 964, 972 (5th Cir.1992) (explaining that "the core judicial inquiry before the district court on remand is a subjective one; whether information gained in the illegal search prompted the officers to seek a warrant to search [the residence]”).