SEARCH INCIDENT TO ARREST MAY OCCUR PRIOR TO ARREST IF PROBABLE CAUSE EXISTS, EVEN WHERE THE CRIME FOR WHICH PROBABLE CAUSE EXISTED IS DIFFERENT FROM CRIME OF SUBSEQUENT ARREST

Courtesy of James R. Touchstone, Esq.

On January 9, 2019, in the case of United States v. Johnson, 2019 U.S. App. LEXIS 640 (9th Cir. Jan. 9, 2019), the Ninth Circuit Court of Appeals held that a search incident to a lawful arrest, that occurred before the arrest itself, was permissible if probable cause existed.  The Court further noted that the probable cause supporting the arrest was sufficient to justify the search, even if the crime for which the person was arrested was different from the crime for which probable cause actually existed.

Background

In August 2015, Sergeant Clint Simmont of the East Palo Alto Police Department stopped driver Lamar Johnson.  Simmont, based on his experience on the San Mateo County Narcotics Task Force and patrolling East Palo Alto, identified the smell of burnt and fresh marijuana.  He asked Johnson for his driver’s registration and proof of insurance.  Johnson said he didn’t have such information, and, when asked to confirm, pretended to search his glove box but did not “actually manipulate any items,” according to Sergeant Simmont.  Police dispatch told Simmont that Johnson had been arrested for parole violations, which indicated to Simmont that Johnson had been convicted of a felony.  Simmont asked Johnson to step out of the vehicle and searched his person, finding that Johnson was wearing a bulletproof vest.  Sergeant Simmont arrested Johnson for being a felon in possession of body armor.  Simmont and backup police officers subsequently searched Johnson’s car, and discovered a loaded handgun, plastic bags, scales, a pill bottle containing acetaminophen/hydrocodone pills, and concentrated cannabis.  Johnson was taken to a police station, where a second search of his person revealed additional controlled substances.  During the course of a separate investigation the following year, San Mateo County police conducted a warrant search of Johnson’s home.  The search of Johnson’s home recovered a firearm, ammunition, scales, plastic bags, pills in bottles, and cocaine base.

Johnson was indicted on nine counts of drug and firearm offenses.  Johnson’s pretrial motions to suppress all evidence from the search of his person, car, and his home were denied by the District Court.  Johnson then stipulated to certain facts and the District Court held a bench trial.  The government dismissed two counts and the District Court convicted Johnson on the remaining seven. At sentencing, the District Court increased Johnson’s offense level by four levels because he had used body armor during the commission of a drug trafficking crime. Johnson appealed, arguing that the District Court erred in denying his motion to suppress and by applying the body armor enhancement to his sentence.

Discussion

The Ninth Circuit Court of Appeals explained that the search incident to a lawful arrest exception to the warrant requirement permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[1]  The Court noted that it was well-established in the Ninth Circuit that the search in this context does not necessarily have to follow the arrest to be valid under the Fourth Amendment.[2]  However, probable cause must exist at the time of the search, and the arrest must follow “during a continuous sequence of events”[3] to comport with the Fourth Amendment.  The Court next noted that it was also well-established that when an officer’s known facts provide probable cause to arrest for an offense, the officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.”[4] The Court explained that the case here was about whether these two well-established principles could coincide without violating Fourth Amendment protections against unreasonable searches and seizures.  Johnson argued on appeal that to do so would create a “search incident to probable cause” rule, allowing officers to search a person whenever probable cause to arrest exists, and leading to pre-textual and discriminatory fishing expeditions.

The Court explained that the search incident to an arrest exception was based upon the need to disarm and to discover evidence. Courts evaluate whether the justifications for the search incident to lawful arrest exception retain force in the context of a search performed by an officer who has probable cause to arrest and shortly thereafter does arrest.  (Knowles v. Iowa, 525 U.S. 113 (1998).)  The Court found that the justifications for the exception did not lose any of their force in a context where the arresting officer’s subjective crime of arrest was different than the crime for which probable cause existed, as long as: (1) the search was incident to and preceding a lawful arrest (i.e. there was probable cause to arrest); and (2) the arrest and search occurred roughly during the same period of time.

Rejecting Johnson’s argument that such a standard would invite discriminatory and pretextual searches, the Ninth Circuit did not think that this case was materially different from cases where the search happened before the arrest and the arresting officer’s subjective crime of arrest was the same as the crime for which probable cause existed. The Court explained that the “safeguards of probable cause and an actual custodial arrest” in both situations sufficiently protect individuals’ Fourth Amendment rights from Johnson’s scenario.

The Ninth Circuit also rejected the Johnson’s argument that, even applying this standard, the search of his person was unconstitutional because the officer did not have probable cause to arrest him.  The Court found that the smell of fresh and burnt marijuana in Johnson’s car, along with plastic baggies in the glove compartment, and Johnson’s pretense of searching the glove compartment, suggested to Sergeant Simmont a fair probability that Johnson had committed, or was about to commit, the offense of marijuana transportation.  The Court thus concluded that Simmont’s search of Johnson’s person prior to arresting Johnson was constitutional as it was supported by probable cause.

The Court of Appeals also held that the search of Johnson’s car was justified under the automobile exception to the warrant requirement because when Sergeant Simmont approached the car, he immediately smelled a combination of burnt and fresh marijuana, providing probable cause to search the car.  Finding the District Court’s other judgments pertaining to the home search and sentencing also valid, the Ninth Circuit Court of Appeals accordingly affirmed.

HOW THIS AFFECTS YOUR AGENCY

The Ninth Circuit here held that that Knowles v. Iowa does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed. The Court emphasized the importance of probable cause for the search.  In the absence of a warrant, an officer’s ability to clearly articulate the facts supporting probable cause is critical to protect against unreasonable search allegations.  The facts articulated by the officer here were pivotal in the Court’s analysis.  It is also important to note the temporal component of the Court’s decision.  Specifically, the search and subsequent lawful arrest must be in close proximity in time.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.


[1] Arizona v. Gant, 556 U.S. 332, 339 (2009).

[2] Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).

[3] United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004).

[4] Devenpeck v. Alford, 543 U.S. 146. 153 (2004).





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