The Fourth Circuit held in United States v. Davis, No. 20-4035, 2021 WL 1826255, ___ F.3d ___ (4th Cir. May 7, 2021) that officers unlawfully searched a suspect’s backpack, which he dropped before he lay on the ground on his stomach, where he remained as he was arrested and his arms were handcuffed behind his back. The case is significant for at least two reasons: (1) The Fourth Circuit extended Arizona v. Gant, 556 U.S. 332 (2009), to searches outside the automobile context; and (2) The court determined that a bag the suspect could have easily reached while unrestrained was not within his reach while he was prone and handcuffed.
Facts. Officer Derek Richardson with the Holly Springs Police Department stopped a car driven by Howard Davis for a window tinting violation. While Davis was on the side of the road, two other officers arrived in a separate patrol car, with the lights activated. While the three officers conferred behind his car, Davis put his hand outside of his window and made a pointing gesture indicating he was leaving. He drove off, leaving his driver’s license and insurance card with Richardson.
The officers chased Davis’s car through a residential neighborhood. Davis drove into someone’s backyard, got out of his vehicle carrying a backpack, ran on foot into a swamp, and got stuck in knee-high water. Richardson, who was pursuing Davis on foot at this point, drew his gun and ordered Davis to come out of the swamp. Davis returned to dry land, dropped his backpack, and lay down on his stomach.
Richardson patted Davis down and discovered a large amount of cash. He then handcuffed Davis’s hands behind his back and arrested him for traffic offenses, including speeding to elude.
Richardson then unzipped the backpack and found cash and cocaine inside. Officers also searched Davis’s car, finding a digital scale and cash. A witness reported seeing Davis throw a gun from the car while fleeing, and officers found a gun on the path Davis drove through the neighborhood.
Procedural history. Davis was indicted for federal drug and gun charges. He moved to suppress the evidence seized from his backpack and vehicle, arguing that both searches violated the Fourth Amendment. The trial court denied his motion. Davis was convicted at trial and was sentenced to thirty-five years of imprisonment. He appealed.
Analysis. The Fourth Circuit began by reviewing the United States Supreme Court case law identifying and defining the parameters of the exception to the warrant requirement that permits searches incident to a lawful arrest. The court noted that the authority to search a vehicle incident to a suspect’s arrest had been curtailed in Gant. There, the Supreme Court held that officers may search a vehicle incident to a recent occupant’s arrest in two circumstances: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; and (2) when it is reasonable to believe that evidence related to the crime of arrest might be found in the vehicle.
The backpack search. Davis urged the Fourth Circuit to apply the first Gant holding to the search of his backpack. The court obliged, reasoning that this holding was not limited to the vehicle context and that it applied to searches of containers more generally. The Fourth Circuit pointed to the Gant Court’s reliance on a non-vehicle case, Chimel v. California, 395 U.S. 752 (1969) (determining that it was reasonable for arresting officers to search an arrestee and the area within the arrestee’s reach, from which the suspect might access a weapon or destroy evidence), as a basis for the standard it articulated. The Davis Court noted that the Third, Ninth, and Tenth Circuits had likewise concluded that Gant was not limited to automobile searches. Ever-prescient Professor Welty predicted this outcome more than a decade ago.
Applying Gant, the court determined that the search of the backpack was unlawful. Davis was face-down on the ground with his hands handcuffed behind his back when Richardson unzipped the bag and searched it. There were three officers and no other suspects or distracting bystanders on the scene. Thus, the court reasoned, Davis was secured. Moreover, the court concluded that even though the bag was next to Davis, the fact that Davis was face-down and handcuffed meant that the bag was not within his reach.
The court distinguished United States v. Ferebee, 957 F.3d 406 (4th Cir. 2020), a case in which the Fourth Circuit reasoned that officers could properly search a backpack located inside the house where defendant Ferebee was handcuffed and arrested even after Ferebee was taken out of the house. There, the court concluded that Ferebee, though supervised by an officer, “still could walk around somewhat freely and could easily have made a break for the backpack inside the house.” Id. at 419. In addition, Ferebee had, while handcuffed and before being escorted from the house, surreptitiously discarded a marijuana joint without officers noticing. Davis, though handcuffed like Ferebee, was prone with his hands handcuffed behind his back, facts that the court said rendered him secure and the bag out of reach.
The Davis Court also distinguished the Third Circuit’s decision in United States v. Shakir, 616 F.3d 315 (3d Cir. 2010), a case it relied upon in Ferebee. In Shakir, the defendant was arrested and dropped a duffel bag at his feet. Officers handcuffed the defendant and then searched the duffel bag. The Third Circuit held that the search was permissible because, even though the defendant was handcuffed and guarded by two officers, there was a “sufficient possibility” that he could access a weapon in the bag. Id. at 321. The court noted that Shakir was subject to an arrest warrant for armed bank robbery and that he was arrested in public “near some 20 innocent bystanders, as well as at least one suspected confederate who was guarded only by unarmed hotel security officers.” Id. Davis’s circumstances were different in key ways. Again, Davis was positioned on his stomach with his hands cuffed behind his back. A gun was pointed at him. There were three officers on the scene, a lone defendant, and no one else. Davis, unlike Shakir, could not have accessed his bag by dropping to the floor.
The car search. The court next considered the lawfulness of the warrantless search of Davis’s car, which occurred before officers learned of the gun. Davis argued that the search was not permissible under the automobile exception, which requires probable cause that the car contains evidence of a crime, or under Gant, since he was secured and the car was out of reach and it was not reasonable to believe that evidence of his crime of arrest would be discovered in the vehicle. Again, the Fourth Circuit agreed with Davis.
Without the evidence from the backpack, probable cause to search the car rested on Davis’s flight, his arrest, and the cash discovered on his person. The court concluded that while these facts may have given the officers an articulable suspicion that evidence of a crime was in the vehicle, it did not provide probable cause. Thus, the search was not authorized under the automobile exception. As for the first prong of Gant, Davis was secured and the car was out of reach. As for the second Gant prong, Davis was arrested for speeding to elude, resisting an officer, and other traffic offenses. The court said it was not reasonable to believe that Davis’s car would contain evidence of those crimes.
The end result. The Fourth Circuit reversed Davis’s convictions and remanded for entry of an order granting the motion to suppress.
Potential impact in North Carolina. As Bob Farb explained here, rulings from the Fourth Circuit are binding on federal district courts within the circuit, including those in North Carolina. The ruling is not binding on North Carolina state courts, but may be persuasive to state courts considering these issues, particularly since our appellate courts have not weighed in on this issue post-Gant. (Jeff noted in his earlier blog post that the court of appeals in State v. Thomas, 81 N.C. App. 200 (1986), held that a search incident to arrest of a locked, extremely large, and cumbersome suitcase possessed by an arrestee who was safely in custody was improper.)
What is an officer to do? Suppose Officer Richardson were to confront the same set of facts with the benefit of reading Davis. How might he proceed without running afoul of the rule announced there and without leaving a backpack on a person’s residential property that he suspects, but does not have probable cause to believe, contains contraband? One option is to collect the backpack and transport it, along with the defendant, to the magistrate’s office. If the magistrate finds probable cause and the defendant is confined to a detention facility, then the backpack may be searched and inventoried pursuant to agency policy. See Robert L. Farb, Arrest, Search and Investigation in North Carolina (5th ed. 2016), 257 (noting the ruling in Illinois v. LaFayette, 462 U.S. 640 (1983), that officers or jailers may examine all of an arrestee’s personal possessions while conducting such an inventory or may opt to place personal items into storage without searching them; cautioning officers and jailers to follow the inventory policies of their agencies).