United States v. Wesley, John ( 2002 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2002 Decided June 21, 2002
No. 01-3107
United States of America,
Appellee
v.
John Q. Wesley,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00017-01)
Nicholas H. Cobbs, appointed by the court, argued the
cause and filed the briefs for appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher and Roderick L.
Thomas, Assistant U.S. Attorneys.
Before: Sentelle and Garland, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: John Q. Wesley was arrested for
violating the terms of his pretrial release and then convicted
for unlawfully possessing a gun and drugs at the time of his
arrest. He challenges his convictions on the ground that the
evidence the government used against him at trial was ob-
tained in violation of the Fourth Amendment. Finding no
constitutional violation, we affirm the judgment of the district
court.
I
Wesley had the misfortune of being arrested three times at
almost the same location, near the intersection of Stanton
Road and Trenton Place, S.E., in Washington, D.C. While
the only convictions at issue here are those that resulted from
the last of the three arrests, we describe the other two as a
necessary prologue.
In June 2000, police officers found Wesley near the
Stanton-Trenton intersection in possession of fourteen bags
of crack cocaine. As a condition of his release pending trial,
the District of Columbia Superior Court ordered him to stay
away from a three-block radius of the 1700 block of Trenton
Place (the block immediately adjoining Stanton Road). In
October 2000, still awaiting trial for his June arrest but
apparently undeterred by it, Wesley was again found near the
Stanton-Trenton intersection. On that date, Officer Andre
Martin--who was unaware of Wesley's June arrest--discover-
ed Wesley on Trenton Place about thirty feet from Stanton
Road, this time in possession of six bags of crack cocaine.
Again, Wesley was arrested. Again, the D.C. Superior Court
released him pending trial on the condition that he stay away
from the Stanton-Trenton intersection. The October stay-
away order expressly barred Wesley from the "Intersection
of Trenton Pl. & Stanton Rd. SE," but incorporated by
reference the terms of the June order.1
Finally, we come to the arrest that generated the convic-
tions from which Wesley now appeals. A few weeks after
arresting Wesley in October 2000, Officer Martin learned
(through the police computer) that the court had released
Wesley subject to an order to stay away from the "Intersec-
tion of Trenton Pl. & Stanton Rd. SE." Martin did not know
of the June order's more specific injunction to stay away from
a three-block radius of Trenton Place, or that the October
order had incorporated the June injunction by reference.
From his frequent patrols in the area, however, Officer
Martin did know that Wesley was once again frequenting the
intersection. Accordingly, on November 14, 2000, Martin told
his colleague, Officer Rodney Daniels, that he thought Wesley
was likely to be in the area, and the two officers drove there
to investigate.
Martin's suspicions were well founded: Wesley was sitting
in his car on Stanton Road, parked approximately "three to
four cars" from the point at which Stanton Road and Trenton
Place cross. With him was his cousin, Antonio Hagens.
When the two police officers pulled up beside his car, Wes-
ley's "eyes got real big," a reaction that both Martin and the
district court interpreted as expressing "shock." Wesley
tried to escape by backing out of his parking place, but the
officers stopped him. Officer Martin opened the car door and
removed Wesley. Martin then placed him under arrest for
violating the October stay-away order, handcuffed him, and
put him in Martin's patrol car. Officer Daniels removed
Hagens and handcuffed him as well.
After securing Wesley, Martin looked under the driver's
seat where Wesley had been sitting and discovered a loaded,
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1 The October order, stating the conditions of Wesley's release
and signed by the defendant, provided: "1329 Notice in F3717-00 /
Stay Away: Intersection of Trenton Pl. & Stanton Rd. SE." The
phrase "1329 Notice" is a reference to D.C. Code s 23-1329, which
prohibits violations of the terms of pretrial release. "F3717-00" is
the case number assigned to Wesley's June appearance in Superior
Court.
nine-millimeter pistol. In the car's ashtray, he found two
ziplock bags of crack cocaine. Daniels and another officer
who had arrived on the scene then searched the car's trunk
and found another quantity of crack and a number of empty
ziplocks.
A grand jury indicted Wesley for possession of cocaine base
with intent to distribute, 21 U.S.C. s 841(b)(1)(B)(iii); using
or carrying a firearm during a drug-trafficking offense, 18
U.S.C. s 924(c)(1)(A); and possession of a firearm by a
convicted felon, id. s 922(g)(1). In a motion to exclude the
government's use of the gun and drugs as evidence, Wesley
charged that his arrest was unlawful, and that even if it were
not, the subsequent search exceeded the permissible scope of
a search incident to arrest. The district court denied the
motion, the jury convicted, and the court sentenced Wesley to
fifteen years in prison.
II
Although the police searched Wesley's car without a war-
rant, such a search is permissible if it falls within the familiar
"search incident to arrest" exception to the Fourth Amend-
ment's warrant requirement. See New York v. Belton, 453
U.S. 454, 460 (1981). To qualify for the exception, (i) the
arrest must be lawful, and (ii) the subsequent search must not
exceed the scope permitted by the exception. See United
States v. Bookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002); In re
Sealed Case 96-3167, 153 F.3d 759, 767 (D.C. Cir. 1998). As
he did below, Wesley challenges the search of his car as
failing to meet either criterion. In considering this kind of
challenge, we review de novo the district court's conclusions
of law, United States v. Weaver, 234 F.3d 42, 46 (D.C. Cir.
2000), as well as its determinations of probable cause, Ornelas
v. United States, 517 U.S. 690, 699 (1996). However, we
review "findings of historical fact only for clear error and ...
give due weight to inferences drawn from those facts." Id.A
Wesley's first contention is that his arrest for violating the
October stay-away order was unlawful. To have been lawful,
the arrest must have been based upon probable cause to
believe that a crime was being committed. See Bookhardt,
277 F.3d at 565; see also Atwater v. City of Lago Vista, 532
U.S. 318, 323, 354 (2001) (holding that an arrest is lawful if an
officer has probable cause to believe that the defendant
committed a misdemeanor in his presence). Although the
intentional violation of a pretrial release order is a criminal
offense under District of Columbia law, D.C. Code
s 23-1329(c), Wesley contends that Officer Martin lacked
probable cause to believe that he was violating the October
order. He argues that, since the government concedes Mar-
tin knew only that the court had ordered Wesley to stay away
from the "intersection" of Trenton Place and Stanton Road,
and since Martin did not find Wesley at that intersection but
instead found him three or four cars away, the officer did not
possess the requisite probable cause.
Probable cause to arrest "requires the existence of 'facts
and circumstances within the officer's knowledge that are
sufficient to warrant a prudent person in believing that the
suspect has committed, is committing, or is about to commit
an offense.' " United States v. Dawkins, 17 F.3d 399, 403
(D.C. Cir. 1994) (quoting Michigan v. DeFillippo, 443 U.S. 31,
37 (1979) (alterations omitted)). Both parties argue that the
question before this court is whether a reasonable person,
knowing what Martin knew at the time of Wesley's arrest,
would have believed that the location at which the officer
found Wesley fell within the October order's command that
Wesley stay away from the "Intersection of Trenton Pl. &
Stanton Rd. SE." We note, however, that there is no ques-
tion that this location did in fact fall within the compass of
the June order, and that Wesley knew it did. The October
order, which Wesley signed, incorporated by reference the
June order's command that he stay not merely three car
lengths away, but a full three blocks away.2
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2 We therefore reject Wesley's suggestion (not quite framed as an
argument) that the October order was too ambiguous to put him on
notice of the place from which he was barred. We also agree with
the district court that Wesley's look of shock upon seeing the
At oral argument, counsel for Wesley contended that the
only place that qualifies as the "intersection" of Trenton Place
and Stanton Road is the spot where the two streets cross.
We cannot agree that a reasonable person could not read the
word more broadly. See, e.g., Merriam Webster's Collegiate
Dictionary 612 (10th ed. 1996) (defining "intersection" as "a
place or area where two or more things (as streets) intersect"
(emphasis added)). Indeed, when pressed at oral argument,
counsel for Wesley conceded that "intersection" could encom-
pass a place "very close to" the crossing point, and we regard
it as splitting hairs to suggest that one car length falls within
that description but that three do not. Nor does the district
court's suggestion, that a block in every direction from the
crossing would qualify, strike us as unreasonable.
Perhaps more important, what Officer Martin knew at the
time of the November arrest included the location of the
arrest that had led to the October stay-away order. On
October 23, Martin himself had arrested Wesley--not at the
spot where Trenton Place and Stanton Road cross, but rather
some thirty feet away on Trenton. The district court found
that location to be "approximately the same distance" from
the intersection as the location at which Martin again arrest-
ed Wesley in November. And it was eminently reasonable
for the officer to believe that the October order was intended
to keep Wesley at least as far from the crossing as he had
been at the time of his October arrest.3
Wesley mounts two further attacks on the legality of the
arrest that require no more than a brief mention. First, he
__________
officers, as well as his effort to escape, was further evidence that he
knew he was in violation of the stay-away order.
3 Wesley also argues that it was unreasonable for Martin to
regard the stay-away order as encompassing more than the cross-
ing of the two roads because Martin knew that Wesley lived close
by. An expansive reading of the order, Wesley complains, would
have kept him from obtaining access to his home. This argument is
answered, however, by the district court's finding that Wesley did
not have to pass by the place at which he was arrested to gain
access to his residence.
contends that Martin made the arrest in bad faith, because
Martin admitted that he made a "special trip" to the area
with the expectation that he would find the defendant and
would then be able to arrest him. There is, however, nothing
improper about a police officer going to a location for the
express purpose of investigating whether a crime is being
committed. There certainly is no rule of law that requires an
officer to wait patiently until a lawbreaker happens to cross
his field of vision.4
Second, Wesley argues that it would have been more
"prudent" if, before arresting him, Martin had conducted an
investigatory stop to determine why he was parked on Stan-
ton Road. Wesley is correct that such a stop would have
been permissible under the rule of Terry v. Ohio, 392 U.S. 1(1968). But it is not Wesley's place--or ours--to dictate
which among an array of lawful tactics a police officer must
use when confronting a suspect on the street. Because
Martin had probable cause not just to stop Wesley but to
subject him to a full custodial arrest, that arrest was lawful.
B
Wesley's second contention is that, even if his arrest was
lawful, Martin's search of the passenger compartment of
Wesley's car exceeded the permissible scope of a search
incident to arrest.5 It did so, Wesley argues, because by the
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4 Martin's motivations are, in any event, irrelevant to the validity
of the arrest. As the Supreme Court held in Whren v. United
States, "the existence of probable cause must be determined objec-
tively from the facts and circumstances known to the officers at the
time of the arrest without regard to the 'actual motivations' or
'[s]ubjective intentions' of the officers involved." Bookhardt, 277
F.3d at 565 (quoting Whren v. United States, 517 U.S. 806, 813
(1996) (alteration in original)).
5 Wesley does not dispute that, if the search of the car's passen-
ger compartment was valid, then the discovery of the gun and drugs
in that area justified the subsequent search of the trunk. See
United States v. Turner, 119 F.3d 18, 19-21 (D.C. Cir. 1997).
time of the search, the police had already removed him from
the car and placed him in handcuffs. We disagree.
In Chimel v. California, the Supreme Court held that,
incident to a lawful arrest, the police may properly search the
area within the arrestee's "immediate control" without a
warrant. 395 U.S. 752, 763 (1969). Although such searches
are justified by the need "to disarm and to discover evi-
dence," the Court subsequently held them permissible re-
gardless of whether, in the circumstances of a particular case,
"there was present one of the reasons supporting" the excep-
tion. United States v. Robinson, 414 U.S. 218, 235 (1973);
see United States v. Chadwick, 433 U.S. 1, 14-15 (1977),
abrogated on other grounds, California v. Acevedo, 500 U.S.
565 (1991); United States v. Abdul-Saboor, 85 F.3d 664, 667
(D.C. Cir. 1996).
The Supreme Court addressed the proper application of
Chimel to automobile searches in New York v. Belton. Not-
ing the difficulty that lower courts had had in applying
Chimel in the context of the arrest of an occupant of a
vehicle, the Court determined to adopt "a straightforward
rule, easily applied, and predictably enforced." Belton, 453
U.S. at 459. The rule the Court announced was that "when a
policeman has made a lawful custodial arrest of the occupant
of an automobile, he may, as a contemporaneous incident of
that arrest, search the passenger compartment of that auto-
mobile." Id. at 460.
In United States v. Brown, we noted that the search in
Belton had taken place after the officer had already removed
the defendant from the car, and therefore interpreted Belton
as establishing the principle that the area under a defendant's
"immediate control" for Chimel purposes must be determined
as of the time of the arrest rather than of the search.
Brown, 671 F.2d 585, 587 (D.C. Cir. 1982). Rejecting the
argument that the principle of Belton applies only to automo-
biles, we upheld the search of a pouch taken from the
defendant at the time of the arrest, even though the search
took place after the pouch was moved out of the reach of her
control. As long as a search is "contemporaneous with" and
an "integral part of" a lawful arrest, we said, the police may
search a container that was "in hand or within reach when the
arrest occurs," even if the officer has since seized it and
gained exclusive control over it. Id. We have subsequently
affirmed this rule--that the "determination of immediate
control must be made when the arrest occurs"--on several
occasions, and noted that it is in accord with the views of our
sister circuits. Abdul-Saboor, 85 F.3d at 668; id. at 670(collecting cases); see Sealed Case, 153 F.3d at 768; United
States v. Tavolacci, 895 F.2d 1423, 1429 (D.C. Cir. 1990).6
Because Wesley was seated in his automobile at the time
Officer Martin arrested him, the holdings in Belton and
Brown dictate that Martin's search of the car's passenger
compartment was lawful. Wesley, however, contends that
another of our opinions, United States v. Lyons, 706 F.2d 321(D.C. Cir. 1983), renders the search improper. In Lyons, we
held that the search of a closet in the hotel room where the
defendant had been arrested, a search that took place after
the defendant had been handcuffed and seated in a chair near
the doorway to the room, was not a valid search incident to
arrest because it was "inconceivable that [the defendant]
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6 See also Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001)
("[T]he right to search an item incident to arrest exists even if that
item is no longer accessible to the defendant at the time of the
search. So long as the defendant had the item within his immediate
control near the time of his arrest, the item remains subject to a
search incident to arrest."); Curd v. City Court of Judsonia, 141
F.3d 839, 842 n.9 (8th Cir. 1998) ("It matters not whether [the
defendant] was capable of reaching the purse at the time of the
search"); United States v. Nelson, 102 F.3d 1344, 1346-47 (4th Cir.
1996) (arrestee handcuffed prior to search of his bag, which was
accessible at the time of arrest); United States v. Hudson, 100 F.3d
1409, 1419 (9th Cir. 1996) (arrestee handcuffed before search of his
bedroom); United States v. Mitchell, 64 F.3d 1105, 1110 (7th Cir.
1995) (arrestee handcuffed before search of his briefcase); 3 Wayne
R. LaFave, Search and Seizure s 6.3(c), at 312 & n.81 (3d ed. 1996
& Supp. 2000) (noting the "Belton-izing" of search-incident-to-arrest
law in non-automobile contexts and the application of a time-of-
arrest standard in such cases).
could have gained access" to the closet. Id. at 330-31.
Wesley urges that we apply Lyons here and invalidate the
search on the ground that, by the time the officers searched
the passenger compartment of the car, they had already
removed and handcuffed Wesley and Hagens, making it "in-
conceivable" that either of the two could have gained access
to weapons or evidence contained therein.
We have previously noted that there is "some tension
between Lyons, which seems to focus on whether the space
searched was accessible at the time of the search, and our
earlier decision in Brown and later decision in Abdul-Saboor,
both of which focused on the time of the arrest." Sealed
Case, 153 F.3d at 768. But whatever the continuing validity
of Lyons in the context of non-automobile searches, Belton's
bright-line rule, that incident to arrest the police may search
the passenger compartment of an arrestee's automobile, vali-
dates the search in this case. Belton proclaimed its rule
without caveat, notwithstanding that in that very case the
occupants had in fact been removed from the automobile.
The dissenters in Belton understood the case to establish a
flat rule, applicable regardless of the status of the defendants
at the time of the search. See 453 U.S. at 468 (Brennan, J.,
dissenting) ("Under the approach taken today, the result
would presumably be the same even if Officer Nicot had
handcuffed Belton and his companions in the patrol car
before placing them under arrest...."). And this court has
read it that way as well. See Sealed Case, 153 F.3d at 767-68("In New York v. Belton, the Supreme Court held that when
the police lawfully arrest the occupant of an automobile, they
may 'as a contemporaneous incident of that arrest, search the
passenger compartment,' even if the occupant has been re-
moved and is no longer in the car at the time of the search."
(quoting Belton, 453 U.S. at 460) (emphasis added)); see also
Abdul-Saboor, 85 F.3d at 668-69.7
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7 In Abdul-Saboor, we also noted the Belton Court's statement of
the analogous point that " 'no search or seizure incident to lawful
custodial arrest would ever be valid [if] by seizing an article ... an
officer may be said to have reduced that article to his exclusive
Indeed, to take Wesley's view would largely render Belton
a dead letter. The search of a passenger compartment
incident to arrest would then be permissible only if the officer
left the defendant in the car, in which event the officer would
have to crawl over him to effectuate the search, or if the
officer removed the defendant but did not (or could not)
effectively secure him. As we have previously warned, such a
rule "might create a perverse incentive for an arresting
officer to prolong the period during which the arrestee is kept
in an area where he could pose a danger to the officer."
Abdul-Saboor, 85 F.3d at 669; see Sealed Case, 153 F.3d at
768. And it would certainly vitiate the Supreme Court's
intention to create "a straightforward rule, easily applied, and
predictably enforced," Belton, 453 U.S. at 459, by requiring
courts to determine retrospectively whether a given arrestee
had been so insufficiently secured as to warrant the officer's
search of the passenger compartment.
Accordingly, we read Belton as creating a bright-line rule
that, incident to and contemporaneous with a valid custodial
arrest of the occupant of a vehicle, the police may search the
passenger compartment of the vehicle without regard to
whether the occupant was removed and secured at the time of
the search. This reading is in accord with that of every other
circuit that has considered the question.8 Applying that rule
to Wesley's case, we conclude that the search of his automo-
bile and the consequent discovery of the gun and drugs were
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control.' " Abdul-Saboor, 85 F.3d at 669 (quoting Belton, 453 U.S.
at 461-62 n.5 (alterations in original) (internal quotation marks
omitted)).
8 See, e.g., United States v. Humphrey, 208 F.3d 1190, 1202 (10th
Cir. 2000); United States v. Sholola, 124 F.3d 803, 817-18 (7th Cir.
1997); United States v. Doward, 41 F.3d 789, 791, 792 n.1 (1st Cir.
1994); United States v. Moorehead, 57 F.3d 875, 877-78 (9th Cir.
1995); United States v. Mans, 999 F.2d 966 (6th Cir. 1993); 3
Wayne R. LaFave, Search and Seizure s 7.1(c), at 448 & n.79 (3d
ed. 1996 & Supp. 2000) (concluding that "under Belton a search of
the vehicle is allowed even after the defendant [is] removed from it,
handcuffed, and placed in the squad car," and collecting cases).
lawful, and that the subsequent use of the evidence at trial
was therefore permissible.
III
Finding no constitutional infirmity in either Wesley's arrest
or the search of his automobile, we affirm the judgment of the
district court.
So ordered.