and Submitted September 11, 2018 San Francisco, California
from the United States District Court for the Northern
District of California D.C. No. 3:16-cr-00251-WHA-1 William
Alsup, District Judge, Presiding
Packel (argued), Research and Writing Attorney; Gabriela
Bischof, Assistant Federal Public Defender; Steven G. Kalar,
Federal Public Defender; Office of the Federal Public
Offender, San Francisco, California; for Defendant-Appellant.
Kopczynski (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; Alex G. Tse,
Acting United States Attorney; United States Attorney's
Office, San Francisco, California; for Plaintiff-Appellee.
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul
J. Watford, Circuit Judges.
panel affirmed a conviction and sentence for multiple crimes
in a case in which the district court denied the
defendant's motion to suppress evidence recovered from
the warrantless searches of his person and car and the
warrant search of his house.
panel held that the search of the defendant's person was
constitutional. The panel addressed whether two
well-established principles-(1) that a search incident to a
lawful arrest does not necessarily need to follow the arrest
to comport with the Fourth Amendment and (2) that an
officer's subjective reasons for making the arrest need
not be the criminal offense as to which the known facts
provide probable cause-may coincide without violating the
Fourth Amendment. The panel explained that the justifications
for the search incident to lawful arrest exception do not
lose any of their force in the context of a search performed
by an officer who has probable cause to arrest and shortly
thereafter does arrest; and that so long as the search was
incident to and preceding a lawful arrest-which is to say
that probable cause to arrest existed and the search and
arrest are roughly contemporaneous-the arresting
officer's subjective crime of arrest need not have been
the crime for which probable cause existed. The panel held
that Knowles v. Iowa, 525 U.S. 113 (1998), 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. As
for the defendant's argument that this standard invites
pretextual and discriminatory searches, the panel did not
think that this case is materially different from cases where
the search precedes the arrest and the arresting
officer's subjective crime of arrest is the same as the
crime for which probable cause existed. The panel rejected
the defendant'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 panel wrote that the smell of fresh and burnt
marijuana in the defendant's car, along with plastic
baggies in the glove compartment, and the defendant's
unusual search of the glove compartment, indicated a fair
probability that the defendant had committed, or was about to
commit, the offense of marijuana transportation.
panel held that the search of the defendant's vehicle was
justified under the automobile exception to the warrant
requirement because when the officer approached the car, he
immediately smelled a combination of burnt and fresh
panel rejected the defendant's challenges to the validity
of the magistrate's warrant to search his house. The
panel held that an officer's affidavit provided the
substantial basis for the magistrate to determine that
probable cause existed, that the confidential informant's
reliability is largely beside the point, and that any
omission from the affidavit was immaterial.
panel rejected the defendant's argument that the district
court erred in increasing his offense level under U.S.S.G.
§ 3B1.5 for using body armor during the commission of
the offense because "use" does not mean simply
wearing body armor. The panel wrote that there is no
reasonable way to construe the guidelines commentary that
would exclude wearing body armor from the definition of
"use." The panel concluded that the district court
did not abuse its discretion by determining that the
enhancement should apply to the defendant.
Judge Watford joined the court's opinion because it
faithfully applies the rule adopted in United States v.
Smith, 389 F.3d 944 (9th Cir. 2004) (per curiam), which
held that a warrantless search that precedes an arrest may
nonetheless fall within the search-incident-to-arrest
exception if "the search is conducted roughly
contemporaneously with the arrest" and probable cause to
arrest existed at the time of the search. Observing that many
courts have adopted the rule, but some have rejected it in
favor of a more circumscribed approach, Judge Watford wrote
that Smith falls on the wrong side of this divide
and should be overruled.
WALLACE, Circuit Judge
Johnson was stopped while driving and subjected to a
warrantless search of his person and car. One year later,
police conducted a warrant search of his home. The fruits of
these searches led to Johnson's indictment and conviction
for multiple crimes. Johnson appeals, challenging his
conviction and sentence. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, and we affirm.
August 7, 2015, Lamar Johnson was stopped while driving by
Sergeant Clint Simmont of the East Palo Alto Police
Department. As Simmont spoke with Johnson, he smelled a
combination of burnt and fresh marijuana, which he recognized
through his work patrolling East Palo Alto and on the San
Mateo County Narcotics Task Force. Simmont asked Johnson for
his registration and proof of insurance, to which Johnson
responded that he was borrowing the car and did not have
registration or insurance information. Simmont asked if
Johnson was sure, and Johnson opened the glove box as if to
check. Simmont observed empty plastic bags and pill bottles
in the glove box and noticed that Johnson "moved his
hand around on the few items that were in there, but he
didn't actually manipulate any items." This manner
was "inconsistent with the way someone would genuinely
search for paperwork." Simmont then learned from a
police dispatch agent that Johnson had been arrested for
parole violations, which indicated to Simmont that Johnson
had been convicted of a felony.
asked Johnson to step out of the vehicle and searched his
person. Simmont discovered that Johnson was wearing a
bulletproof vest and arrested him for being a felon in
possession of body armor. After backup police units arrived,
Simmont and the other officers searched Johnson's car and
discovered a loaded handgun, a pill bottle containing
acetaminophen/hydrocodone pills, plastic bags, scales, and
concentrated cannabis. Johnson was transported to a police
station, where a second search of his person revealed
additional controlled substances.
following year, a separate investigation in San Mateo County
linked Johnson to controlled substance distribution. On March
16, 2016, a judge in San Mateo Superior Court issued a
warrant to search Johnson, a vehicle allegedly belonging to
him, and a residence in east Palo Alto allegedly belonging to
him. Detective Christopher Sample subscribed and swore to an
affidavit in support of the warrant.
to his affidavit, Sample met with a confidential informant
(CI) who purportedly could call a man named "Lamar"
at a specific phone number and arrange a sale of cocaine
base. The CI called the number and a male voice answered the
phone and gave a location to meet. Police observed the CI
meet Johnson at that location and exchange items. Sample then
tested the substance the CI received from Johnson and
identified it as cocaine. Sample followed Johnson from the
exchange and stopped him in front of a house for a minor
traffic violation. Johnson's driver license stated he
lived at the house where they had stopped, and Johnson told
Sample that it was his house. Sample then observed Johnson
entering the house before he drove away.
then arranged a second buy through the same CI. Again, the CI
called the phone number, the man provided a location to meet,
and the CI exchanged items with Johnson after they met at
that location. Sample tested the substance the CI received
from Johnson and it again tested positive as cocaine. Again,
police followed Johnson and observed him return to the same
home. The first buy occurred within the 20 days preceding the
affidavit, and the second buy within 10 days.
affidavit also provided information about his training and
experience. Sample averred that drug traffickers who sold
cocaine base often purchased it in bulk quantities and stored
it in their cars and homes. Based on the factual information
recited above and Sample's description of his training
and experience, the superior court issued a search warrant.
The search of ...