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United States v. Johnson

United States Court of Appeals, Ninth Circuit

January 9, 2019

United States Of America, Plaintiff-Appellee,
Lamar Johnson, Defendant-Appellant.

          Argued and Submitted September 11, 2018 San Francisco, California

          Appeal 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

          Robin 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.

          Philip 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.


         Criminal Law

         The 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.

         The 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.

         The 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 marijuana.

         The 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.

         The 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.

         Concurring, 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

         Lamar 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.


         On 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.

         Simmont 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.

         The 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.

         According 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.

         Sample 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.

         Sample's 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 ...

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