UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 12, 2010
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
NEAL MADDOX, DEFENDANT-APPELLEE.
Appeal from the United States District Court for the Eastern District of Washington. Robert H. Whaley, Senior District Judge, Presiding. D.C. No. 2:08-cr-00159-RHW-1.
The opinion of the court was delivered by: Hawkins, Circuit Judge
Argued and Submitted April 6, 2010 -- Seattle, Washington.
Before: Michael Daly Hawkins, Carlos F. Lucero,*fn1 and N. Randy Smith, Circuit Judges.
Opinion by Judge Hawkins; Dissent by Judge N.R. Smith
The government appeals the suppression of evidence found inside closed containers-themselves inside a motor vehicle stopped for a traffic violation-after the driver was handcuffed and securely placed in the rear of the arresting officer's patrol car. We affirm.
Officer Scott Bonney had pulled over to the side of the road to finish writing a police report, when he saw Neal Maddox's ("Maddox") Chevy truck enter the intersection. Maddox stopped abruptly in the intersection, then immediately proceeded in reverse. As he was moving in reverse towards the stop sign, Maddox nearly collided with a small blue car going westbound in the intersection. He made a three-point turn, blocking traffic, turned around, and accelerated. Maddox slowed once the officer activated his overhead lights, and stopped at the side of the road.
When Officer Bonney exited his patrol car, Maddox exited his vehicle and began yelling at the officer. Officer Bonney instructed Maddox to sit in the driver's seat and remain still, approached the vehicle, and told Maddox he had stopped him for driving recklessly. Maddox identified himself, but was unable to produce a driver's license. When asked whether the vehicle belonged to him, Maddox admitted ownership, noting his friend gave him the truck a few weeks before. He added he had yet to register the truck, and had no bill of sale. Officer Bonney noticed the vehicle's tags were expired, and the temporary sticker in the rear window was not only a photocopy, but also valid for longer than was normal for a temporary sticker (31 rather than 30 days). A computer check revealed that Maddox's license had been suspended. When Maddox ignored the officer's request to step outside the vehicle, the officer took away Maddox's key chain and cell phone, tossing them on the front seat of Maddox's vehicle. Officer Bonney placed Maddox under arrest, handcuffed him, and escorted him to the patrol car. He then searched Maddox's person and found $358 in cash inside Maddox's pants pockets, putting Maddox in the back of the patrol car after the search. It is undisputed that, at this point, Maddox posed no threat to officer safety and there was no danger of evidence destruction.
Officer Bonney then returned to Maddox's vehicle, reached inside, and retrieved the key chain and cell phone. Hanging on the key chain was a metal vial with a screw top. Removing the top and the vial's contents, the officer discovered a substance he believed to be methamphetamine. Entering the interior of vehicle, the officer found a closed computer case which he opened, and discovered a handgun and still more of the substance he had found in the key chain vial.
Following a hearing, the district court determined that neither probable cause, exigent circumstance, nor the incidents of Maddox's arrest or impoundment of his vehicle justified a warrantless search of the interior of Maddox's vehicle, and ordered suppression of the items found there. This interlocu-tory appeal followed.*fn2
STANDARD OF REVIEW
A district court's grant or denial of a motion to suppress is reviewed de novo. United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007); United States v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004); United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992).
The Key Chain
The Government argues the search of Maddox's key chain was proper as incident to lawful arrest.
 A search incident to lawful arrest is one of the "few specifically established and well-delineated exceptions" to the warrant requirement of the Fourth Amendment, see Katz v. United States, 389 U.S. 347, 357 (1967), and is conducted for the twin purposes of finding weapons the arrestee might use, or evidence the arrestee might conceal or destroy. Chimel v. California, 395 U.S. 752, 762-63 (1969). The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item"within the arrestee's immediate control when he was arrested"; (2) did "events occurring after the arrest but before the search ma[k]e the search unreasonable"? United States v. Turner, 926 F.2d 883, 887 (9th Cir. 1990).*fn3
 Contrary to the dissent's opening description, this was not a search of Maddox's person incident to arrest. Maddox's person was handcuffed in the back of the squad car, incapable of either destroying evidence or presenting any threat to the arresting officer. While the key chain was within Maddox's immediate control while he was arrested, subsequent events- namely Officer Bonney's handcuffing of Maddox and placing Maddox in the back of the patrol car-rendered the search unreasonable. In Turner, we found valid the search of baggies found after the defendant was handcuffed and taken into the next room because of a legitimate concern for the officers' safety: "they had already discovered a concealed weapon beneath the bedding." Id. at 888; accord United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996) (search of bedroom valid search incident to arrest even after defendant had been arrested and removed from the room, where "[w]hen Hudson was called out of his bedroom and arrested, one of the arresting officers noticed a rifle case near his feet"). No such weapon or threat was found here, and Maddox's demeanor, as the dissent argues, see Dissenting Op., at 11445 n.1, did not provide such legitimate concern for Officer Bonney's safety, as after initially yelling, Maddox subsequently cooperated with the officer and the arrest. Mere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay. See United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 571 (1991) ("warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.") (internal quotations and citations omitted). With Maddox handcuffed in the backseat of the patrol car, no possibility of Maddox concealing or destroying the key chain and the items contained therein, and no sighting of weapons or other such threats, Officer Bonney's search of Maddox's key chain was not a valid search incident to arrest.*fn4
The Laptop Bag
The Government contends the officer's seizure of the laptop bag was the result of a valid inventory search.*fn5
 Vehicular inventory searches must be conducted "in accordance with the standard procedures of the Washington State Patrol" in order for procured evidence to be admitted in federal court. United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989). Once a vehicle is impounded, police may conduct an inventory search. Id. Police may impound a vehicle in Washington state:
if the officer has probable cause to believe that it was stolen or used in the commission of a felony; . . . as part of the police 'community caretaking function' . . . [provided] neither the defendant nor his spouse or friends are available to move the vehicle; and . . . if the driver has committed one of the traffic offenses for which the legislature has specifically authorized impoundment.*fn6
State v. Williams, 689 P.2d 1065, 1071-72 (Wash. 1984). With the verification of the vehicle identification number and plates, and Maddox's own assertion of ownership, any suspicion the vehicle was stolen was but a "mere suspicion." See State v. Houser, 622 P.2d 1218, 1222-23 (Wash. 1980)*fn7 .
Moreover, the vehicle here was impounded for reasons other than to carry out the community caretaking functions of the police: it was not abandoned, impeding traffic, or threatening public safety or convenience. See id. at 1224. Finally, because Maddox offered to have his friend move the vehicle, the officer did not sufficiently consider alternatives before impounding Maddox's truck. The officer's impoundment of Maddox's vehicle violated Washington Law, and, therefore, did not qualify as a valid inventory search in accordance with the Fourth Amendment.
N.R. SMITH, Circuit Judge, dissenting
The undisputed facts of this case establish that Officer Bonney's search of Maddox's key-chain container was a search of an arrestee's person incident to a lawful custodial arrest-a search that needs no warrant to be valid under established Fourth Amendment law. See United States v. Robinson, 414 U.S. 218, 236 (1973). I therefore dissent.
In review of the pertinent facts in this case, Maddox does not dispute that Officer Bonney had probable cause to arrest him. He does not dispute that Officer Bonney first took possession of Maddox's keys when Officer Bonney removed those keys from Maddox's hand as Officer Bonney was attempting to handcuff Maddox. He does not dispute Officer Bonney's description of Maddox's behavior upon being stopped; behavior that is best described as confrontational and aggressive.*fn8 Finally, Maddox does not dispute that, if we find the search of the key-chain container valid, the discovery of methamphetamine in that key-chain container justifies a warrantless search of Maddox's truck under the "automobile exception." See Carroll v. United States, 267 U.S. 132, 160-62 (1925). Having found undisputed facts establishing the propriety of Officer Bonney's search of the key-chain container, this panel need look no further for justification. See Gustafson v. Florida, 414 U.S. 260, 263-64 (1973) (holding that the lawful arrest renders the search of the arrestee's person "reasonable" under the Fourth Amendment).
Officer Bonney first noticed Maddox while Officer Bonney was parked on the west side of Barker Road in Spokane, Washington (Barker Road runs north-south), typing up some notes on a noise complaint call in the area. Officer Bonney's vehicle was facing south and located just north of an intersection where Buckeye Avenue (Buckeye Avenue runs east-west) ends at Barker Road (forming a T-intersection). From that vantage point, Officer Bonney observed Maddox driving westward down Buckeye Avenue. As Officer Bonney watched, Maddox drove past a stop sign and then abruptly stopped (Bonney suspected that the truck's driver was about to run the stop sign before seeing the police car), coming to a complete stop in the intersection, partially blocking north- bound traffic on Barker Road. At this point, Officer Bonney pulled out to catch up with the truck. The truck then immediately reversed, almost backing into a small car traveling west behind the truck. The truck made a quick 3-point turn- blocking traffic on Buckeye Avenue in both directions-and quickly accelerated eastward. When Officer Bonney caught up, the truck slowed down to a crawl, and, at that point, Officer Bonney pulled the truck over.
When Officer Bonney exited his patrol car, Maddox also got out and began yelling at him-including yelling "Why the fuck you stopping me?" as well as other profanities. Officer Bonney informed Maddox that he had stopped Maddox for reckless driving and asked to see Maddox's driver's license. Maddox told him that he did not have a driver's license. Officer Bonney then asked Maddox to whom the truck belonged, to which Maddox replied that a friend "gave" him the truck a few weeks earlier.*fn9 Maddox admitted that he had not registered the truck and that he had no bill of sale. Officer Bonney noticed that tabs on the truck were expired and that a temporary sticker in the rear window of the truck appeared to be invalid (Officer Bonney observed that the sticker was a photocopy-rather than the original-and that the dates on the sticker would have made the 30-day temporary sticker valid for 31-days even if it had been issued the day of the stop).
When Officer Bonney ran a computer check on Maddox, he discovered that Maddox's license had been suspended. He then walked back to the truck to place Maddox under arrest for reckless driving and driving while his license was suspended. Just before handcuffing Maddox, Officer Bonney removed a cell phone and key-chain from Maddox's hands and set them on the driver's seat. After walking Maddox back to the patrol car, Officer Bonney continued his search of Maddox's person, finding $358 in Maddox's pants pockets. Officer Bonney then secured Maddox in the back of the patrol car. After securing Maddox, Officer Bonney went to retrieve the items he had seized incident to arrest, which included the key-chain. On the key-chain was a blue cylindrical container with a screw top. Upon removing that top, Officer Bonney found a white crystallized substance he recognized as methamphetamine.
An officer's authority to search an arrestee's person incident to arrest arises from the existence of a lawful custodial arrest. Robinson, 414 U.S. at 236. No one disputes the lawful custodial arrest here. We must only decide whether Officer Bonney's search of the key chain container was too remote in time or place, to be justified as a search of an arrestee's person incident to arrest. The majority holds this search invalid, finding that while the key chain container was within Maddox's immediate control at the time of the arrest, events subsequent to the arrest but prior to the search rendered the search "unreasonable." Maj. Op. 11441. The majority bases its finding of unreasonableness on the fact that, at the time Officer Bonney returned to further investigate the items seized in his search incident to arrest, "Maddox's person was handcuffed in the back of the squad car, incapable of either destroying evidence or presenting any threat to the arresting officer." Maj. Op. 11441. However, the majority cannot cite any authority for requiring such an instantaneous assessment of those items seized upon a search incident to arrest nor can it cite authority for such a case-specific review. Instead, contrary to the majority's view, the Supreme Court has expressly instructed that we not engage in a "case-by-case adjudication" "of the reasons supporting the authority for a search of the person incident to a lawful arrest," but that the "how and where" of the search should generally be left within the judgment of the police officer. Robinson, 414 U.S. at 235.*fn10 Here, there exist no unusual circumstances requiring this panel to step outside the general rule set forth in Robinson and question Officer Bonney's judgment. Finally, the very case upon which the majority primarily relies, United States v. Turner, 926 F.2d 883 (9th Cir. 1990), contradicts the majority view. There, we held that a search, conducted when the arrestee's person was handcuffed and secured in a different room than that being searched, was still a valid search of an arrestee's person incident to arrest.
1. Search of an Arrestee's Person and the Chimel Justifications
"A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search." Robinson, 414 U.S. at 235. Thus, the Supreme Court instructed that an appellate panel's review should not focus upon the "how and where" of the search. Nevertheless, both the Supreme Court and this Circuit have decided cases where they found the search too remote in time or place to be described as a search incident to arrest. See, e.g., United States v. Chadwick, 433 U.S. 1, 4-5, 15 (1977) (finding the search of a double-locked luggage chest that was not searched until an hour and a half after the arrests, having been transported to a federal building, was not a proper search incident to arrest), abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991); Monclavo-Cruz, 662 F.2d at 1287 (finding warrantless search invalid where officers seized a purse incident to arrest, transported the purse to Immigration Office, and searched the purse about an hour after the arrest). Because Chadwick and Monclavo-Cruz present fact patterns where a search incident to arrest was found improper, I contrast the facts here with those cases. While the facts surrounding the searches in Chadwick and Monclavo-Cruz were much more extreme in time and location than the search here, the courts looked to (1) the time of the search relative to the arrest, and (2) the location of the search.
In sum, a reviewing panel must respect the inherent reasonableness of the officer's search and the ad hoc nature in which that search is conducted, by declining to engage in a fact-based review of the "how and where" of the search; yet a panel must guard against expanding presumed reasonableness to searches that clearly are not "incident to arrest."
Looking to the manner, location, and time of Officer Bonney's search of the key-chain container, the majority errs in finding the search should be included among those extreme cases where the search was found unreasonable. Officer Bon- ney took the key-chain container directly from Maddox's hand at the exact time that he was arresting Maddox. He momentarily set the container in almost the exact location of the arrest-in order to handcuff Maddox. He then secured Maddox in the patrol car and directly returned to retrieve and assess the evidence found on Maddox's person. At this point, Officer Bonney searched the container. Maddox presents no evidence that the arrest was protracted or that Officer Bonney did not return directly to the items seized during the search incident to arrest. Maddox provides no evidence that Officer Bonney moved the evidence away from the scene of arrest and seizure before conducting his search. Thus, the search occurred within a time of mere minutes and within an area of mere feet; far from the passage of hours or the transportation to another location that occurred in Chadwick and Monclavo-Cruz.
The majority also supports its view by arguing that the warrantless search of an arrestee's person is an exception to the Fourth Amendment's warrant requirement and, therefore, only valid if it can be justified either as an attempt to ensure police safety or preserve evidence. Maj. Op. 11440 (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)). This argument fails because, as the Supreme Court has explained, the validity of a search incident to arrest does not rely upon satisfaction of those justifications.*fn11 First, although the search of an arrestee's person incident to arrest has been, at times, referred to as an "exception" to the Fourth Amendment's warrant requirement, the Supreme Court has made clear that the search is not so much an exception to the warrant requirement, as it is reasonable by its nature. Gustafson, 414 U.S. at 263-64. Second, Chimel never "purported to limit the traditional authority of the arresting officer to conduct a full search of the person of an arrestee incident to a lawful custodial arrest." Id. at 264; see also Robinson, 414 U.S. at 236 ("[I]t is the fact of custodial arrest which gives rise to the authority to search."). Therefore, the majority's reliance upon the necessity to demonstrate such justifications fails.
2. United States v. Turner
The majority relies upon Turner, where a search incident to arrest was found valid, in order to invalidate the search of Maddox. However, applying Turner to the facts here, it reinforces, rather than conflicts with, the Supreme Court's precedent in Chadwick and the Ninth Circuit case of Monclavo-Cruz. For these reasons, I find the majority's reliance upon Turner unconvincing.
Turner adopted a two-fold inquiry to aid a reviewing panel in determining whether a search was a valid search of an arrestee's person incident to arrest. Turner, 926 F.2d at 887. Turner requires a reviewing panel first determine whether the searched item was "within the arrestee's immediate control at the time he was arrested" and next determine whether the "events occurring after the arrest but before the search made the search unreasonable." Id. First, there can be no dispute here that the key chain container was "withing [Maddox's] immediate control at the time he was arrested." Neither party disputes that Maddox was arrested while at his car and that the keys were taken from Maddox's hand at the very moment of arrest. Second, there exist no extraordinary events occurring between the arrest and the search rendering Officer Bonney's further investigation of the seized item unreasonable.
A comparison of the facts in Turner also reveals the validity of Officer Bonney's search. In Turner, we found the search incident to arrest valid, where the officers did not search baggies, found on the bed where the defendant had been arrested, until after the defendant was cuffed and secured in another room. 926 F.2d at 886, 888.*fn12 Those baggies were found to contain cocaine base. Id. The Turner opinion does not explain whether the baggies searched were clear or opaque; it does not tell us how the baggies were closed, how they were searched or the tools necessary to open the baggies. Id. Instead, Turner provides a cursory conclusion that the search was valid, because the panel could not say that the officers' concerns for their own safety at the time of arrest "were unfounded." Id. at 888. As discussed above, I also cannot find Officer Bonney's actions unfounded given (1) the nature of Maddox's erratic driving, (2) his immediate and aggressive confrontational behavior, and (3) the suspicious circumstances surrounding the vehicle, combined with Robinson's instruction that reviewing courts refrain from unnecessarily second-guessing the officer's judgment regarding the necessary actions to protect his safety, see 414 U.S. at 235. Furthermore, before looking to the two-fold inquiry, the panel in Turner reiterated this Circuit's general principle for searches incident to arrest: "Such a search incident to arrest must be conducted at 'about the same time as the arrest.' " Turner, 926 F.2d at 887 (quoting Untied States v. Andersson, 813 F.2d 1450, 1456 (9th Cir. 1987)). Here, Officer Bonney's search of the key-chain container satisfies this standard, as it was "about the same time as the arrest."
Lastly, here the majority invalidates a search where an officer, without the aid of other officers, deems it necessary to secure a hostile and confrontational arrestee before immediately returning to those items taken directly from the arrestee's hands during the arrest. Therefore, it seems unlikely that the majority, if presented with the facts of Turner, would find a search valid where a prepared team of officers arrested, secured, and moved the arrestee before searching the bed upon which he was found.
The parties do not dispute that the arrest of Maddox was a lawful custodial arrest. The parties do not dispute that the item searched was taken from Maddox's hand at the exact moment he was arrested. The parties do not dispute that the item was not moved from the place of seizure and was searched within minutes of arrest. Therefore, I find that the search of Maddox's key-chain container was a lawful search of an arrestee's person incident to arrest. I dissent.