The search of defendant’s backpack wasn’t justified under any legal theory because there was neither probable cause nor reasonable suspicion for the detention. He and his companion were handcuffed behind their backs, and officer safety was no longer an issue. The government didn’t argue inevitable discovery until a footnote in its appellate brief, and the court finds that waiver. United States v. Leo, 2015 U.S. App. LEXIS 11457 (7th Cir. July 2, 2015):
And the government’s belated reference to probable cause in a footnote in its appellate brief—that “the officers had probable cause to search the backpack and would have discovered the gun had they obtained a warrant”—is not a contention that the search was lawful. Rather, the government’s footnote invokes the inevitable-discovery doctrine, which allows the government to avoid suppression of evidence seized in violation of the Fourth Amendment upon showing that lawful conduct inevitably would have led to discovery of that evidence. Howard, 729 F.3d at 663. That exception to the exclusionary rule, like the underlying question of probable cause, was at least forfeited, and arguably waived, by the government’s litigation strategy in the district court. See United States v. Jones, 713 F.3d 336, 350-51 (7th Cir. 2013); United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000); United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir. 1998); United States v. Tracey, 597 F.3d 140, 149 (3d Cir. 2010); United States v. Archibald, 589 F.3d 289, 295-96 (6th Cir. 2009).
We are given no reason to excuse that strategy, not that it matters. In this court the government has only compounded its problems by tossing out a fresh assertion about probable cause and inevitable discovery but then failing to cite any legal authority or otherwise develop an argument. See United States v. Lewis, 608 F.3d 996, 1000 (7th Cir. 2010); United States v. Wantuch, 525 F.3d 505, 516 n.5 (7th Cir. 2008). Not even at oral argument, when a judge’s question prompted Leo’s lawyer to adamantly deny that the 911 caller’s report had established probable cause, did the government have anything to say on the subject. As we often warn litigants, it is not our responsibility to make the parties’ arguments for them. See Wantuch, 525 F.3d at 516 n.5.
. . .
The government maintains that the full search of Leo’s backpack is authorized by Michigan v. Long, 463 U.S. 1032 (1983). But Long-which upheld a police officer’s protective search of a car during a Terry stop—is readily distinguishable. First, the Supreme Court has recognized a diminished expectation of privacy in a car, partly because cars that travel on public roads are subject to “pervasive regulation.” See Pennsylvania v. Labron, 518 U.S. 938, 940 (1996); California v. Carney, 471 U.S. 386, 391-92 (1985). Second, Long involved a roadside encounter with a motorist—a type of encounter which, the Supreme Court emphasized, is “especially fraught with danger to police officers.” Long, 463 U.S. at 1047. Third, the Court in Long was careful to emphasize that the search of the car was lawful because the officers had a reasonable belief that the suspect was dangerous and may have been able to “gain immediate control of weapons.” Id. at 1049-50.
In contrast, the search here did not involve a car or a roadside encounter, nor did the officers have a reasonable belief that Leo could get “immediate control” of the gun in his backpack. The reasonableness of a search is evaluated “on the basis of the facts as they existed at the time” of the search. United States v. Jacobsen, 466 U.S. 109, 115 (1984); see Terry, 392 U.S. at 21-22; United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995). And at the time of the search in this case, Leo’s hands were cuffed behind his back (as were Aranda’s), the officers already had frisked both men and found no weapons, and the backpack was in Officer Seeger’s hands and no longer in Leo’s possession. So when Seeger unzipped and emptied the backpack, it was inconceivable that either Leo or Aranda would have been able to lunge for the bag, unzip it, and grab the gun inside. See Gant, 556 U.S. at 343 (holding that officer safety justifies search of arrestee’s car incident to arrest “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search”); United States v. Tejada, 524 F.3d 809, 811-12 (7th Cir. 2008) (explaining in the context of search incident to arrest that it is “inconceivable” that defendant who was handcuffed, face down on the floor, and surrounded by police officers could have opened entertainment center and unzipped travel bag inside it to reach for weapon).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)