CA7: Backpack search for a weapon wasn’t justified; govt’s alternative theory was waived below

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).

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