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recognizing that, in the search of a vehicle context, "reasonable suspicion" must be based on some minimal level of objective suspicion, not merely a hunch or intuition, that evidence might be found in the arrestee’s vehicle
Summary of this case from People v. KesslerOpinion
No. 09SA161.
May 10, 2010.
Appeal from the District Court, Mesa County District Court, Richard Gurley, J.
Pete Hautzinger, District Attorney, Twenty-First Judicial District, Christopher Nerbonne, Deputy District Attorney, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant.
Peters Nolan, LLC, Andrew J. Nolan, Grand Junction, Colorado, Attorneys for Defendant-Appellee,
The People brought an interlocutory appeal, as authorized by section 16-12-102(2), C.R.S. (2009), and C.A.R. 4.1, challenging the district court's suppression of drugs seized from a vehicle driven by the defendant. After being followed from an import store that was the object of police surveillance and being stopped for a traffic infraction, the defendant conceded buying a "pot pipe" at the store, took the as yet unwrapped pipe from his pocket, and turned it over to the police. The district court found that these circumstances did not provide the officers with probable cause to search the defendant's vehicle or justify a search of the vehicle incident to the defendant's arrest.
Under the circumstances of this case, as determined by the district court, the arresting officers lacked probable cause to support a warrantless search of the defendant's vehicle or justification for a search incident to his arrest, as that doctrine was subsequently clarified in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In addition, the officers' search in this case did not fall within any recognized good-faith exception to the Fourth Amendment exclusionary rule. The district court's order suppressing the drugs seized from the defendant's vehicle is therefore affirmed, and the case is remanded for further proceedings consistent with this opinion.
I.
Following a traffic stop of John McCarty on December 19, 2008, and the subsequent recovery of a glass pipe from his person and drugs from the vehicle he was driving, he was charged with possession of drug paraphernalia and more than one gram of methamphetamine. He moved for suppression of the pipe and drugs, arguing that both were the products of an illegal stop and detention of his person and that the drugs were the product of an illegal search of his vehicle. After hearing the motion, the district court ordered suppression of the drugs but denied suppression of the pipe. Pertinent to the portions of the suppression order interlocutorily appealed here by the People, the court made the following findings and conclusions.
Officers conducting surveillance of an import store they suspected of illegal activities observed the defendant leaving the store, followed his vehicle, and stopped it a short while later for momentarily crossing a solid white center line. When he was unable to provide proof of insurance, the defendant was escorted from the vehicle and asked for permission to search it. Upon declining to give his permission, the defendant was questioned about his recent movements and confronted with police observations that conflicted with his account. In response to a direct question whether he had purchased a pipe at the import store, the defendant conceded that he had and produced from his pocket a glass pipe, which he described as a "pot pipe," unused and still in its packaging. While one of the officers remained with the defendant, the other searched his vehicle and discovered a mint tin in the center console containing suspected methamphetamine.
The district court found adequate grounds to support the stop and detention of the defendant, and although he had failed to provide proof of insurance, it found that he was not under arrest at the time he turned the pipe over to the officers. It also held, however, that discovering a new, unused glass pipe under these circumstances did not provide probable cause to believe evidence of a crime would be found in the defendant's vehicle, and it therefore rejected the People's argument that the warrantless search of the defendant's vehicle fell within the so-called automobile exception to the Fourth Amendment warrant requirement.
For two separate reasons, the court also rejected the assertion that the search was a validly executed search incident to the defendant's arrest. First it found that possession of drug paraphernalia, a class 2 petty offense in this jurisdiction, is not an offense for which a custodial arrest is authorized. Relying on Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), which permits a full search incident to arrest only upon a custodial arrest, it therefore held that the search of the defendant's vehicle could not possibly have been a constitutionally-valid search incident to arrest for possessing drug paraphernalia. In addition, apparently because it found that the officers also had probable cause to arrest the defendant for failing to provide proof of insurance, the court noted the Supreme Court's clarification of the search incident to arrest exception in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), released subsequent to the search in this case. The district court held that under Gant, and contrary to the precedent of this court existing at the time of the search, officers may search a vehicle incident to a recent occupant's arrest under the Chimel rationale only if the occupant could still access the vehicle at the time of the search, which the defendant could not. Although this second ground derived from a post-search legal development, the district court did not address the People's assertion that the exclusion of evidence was not the proper remedy for an unconstitutional search conducted in good-faith reliance on the then-existing precedent of this court.
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (authorizing searches of the area within the immediate control of an arrestee for officer safety and evidence preservation).
The People immediately filed an interlocutory appeal, as authorized by section 16-12-102(2), C.R.S. (2009), and C.A.R. 4.1, renewing their claim that the search was constitutionally permitted according to the automobile exception; as a search incident to arrest, even as that doctrine was clarified in Gant; and because the officers acted in good faith, in conformity with the then-existing case law of this jurisdiction.
II.
In New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court applied its search-incident-to-arrest jurisprudence to the motor vehicle context, articulating what many jurisdictions, including this one, understood to be a bright-line rule permitting a search of the passenger compartment of a vehicle incident to the arrest of a recent occupant, without regard to his actual ability to access the vehicle at the time of the search. See, e.g., People v. Savedra, 907 P.2d 596, 598 (Colo. 1995). Following the search in this case but before the district court's suppression ruling, the Supreme Court clarified its holding in Belton, as well as its subsequent application of that ruling in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and explained that the search of a vehicle incident to the arrest of a recent occupant can be justified only if the arrestee was unrestrained and within reaching distance of the passenger compartment at the time of the search or if it was reasonable for the arresting officers to believe that evidence relevant to the crime of arrest might be found in the vehicle. Gant, ___ U.S. at ___, 129 S.Ct. at 1719. While this articulation of the standard admittedly added a new "evidence gathering" rationale, not derived from Chimel, the Gant majority firmly rejected any broad understanding of Belton as applying the Chimel rationale to searches beyond the arrestee's reaching distance. Gant, ___ U.S. at ___, 129 S.Ct. at 1718-19.
Because the officers had probable cause to arrest the defendant for failing to provide proof of insurance and because, as even the defendant concedes, the district court erred in finding that possession of drug paraphernalia was not an offense for which one could be subjected to a custodial arrest, this search would have been justified as a search incident to arrest by this court's prior broad reading of Belton. If, as the People contend, the exclusionary rule of evidence cannot be applied to a search conducted in good-faith compliance with the then-existing precedent of this court, the district court's suppression order cannot stand, even if the search in this case failed to comport with the dictates of Gant.
See People v. Triantos, 55 P.3d 131, 133 (Colo. 2002); cf. People v. Bland. 884 P.2d 312, 320 (Colo. 1994) (state statute authorizing nothing more than issuance of penalty assessment ticket for possession of a single marijuana cigarette correspondingly permitted only the level of search allowed incident to a non-custodial arrest).
A.
Although the Fourth Amendment exclusionary rule is held to apply to the states through the Fourteenth Amendment, it is neither a specific provision, nor even a necessary corollary, of the Fourth Amendment itself. United States v. Leon, 468 U.S. 897, 905-06, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). It is not a personal right of any aggrieved party but rather operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. Id. at 906, 104 S.Ct. 3405. As such, the question whether an exclusionary sanction should be imposed in any particular class of cases is largely a matter of policy, to be resolved by the Supreme Court by weighing the costs and benefits of its application to that class of cases. Id. at 906-07,104 S.Ct. 3405.
Implementing this balancing approach, the Supreme Court has limited the types of proceedings, or stages of those proceedings, at which the exclusionary rule may be applied; the parties in whose favor it may be applied; and even the purposes for which it may be applied. With regard to the kinds of executive branch conduct for which imposition of the exclusionary sanction is considered more costly than beneficial, the Court has created an exception for objective good-faith reliance on judicially-issued warrants, see Leon, 468 U.S. at 922, 104 S.Ct. 3405; Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984); see also Arizona v. Evans, 514 U.S. 1, 16, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (recognizing "a categorical exception to the exclusionary rule for clerical errors of court employees"); for certain kinds of Fourth Amendment violations in executing those warrants, see Hudson v. Michigan, 547 U.S. 586, 594, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (violation of knock and announce rule); and even for sufficiently attenuated reliance on withdrawn judicial warrants that remained in the system due to executive branch negligence, see Herring v. United States, ___U.S. ___, ___, 129 S.Ct. 695, 698, 172 L.Ed.2d 496 (2009). It has similarly recognized an exception for objective good-faith reliance on legislation, subsequently held to be unconstitutional, designating particular conduct criminal, see Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), or excusing the warrant requirement for non-criminal, administrative investigations, see Illinois v. Krull, 480 U.S. 340, 349-50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). It has thus far not, however, recognized a good-faith exception to the exclusionary rule for reliance on prior holdings of its own from which it has subsequently departed, much less for reliance on the erroneous interpretations of its prior holdings by lower courts.
Quite the contrary, the Supreme Court has found policy considerations other than simply the costs and benefits of deterrence to be dispositive of whether criminal defendants should be entitled to the benefit of its new constitutional rulings. Although consideration of the purpose to be served by a new constitutional rule, among other individualized factors, see 1 Wayne R. LaFave, et al., Criminal Procedure § 2.11(c) (3d ed. 2007) at 869-75 (discussing the " Linkletter-Stovall" criteria), had at one time resulted in applying new extensions of the exclusionary rule only to searches conducted after their announcement, see United States v. Peltier, 422 U.S. 531, 535-42, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Williams v. United States, 401 U.S. 646, 649-59, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (plurality opinion), the Court ultimately rejected this approach to retroactivity. See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); see also Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). At least where a ruling extending the reach of the exclusionary rule did not represent a clear break with past precedent, the Court in Johnson held that it would retroactively apply to all cases that had not yet become final, emphasizing the importance of having a clear, consistent rule that deals fairly with all similarly situated defendants. Johnson, 457 U.S. at 554-56, 102 S.Ct. 2579. Subsequently, although not in the context of a Fourth Amendment violation, the Court also applied this retroactivity approach to rulings representing a clear break from past precedent, reasoning that the policy considerations remain the same and characterizing as "inappropriate" the differential treatment of retroactive application to convictions on direct review "based solely upon the particular characteristics of the new rules." Griffith v. Kentucky, 479 U.S. 314, 326, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a `clear break' with the past."); see also Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ("Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.").
Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
Even at that time, the Supreme Court concluded that a defendant who argued for a change in the exclusionary rule must be given the benefit of a successful challenge. See Stovall, 388 U.S. at 301, 87 S.Ct. 1967 ("That they must be given that benefit is, however, an unavoidable consequence of [s]ound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law.").
Although it may not have expressly considered and rejected the good-faith exception proposed by the People, the Supreme Court has nevertheless effectively rejected any doctrine of non-retroactivity premised on the exclusionary rule's lack of deterrent effect. A good-faith exception for reliance upon subsequently overruled Supreme Court decisions would therefore appear to be in "untenable tension" with its retroactivity precedent. See United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir. 2009). And if a lack of deterrent value in applying the exclusionary rule to searches conducted in good-faith reliance on controlling Supreme Court precedent would not excuse its application, it is difficult to conceive that the same lack of deterrent value in enforcing the rule against officers acting in good-faith reliance upon a lower court misinterpretation of Supreme Court precedent could justify that result. Id. But see United States v. Davis , 598 F.3d 1259, 1263-68 (11th Cir. 2010) (concluding otherwise); United States v. McCane, 573 F.3d 1037, 1041-45 (10th Cir. 2009) (same); People v. Key, No. 07CA1257, ___ P.3d ___, ___, 2010 WL 961646, at *2 (Colo.App. Mar.18, 2010) (same).
In any event, the United States Supreme Court has made it abundantly clear that neither the reach of the exclusionary rule nor its retroactivity jurisprudence is simply a matter of constitutional construction; rather, both largely involve policy choices peculiarly within the discretion of the Court and subject to continual reassessment. See Hudson, 547 U.S. at 597, 126 S.Ct. 2159 ("We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago."). A good-faith exception to the exclusionary rule, when "tailored to situations in which the police have reasonably relied on a warrant issued by a detached and neutral magistrate but later found to be defective," has been expressly found compatible with the retroactivity policy articulated in Johnson. See Leon, 468 U.S. at 912, 104 S.Ct. 3405. In Gant, however, the majority did not suggest that the good-faith exception would apply to reliance on pre- Gant case law, and the dissenters clearly concluded that it would not. See Gant, ___ U.S. at ___, 129 S.Ct. at 1726 (Alito, J., dissenting) ("The Court's decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law.").
Under these circumstances, we are reluctant to expand the good-faith exception to the Supreme Court's exclusionary rule beyond the limits set by that Court itself.
B.
With respect to the search-incident-to-arrest exception as now articulated in Gant, there is no suggestion that the defendant in this case was capable of accessing his vehicle at the time of the search. The search therefore could be justified as a search incident to his arrest only if the officers had a reasonable basis to believe that evidence of the crime of arrest, or some crime for which they had probable cause to arrest, might be found in the defendant's vehicle. We recently concluded that by using language like "reasonable to believe" and "reasonable basis to believe," the Supreme Court intended a degree of articulable suspicion commensurate with that sufficient for limited intrusions like investigatory stops. See People v. Chamberlain, No. 09SA124, 229 P.3d 1054, 1057, 2010 WL 1840823 (Colo. May 10, 2010).
See Gant, ___ U.S. at ___, 129 S.Ct. at 1725 (Scalia, J., concurring).
Although the trial court did not fully appreciate the scope of offenses for which the officers had probable cause to make a custodial arrest, the ultimate question whether the historical facts found by a trial court amount to reasonable, articulable suspicion is a matter to be decided by this court. See People v. Brown, 217 P.3d 1252, 1255 (Colo. 2009). We conclude that being stopped for a traffic infraction immediately after leaving a suspect import store and being in possession of a recently purchased and still unwrapped and unused "pot pipe," although sufficient to justify an arrest for possession of drug paraphernalia, is nevertheless insufficient to provide reasonable, articulable suspicion that additional evidence of that offense might be found in the arrestee's vehicle. Possession of drug paraphernalia under these circumstances was clearly insufficient to justify an arrest for possession or use of illegal drugs, and although it is perhaps conceivable that the arrestee's vehicle might contain some evidence of the possession offense for which the officers had probable cause to arrest, nothing peculiar to these circumstances supported a reasonable suspicion that any additional evidence existed, much less that it would reside in the arrestee's vehicle, rather than on his person or elsewhere. See People v. Martinez, 200 P.3d 1053, 1057 (Colo. 2009) (investigatory stop must be based on some minimal level of objective suspicion, not merely a hunch or intuition (citing People v. Polander, 41 P.3d 698, 703 (Colo. 2001))).
C.
The People also renew their assertion that the officers had probable cause to search the defendant's vehicle for items connected to the crime of possession of drug paraphernalia and, if so, that their search fell within the automobile exception to the warrant requirement. Because the officers lacked even reasonable, articulable suspicion that the defendant's vehicle contained evidence of drug paraphernalia, a fortiori they lacked probable cause to believe they would find evidence of drug paraphernalia in it.
III.
The order of the district court suppressing drugs found in the defendant's vehicle is therefore affirmed, and the case is remanded for further proceedings consistent with this opinion.
Justice EID dissents.