ORAL ARGUMENT NOT YET SCHEDULED



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No.



UNITED STATES OF AMERICA, Plaintiff-Appellant,



v.



RONNIE xxxxxxxxxx, Defendant-Appellee.



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



BRIEF FOR APPELLEE







A.J. Kramer

Federal Public Defender

Counsel for Defendant-Appellee 625 Indiana Ave., N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500


District Court

 



CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES



Pursuant to D.C. Circuit Rule 28(a)(1), appellee hereby states as follows:

A. Parties and Amici

The parties below and in this court are the plaintiff-appellant, the United States of America, and the defendant-appellee, Ronnie xxxxxxx. There are no intervenors or amici, either in the district court or this court.

B. Rulings Under Review

In this appeal, appellant challenges the ruling of the district court, the Honorable Gladys Kessler, granting defendant's motion to suppress the evidence seized during a search of the car appellee was driving. There is no official citation to the district court's opinion.

C. Related Cases

There are no related cases of which appellee is aware. This case has not previously been before this court.


ISSUE PRESENTED FOR REVIEW

Whether a search can be justified as incident to arrest where the conduct for which defendant was arrested was not a crime, and thus the arrest was unlawful, but where the government contends that there was an offense for which the officer could have lawfully arrested defendant even though no arrest was made for that offense.

STATUTES AND REGULATIONS

All applicable statutes are contained in the brief of appellant.



TABLE OF CONTENTS



ISSUE PRESENTED FOR REVIEW ii



STATUTES AND REGULATIONS iii



TABLE OF CONTENTS iv



TABLE OF AUTHORITIES vi



STATEMENT OF THE CASE 1



B. Statement of Facts 2



1. The Suppression Hearing Testimony 2



2. The Legal Argument 5



3. The District Court's Initial Ruling 6



4. The Legality of the Arrest Redux 7



5. The First Conference Call 9



6. The Second Conference Call 10



SUMMARY OF ARGUMENT 11



ARGUMENT 12



BECAUSE THE ARREST OF DEFENDANT WAS UNLAWFUL, THE EVIDENCE DISCOVERED IN A SEARCH INCIDENT TO THAT ARREST MUST BE SUPPRESSED 12



A. Standard of Review 12



B. The Merits 12







for Reckless Driving 26





CONCLUSION 30

CERTIFICATE OF LENGTH 31



CERTIFICATE OF SERVICE 31









TABLE OF AUTHORITIES



Cases



Arizona v.Evans, 514 U.S. 1 (1996) 24



*Kennedy v. District of Columbia, 601 A.2d 2 (D.C. 1991) 29, 30



*Knowles v. Iowa, 525 U.S. 113 (1998) passim



New York v. Belton, 453 U.S. 454 (1981) 12



Ornelas v. United States, 571 U.S.690 (1996) 12



Scott v. United States, 436 U.S. 128 (1978) 16



Swailes v. District of Columbia, 219 A.2d 100 (D.C. 1966) 29



United States v. Cervantes, 19 F.3d 1151 (7th Cir. 1994) 24



United States v. Dhinsa, 171 F.3d 721 (2nd Cir. 1998) 22, 23



United States v. Hill, 131 F.3d 1056 (D.C. Cir. 1997) 10, 16



United States v. Hill, 195 F.3d 258 (6th Cir. 1999) 19



United States v. Kalter, 5 F.3d 1166 (8th Cir. 1993) 21



*United States v. McLaughlin, 170 F.3d 889 (9th Cir. 1999) 20, 25



United States v. Miller, 146 F. 274 (5th Cir. 1998) 15, 24



*United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000) 15



United States v. Robinson, 414 U.S. 218 (1973) 12



*United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000) 14, 16



Whren v. United States, 517 U.S. 806 (1996) passim






* Authorities upon which we chiefly rely are marked with asterisks.







Statutes and Rules



18 U.S.C. 922(g)(1) 1



D.C. Code 40-301 (d-1) 7



D.C. Code 40-712 (b) 26



Other Authorities



1 Wayne R. LaFave, Search and Seizure (3d ed., 1996) 24



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No. 00-xxxx



UNITED STATES OF AMERICA, Plaintiff-Appellant



v.



RONNIE xxxxxxx, Defendant-Appellee.



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





BRIEF FOR APPELLEE

STATEMENT OF THE CASE



A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On January 27, 2000, the defendant-appellee, Ronnie xxxxxxx, was charged in a one-count indictment with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. 922(g)(1). The case arose from a stop and search of a car defendant was driving on November 19, 1999.

On April 13, 2000, the district court held a hearing on defendant's motion to suppress the guns found in the car and statements he made. The district court denied the motion. On September 7, 2000, the district court granted defendant's motion to reopen the suppression hearing, and granted the suppression motion. The government filed a timely notice of appeal.

1. The Suppression Hearing Testimony

Detective Caesar Casiano of the Metropolitan Police Department was the sole witness at the suppression hearing. On November 19, 1999, Casiano was in his personal car, coming back to police headquarters after having gotten the car washed (MS 7). (1) Casiano was traveling westbound in the left lane of the 800 block of the Southeast Freeway, when a white car, driven by defendant, came from his right hand side and merged left (MS 8). This forced Casiano to move to the left shoulder of the road, which is a ramp that is an exit to RFK stadium (MS 8). Casiano slowed down on the ramp, and was subsequently able to merge back into traffic (MS 23). If Casiano had not moved over, there would have been an accident (MS 8). Casiano did not know if defendant knew he had run Casiano off the road (MS 26).

Casiano did not know why defendant changed lanes; he could have swerved to avoid an object or another car, but Casiano did not see (MS 22). Casiano had not noticed defendant's car before it moved to the left (MS 22).

Defendant kept going and was changing lanes back and forth from left to right without using signals and traveling at a high rate of speed (MS 9). Defendant was going faster than the traffic flow, which was "kind of unsafe for traffic," although Casiano did not know how fast defendant was going or even how fast Casiano himself was going, because he did not look at the speedometer (MS 10, 23, 25). There was no testimony about the speed limit on that section of the Southeast Freeway. As defendant continued, he did not cut off any other cars or run any other cars off the road, and no one slammed on their brakes (MS 26-27).

Casiano tried to keep up with defendant's car, but never got directly behind it (MS 10). Casiano was going to proceed on his way and was not going to follow defendant, but defendant ended up taking the same route as Casiano was taking to police headquarters (MS 10-11). This involved taking the Third Street exit off the freeway (MS 10).

Defendant stopped in the traffic in front of the Mitch Snyder Shelter on Second Street, near E Street (MS 11, 27). Casiano, who was in the right lane of traffic, pulled up beside defendant, who was in the left lane of traffic (MS 11). Casiano, who was in civilian clothes, showed his badge to defendant and told him to pull over and that Casiano was a police officer (MS 12). Defendant pulled over to the left and Casiano pulled right behind (MS 12).

Casiano got out and walked up to defendant, who was sitting in his car (MS 12, 30). Casiano told defendant he was being stopped because he had almost run Casiano off the road (MS 12, 31). Defendant said that he did not know or did not remember he had done that (MS 31). Casiano asked for defendant's license, but defendant said he did not have it with him (MS 12). Defendant gave Casiano defendant's name, Social Security number, license number, and a picture identification from work (MS 12, 33).

Casiano called in the information on his portable radio to a dispatcher (MS 33). The dispatcher responded that defendant's license was expired as of October 14, 1999 (MS 13). Casiano decided to arrest defendant upon hearing this information, and called for a marked unit (MS 35). When the marked unit arrived, Casiano told defendant to get out of the car because he was under arrest for having an expired permit (MS 13, 26). Defendant got out, and was patted down and handcuffed by Casiano (MS 36).

Casiano had no reason to believe defendant had drugs or guns either on him or in the car, but as he patted down defendant, Casiano asked defendant if he had any drugs or guns on him or in the car (MS 13, 39). Defendant replied no to both. Casiano always asks these questions whenever he arrests someone, even though he knows that once he arrests someone, he is supposed to read them their Miranda rights before asking them questions (MS 13, 39). Casiano then handcuffed defendant, and they waited for a transport unit (MS 14).

While waiting for the transport unit, Casiano decided to check under the driver's seat of the car (MS 14). He reached under the seat and found a small nylon bag with a gun inside (MS 14). Casiano, saying that he thought defendant said he did not have any guns, showed the gun to defendant (MS 14). Defendant replied that the gun was not his and that it was a .22 and did not work (MS 14).

Defendant was taken from the scene by a transport unit, and Casiano decided to check the car again (MS 14). He found another gun under the floormat on the driver's side (MS 15). Back at the police station, before reading defendant his Miranda rights, Casiano mentioned to defendant about finding the second gun, and in the ensuing discussion defendant said it was not his (MS 49-50).

Casiano did not issue defendant a citation for reckless driving or an improper lane change (MS 52).

2. The Legal Argument

Defendant argued that the stop was illegal because there was no probable cause to stop defendant for any violation of law (MS 52-54). No citation was issued to defendant for anything he did preceding the stop, there was no testimony about defendant's speed or about the speed limit, the officer did not know why defendant had moved over, and there was no indication that defendant's driving was reckless (MS 52-53). Defendant asserted that his driving did not fit the definition of the D.C. Code reckless driving statute (MS 55). Defendant did not challenge the arrest for the expired permit, but claimed it was a fruit of the illegal stop (MS 54). Defendant also raised an issue as to the deliberate violation of his Miranda rights (MS 54).

The government argued that almost hitting Casiano's car, and the subsequent driving, gave Casiano a basis to stop defendant for reckless driving (MS 55). Upon learning of the expired permit, Casiano had the power to arrest defendant, and the search of the car was then justified as a search incident to arrest (MS 56). The government argued that the questioning of defendant was justified as preliminary investigative questioning (MS 56).

3. The District Court's Initial Ruling

The district court, crediting Casiano's description of the events, found there was probable cause to stop the defendant, although the district court did not explain for what (MS 59). When the report came back that defendant's license was expired there was "no question that the officer had probable cause to arrest the defendant," and the "search of the car was a valid search incident to arrest" (MS 59). The district court also found there was "no question whatsoever that the [defendant's] statements were elicited in violation of Miranda" (MS 61). (2)

4. The Legality of the Arrest Redux

Almost six months later, after the jury had been selected and the trial was about to start, the government informed the court that Casiano had learned that under D.C. law, when someone has an expired license, and is driving within ninety days of "that expiration or suspension, you are subject to a fine but not to a criminal penalty" (TR 3-4). The stop in this case was "well within this ninety day window of opportunity -- where the driver is subject to a fine but not arrest -- or excuse me, not criminal penalties" (TR 4). See D.C. Code  40-301(d-1). (3)

The government argued that the arrest was still legal, however, because it claimed that Casiano had not received information on the scene about the date of the expiration, so he still had probable cause to arrest defendant (TR 4-5). The government also argued that there was probable cause so that Casiano "could have arrested" defendant for reckless driving, "but he did not" (TR 5).

Defendant moved to reopen the suppression hearing because the district court's ruling had been that the search of the car was lawful as a search incident to arrest (TR 6). (4) Because the arrest was illegal, the evidence should be suppressed (MS 7). Defendant pointed out that Casiano testified that during his conversation with the dispatcher Casiano knew that the expiration of the license was October 14, 1999 (TR 7).

The government stated it had listened to the radio run, and claimed that the dispatcher did not give the date of the expiration, and that Casiano "later learned the date," although the government did not identify when that was (TR 7). Defendant noted that four days after defendant's arrest Casiano had testified at a preliminary hearing in Superior Court, where defendant was initially charged with a D.C. gun offense arising from the arrest (TR 7-8). At that hearing, Casiano stated that he specifically asked the dispatcher about defendant's expired permit and was told by the dispatcher that it "was expired as of 10-14-99 with revocation pending" (TR 7; PH 5). Casiano also testified at the preliminary hearing, again when specifically asked, that defendant was arrested for "[n]o D.C. permit," and not for reckless driving (TR 8; PH 23).

The district court stated that this was the first time it had heard the arrest was for the expired permit, not reckless driving (TR 8). The district court indicated that it "would have found probable cause on either basis" (TR 8). The government agreed that the arrest was for the lack of a permit (TR 8-9).

The government contended that if defendant had had a valid permit, Casiano could have arrested defendant or issued him a ticket for reckless driving (TR 9). Defendant countered that there was no indication Casiano would have arrested defendant for reckless driving, especially in light of Casiano's testimony that the arrest was not for reckless driving (TR 9). The district court decided to hold a conference call, given the manner in which the issue arose.

5. The First Conference Call

At the first conference call at 2:30 p.m., the parties discussed primarily the Supreme Court's decisions in Knowles v. Iowa, 525 U.S. 113 (1998), and Whren v. United States, 517 U.S. 806 (1996). Defendant contended that under Knowles, because defendant's arrest for the license violation was unlawful, and he was not arrested for any other offense, the search could not be justified as a search incident to a lawful arrest (TC1 2-3). The government argued that Whren focuses on the objective facts, not the subjective intent of the officer, and that Casiano had an objective basis to arrest defendant for reckless driving (TC1 4). Defendant argued that objectively Casiano arrested defendant only for having an expired license, not for anything else (TC1 5).

The district court noted that defendant had been arrested "concededly improperly, for no permit," although there were also sufficient facts to justify an arrest for reckless driving (TC1 6). The government referred the district court to United States v. Hill, 131 F.3d 1056 (D.C. Cir. 1997)(TC1 8). The district court decided to read Hill, and consider the matter further.

6. The Second Conference Call

At the second conference call at 4:00 p.m., the district court made its decision, finding the case governed by Knowles (TC2 2). The district court found that Casiano's actions and motives were "perfectly clear," and that the arrest was for no permit, and not for reckless driving (TC2 3). Just as the officer in Knowles chose to issue a citation and not make an arrest, Casiano chose to arrest for no permit, not for reckless driving (TC2 4). In Knowles, the Court had held that "even though the officer had probable cause" to arrest and could have arrested the defendant, he did not do so, and thus he could not search the car (TC2 4). The district court thus granted defendant's motion to reopen the suppression hearing, and granted the motion to suppress.

SUMMARY OF ARGUMENT

Detective Casiano arrested defendant for driving with an expired license. The government does not dispute that defendant's arrest for driving without a permit was not lawful, because a person driving with an expired license is not subject to criminal penalties or arrest unless the individual operates a vehicle more than ninety days after the license has expired. On November 19, 1999, when defendant was arrested, his license had only been expired for approximately thirty-six days, well under the ninety-day grace period provided by the statute. Thus, there was no objective basis for Casiano's action, i.e., his arrest of defendant for driving with an expired license. Because there was no objective basis for Casiano's action, Casiano violated defendant's Fourth Amendment rights by arresting him for driving with an expired license. And because Casiano did not opt to arrest defendant on any other basis (even assuming another basis existed), under Knowles the evidence seized pursuant to that illegal arrest must be suppressed.

ARGUMENT

BECAUSE THE ARREST OF DEFENDANT WAS UNLAWFUL, THE EVIDENCE DISCOVERED IN A SEARCH CONDUCTED INCIDENT TO THAT ARREST MUST BE SUPPRESSED

Defendant agrees with the government that the legal findings of the district court in this case are reviewed de novo, and the factual findings are reviewed for clear error. Ornelas v. United States, 571 U.S. 690, 699 (1996).

In United States v. Robinson, 414 U.S. 218, 235 (1973), the Court decided that a search of a person incident to a lawful arrest is "an exception to the warrant requirement of the Fourth Amendment," and is also "'reasonable.'" The Court held that "[i]t is the fact of the lawful arrest which establishes the authority to search, and...that in the case of lawful custodial arrest a full search of the person" is permissible. Id.(emphasis added).

The Court subsequently extended the search incident to arrest rule to allow searches of the passenger compartment of an automobile and containers therein where there has been a "lawful custodial arrest" of the occupant of the car. New York v. Belton, 453 U.S. 454, 459 (1981) (emphasis added). In Belton, it was not questioned that "the respondent was the subject of a lawful custodial arrest." Id. at 462 (emphasis added).

The government concedes that defendant's arrest on the expired permit charge was "legally incorrect" (GB 12), and was an "invalid ground upon which to take appellee into custody" (GB 16). Because the arrest was not lawful, the search cannot be justified under the search incident to arrest doctrine. That should be the end of the matter. Nevertheless, the government argues, incorrectly, that the decision in Whren v. United States, 517 U.S. 806 (1996), somehow validates the search in the present case.

In Whren, the Supreme Court held that an officer's subjective motive for a traffic stop does not invalidate otherwise objectively justifiable behavior. The officers in Whren justified the stop on the ground that there was probable cause to believe that various minor traffic violations had occurred. The defendants argued that the stop was invalid despite the existence of probable cause because the officers' subjective motivation for stopping the defendants was not those traffic violations. Dismissing the idea that "an ulterior motive might serve to strip the agents of their legal justification," id. at 812, the Court held that "the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Id. at 814. Although rejecting the defendants' argument with respect to officers' subjective motivations, the Court reaffirmed the basic Fourth Amendment principle that the circumstances, viewed objectively, must justify the action taken. Id. at 812-13.

After Whren, then, an officer's subjective motivation is irrelevant, but the officer must have an objective basis to support his action, in that case a stop for traffic violations. Thus, Casiano's subjective intent, including his good faith or his (mis)understanding of the law, is irrelevant. See, e.g., United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000)(concluding that good faith belief "based on a mistaken understanding of the law cannot constitute the reasonable suspicion required for a constitutional traffic stop"). Just as in Whren, where the Court examined whether there was probable cause to support a stop for traffic violations, the pivotal inquiry in this case is whether the circumstances, viewed objectively, justified arresting defendant for driving with an expired license. Because there was absolutely no objective justification for arresting defendant for driving with an expired license, the arrest violated defendant's Fourth Amendment rights. As the Fifth Circuit explained, "[t]he rule articulated by the Supreme Court in Whren provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justifications for their actions. But the flip side of that leeway is that the legal justification must be objectively grounded." United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). See also United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000).

In Miller, 146 F.3d at 276, police officers identified a defendant's motor home for a pretextual stop to search for drugs. The police officers observed that the defendant drove with his left turn signal on through an intersection without turning left or switching lanes. Id. Believing this to be a traffic violation, the officers stopped the defendant and obtained consent to search the motor home. Id. In fact, however, driving with a turn signal on was not a traffic offense. Id. at 278. Because the legal justification given for the stop---driving with a turn signal on---was not a traffic infraction, the court concluded that the stop was illegal, and the consent to search the vehicle was therefore tainted. Id. at 279-80.

Similarly, in Lopez-Soto, 205 F.3d at 1105, a police officer stopped the defendant for failing to display a registration sticker in the rear window because the officer believed in good faith, and had been instructed, that the defendant was required by law to display the sticker there. In fact, the sticker was required to be on the windshield, and the stop was thus made based on the officer's "mistaken view of the law." Id. Because the stop "was not objectively grounded in the governing law," the court held that the stop violated the defendant's Fourth Amendment rights. Id. at 1106.

In Twilley, 222 F.3d at 1094, an officer stopped an out-of-state car because he believed it should have had two license plates, when in fact the other state issued only one license plate. The court stated that "a belief based on a mistaken understanding of the law cannot constitute the reasonable suspicion for a constitutional traffic stop." Id. at 1096. The court noted that a good faith, reasonable factual belief that is mistaken may provide reasonable suspicion, but because legal grounds for a stop must be assessed objectively, "if an officer makes a traffic stop based on a mistake of law, the stop violates the Fourth Amendment." Id. at 1096 & n.1.

This court's decision in United States v. Hill, 131 F.3d 1056 (D.C. Cir. 1997), is consistent with Twilley, Miller, and Lopez-Soto. In Hill, the police stopped a car because an officer believed the temporary license tags did not have the required vehicle identification number (VIN) on them. Id. at 1060. The district court held that the stop was valid because of the officer's subjective belief. This court held that the correct test is whether the "'circumstances, viewed objectively, justify the action taken.'" Id. at 1060 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). This court thus reversed and remanded, requiring a determination of whether it was "objectively reasonable for the officer to conclude that the tags were missing a VIN." Twilley, 131 F.3d at 1060 (footnote omitted). The court noted that even if the officer was mistaken about the fact of whether a VIN was on the tag, "the stop was still permissible as long as the officer's belief that the VIN was missing was objectively reasonable." Id. at 1060 n.3.

In this case, Casiano's legal justification for the arrest was that defendant was driving with an expired permit. Under the statute, however, driving with an expired permit is not a criminal offense unless an individual is driving more than ninety days after the license has expired. Casiano therefore was mistaken about the law, and an arrest for driving with an expired permit was not objectively grounded. Casiano did not make any factual mistake. (5) Thus the arrest was invalid and the evidence seized pursuant to that arrest must be suppressed.

2. Under Knowles, the Mere Existence of Probable Cause to Arrest Does Not Justify a Search Even though Casiano's action, the arrest of defendant for driving with an expired permit, was objectively unreasonable, the government nonetheless contends that probable cause to arrest for reckless driving can justify an arrest for driving with an expired permit. According to the government, the existence of probable cause to arrest defendant for reckless driving validates the search of defendant's vehicle in spite of the fact that Casiano did not arrest defendant for reckless driving. As the district court correctly recognized, the government's position is directly contrary to the unanimous decision of the Supreme Court in Knowles v. Iowa, 525 U.S. 113 (1998).

In Knowles, police officers had probable cause to arrest the defendant for speeding. Instead of arresting the defendant, the officers issued him a citation for speeding. The officers then proceeded to search the defendant's car pursuant to a state statute that allowed officers to search vehicles whenever they had probable cause to arrest regardless of whether they issued a citation or made an actual arrest. The Court held that the search of the car was unconstitutional. The mere existence of probable cause to arrest the defendant for speeding, the Court held, did not provide the officers with the right to search the car unless they actually exercised the option of arresting him for speeding.

After Knowles, it is clear that the existence of probable cause to arrest for a traffic violation cannot justify a search unless an officer exercises that right to arrest the defendant for that violation. In this case, the district court found that there was probable cause to believe that defendant drove recklessly. Assuming that there was probable cause to believe that defendant drove recklessly, an issue discussed in section 3 below, Casiano could have arrested defendant for reckless driving. But, as in Knowles, he did not exercise that option. Because Casiano did not arrest defendant for reckless driving, the existence of probable cause to believe that defendant drove recklessly is irrelevant to whether the search of defendant's car was constitutional.

Significantly, the two cases that the government relies on for its argument that Knowles is inapplicable to this case stand for nothing more than the rather unremarkable proposition that Knowles overruled neither Whren's holding with respect to pretext nor the holding in Belton that the police may search a vehicle pursuant to a valid arrest (GB 23-24). The two cases did not present facts even remotely similar to this case.

In United States v. Hill, 195 F.3d 258 (6th Cir. 1999), the defendants were stopped for speeding. The police officer clearly had probable cause to justify the stop. Id. at 266. While the officer was writing the citation for speeding, he eventually developed probable cause that the defendants were engaged in criminal activity, and he searched the car pursuant to that suspicion. The Sixth Circuit held that Knowles did not change the Whren analysis with respect to pretextual stops, and it therefore upheld the traffic stop because there was probable cause to believe that defendants were speeding. Id. at 264.

In United States v. McLaughlin, 170 F.3d 889 (9th Cir. 1999), the defendant was arrested on an outstanding warrant, and he did not contest the lawfulness of his arrest. The only question addressed by the court was whether the search of the vehicle, which took place five minutes after the defendant was arrested and removed from the scene, was properly considered incident to his arrest. Id. at 890-91. The court began its analysis by observing that Knowles did not disturb the longstanding rule that the police may search a vehicle as a "'contemporaneous incident of [a lawful] arrest.'" Id. at 891 (quoting Belton, 453 U.S. at 460). Addressing only the continued viability and application of Belton to a lawful arrest, McLaughlin never addressed the lawfulness of the arrest, the issue presented in this case.

Citing Whren, the government insists that Casiano's reason for arresting defendant is irrelevant to the probable cause determination. (GB 16-22). Casiano's actions (and inactions), however, cannot possibly be irrelevant: he arrested defendant for driving with an expired permit, and he declined to arrest defendant for driving recklessly. His subjective motivation, i.e., the reason he decided to arrest defendant for driving with an expired permit, is irrelevant, but the actions themselves are not. Because there was no objective justification for arresting defendant for driving with an expired permit, that action by Casiano was invalid. Indeed, under Knowles, the irrelevant fact is the existence of probable cause to believe that reckless driving occurred; as soon as Casiano declined to arrest defendant for that offense, the issue of probable cause became irrelevant to the subsequent search.

The government cites United States v. Kalter, 5 F.3d 1166 (8th Cir. 1993), for the proposition that a police officer's error "in relying upon an incorrect legal theory" does not invalidate a valid stop (GB 19). In Kalter, police officers had probable cause to stop the defendant for driving without lights at night. Id. at 1168. The officers saw a rifle on the rear seat and arrested the defendant for carrying the gun because they thought that a state statute prohibited its carrying. Although concluding that defendant had not violated the state statute, the court found the arrest valid because the carrying of the weapon violated a municipal ordinance dealing with the carrying of firearms. Thus, the carrying of the gun was a criminal offense, although the officers cited the wrong statute. Leaving aside the fact that Kalter was decided prior to the Supreme Court's decision in Knowles, the situation presented in Kalter is very different from this case because the court in Kalter was addressing only whether the officers' justification for their actions had to rely on the correct statute for the prohibited conduct, the carrying of the gun. In the present case, Casiano arrested defendant for driving with an expired license, which was not a criminal offense under any statute. In the absence of any statute under which that is an arrestable offense, Kalter is inapposite.

The government also maintains that United States v. Dhinsa, 171 F.3d 721 (2d Cir. 1999), supports its argument that the arrest and subsequent search in this case were lawful. Dhinsa, however, is also inapposite to the present case. In Dhinsa, officers stopped the defendant because he was in front of the apartment of a witness and stared at the officers. The officers stopped the defendant only after he committed a traffic violation, although they disavowed the traffic violation as a basis for the stop. Id. at 723. The officers subsequently searched the car. At trial, the government sought to introduce evidence about the stop, but it did not seek to introduce any evidence seized during the search of defendant's car. Because the government had stipulated that it was not going to use any evidence seized during the search, the court in Dhinsa addressed only the validity of the stop. Id. The court held that the stop was valid because officers had observed the defendant committing a traffic violation, giving them objective probable cause to justify the stop. The government's reliance on Dhinsa ignores the fact that the court in Dhinsa held that Knowles was inapplicable because the government in Dhinsa was not seeking to introduce any evidence seized during the search. Id. at 726. While the existence of probable cause in Dhinsa may have been sufficient to justify the stop, Knowles makes clear that the mere existence of probable cause to arrest is not sufficient to validate a search. Rather, the officer must act upon that probable cause and arrest the defendant on those grounds before the subsequent search can be characterized as a valid search incident to arrest. The government argues essentially that Casiano could have arrested the defendant for reckless driving and, under Whren, that is enough. But to justify a car search under Knowles, it is not enough that Casiano could have arrested the defendant for reckless driving; he must have exercised his option to do so. Here, he did not.

Just as the Fourth Amendment required that the evidence in Knowles be suppressed despite the existence of probable cause, the evidence here must be suppressed. Ignoring Knowles, the government maintains that "most importantly, excluding evidence in cases such as this one would certainly not accomplish the exclusionary rule's goal of deterring unlawful police conduct" (GB 21). In fact, the exact opposite is true. As the court stated in Miller, 205 F.3d at 1106:

We have no doubt that Officer Hill held his mistaken view of the law in good faith, but there is no good-faith exception to the exclusionary rule for police who do not act in accordance with governing law. See United States v. Gantt, 194 F.3d 987, 1006 (9th Cir. 1999). To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.

Indeed, Casiano was "not acting objectively reasonably" when he arrested defendant, and the exclusionary rule is directed at precisely such police conduct. Arizona v. Evans, 514 U.S. 1, 15-16 (1996). (6) To the extent that the government's position is that a person automatically loses all privacy rights when he engages in conduct creating probable cause to arrest, see GB at 21-22 (citing United States v. Cervantes, 19 F.3d 1151 (7th Cir. 1994)), that position was flatly rejected in Knowles where the officers had probable cause to arrest the defendant for speeding and the Court nonetheless concluded that the defendant's Fourth Amendment rights were violated by the search.

Furthermore, if anything, equity weighs on the side of suppression in this case. As Judge Trott stated in concurrence in United States v. McLaughlin, 170 F.3d at 894:

Unfortunately, in our search for clarity, we have now abandoned our constitutional mooring and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find. This state of affairs should cause us to reexamine our thinking.

Such an exploratory search is exactly what happened in the present case. Rather than expanding the search incident to arrest doctrine, this court should adhere to the Supreme Court's clearly stated rule that such a search is justified only after a lawful arrest.

Finally, and most fundamentally, the government's Fourth Amendment policy argument assumes the answer to the pivotal dispute in this case: whether the police conduct in this case was unlawful. Casiano lacked an objective justification to arrest defendant for driving with an expired license. Because the arrest was illegal, Casiano had no basis to search defendant's car. And just as it was impermissible for the officers in Knowles to search defendant's car where they had not arrested him for speeding, defendant's allegedly reckless driving in this case created no basis for the search because defendant was not arrested for that offense. Thus, Casiano's action in searching the car was unlawful, and the deterrent purpose of the exclusionary rule is well-served by suppressing the evidence in this case.

3. Casiano Lacked Probable Cause to Arrest defendant for Reckless Driving

Even if the Court were to conclude that it is permissible for the government to substitute an arrest that did not happen, i.e., an arrest for reckless driving, for the invalid arrest that did happen, an arrest for reckless driving would have been invalid because Casiano lacked probable cause to believe that defendant drove recklessly.

The district court found:

[T]he defendant, for whatever reason, forced Officer Casiano off of the road by veering into his lane, meaning the officer's lane, and literally forcing him out of that lane on to the side of the road in order to avoid, at a minimum, some kind of collision with the defendant's car. . . . After being forced off the road, once the officer got back on the highway--the freeway, excuse me, he observed the defendant. He couldn't catch up with him, but he observed him. He was a couple of car lengths ahead, and what he observed was the defendant driving fast, faster than the traffic was going, weaving in and out of lanes, and not putting on any hand signals whatsoever.

(MS 58-59). The district court concluded: "Based upon that entire factual scenario, which the court credits, there is no question in my mind that the officer had probable cause to stop the defendant at the time he did" (MS 59).

D.C. Code  40-712(b) provides: "Any person who drives any vehicle upon a highway carelessly and heedlessly in willful or wanton disregard of the rights and safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving." (Emphasis added). There are, therefore, two ways in which the statute can be violated. In this case, the government presented absolutely no evidence with regard to willful or wanton conduct by defendant, and the district court made no finding of willful or wanton conduct. In fact, the officer specifically testified that he did not know why defendant had changed lanes into his lane, and he acknowledged that there could have been something in the road or another car coming towards defendant that caused him to switch lanes (MS 22-23). And the district court made no factual finding regarding defendant's intent. Lacking any evidence that defendant operated his vehicle in a "willful or wanton" manner, the government has failed to establish probable cause with respect to the first prong of the reckless driving statute.

Nor has the government provided sufficient evidence to establish probable cause that defendant operated his vehicle "without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property." (Emphasis added). With respect to the district court's finding that defendant forced Casiano off the road, the district court specified that it did not know why defendant had switched lanes. The officer testified that he had no idea why defendant switched lanes and that it could have been to avoid another car or to avoid something in the road (MS 22-23). With no evidence regarding defendant's reason for switching lanes, the district court could not have concluded that defendant lacked "due care and circumspection" in operating his vehicle. Clearly if the defendant's car was forced into the officer's lane by another car and defendant was himself trying to avoid an accident, defendant's lane change is no evidence of a lack of due care and circumspection.

Nor does the district court's finding that defendant was moving faster than the speed of traffic, was weaving in and out of lanes, and was not using proper signals help the government's case for probable cause. Not only is the record again silent with respect to defendant's "due care and circumspection" or lack thereof, but there is absolutely no evidence or finding that defendant was operating his vehicle "at a speed or in a manner so as to endanger or be likely to endanger any person or property." Casiano testified that defendant was "moving faster than the traffic flow," but he did not know how quickly traffic was moving, and there was not even any evidence regarding the speed limit on that section of the freeway (MS 25). Most significantly, Casiano testified that he did not see defendant cut off any other cars, and he did not even see any other car putting on its brakes as a result of defendant's driving (MS 25-26). Indeed, but for the fortuitous circumstance that defendant took the same exit as Casiano, Casiano would not have bothered to stop defendant. If defendant had been driving so as to "endanger" others, Casiano would surely have been prepared to follow and stop defendant. Absent any evidence that defendant operated his vehicle "without due care and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property," there was no probable cause to stop or arrest defendant for reckless driving.

The government cites only two cases for its argument that there was probable cause to believe that defendant drove recklessly. One of the cases, Swailes v. District of Columbia, 219 A.2d 100 (D.C. 1966), was decided under the predecessor to Section 40-712(b). In that case, the jury acquitted defendant of driving recklessly, although the judge convicted him of speeding and driving while intoxicated. Because the jury had acquitted defendant of reckless driving, the court had nothing to say about the reckless driving statute beyond its holding that it was not double jeopardy to convict defendant of speeding and driving while intoxicated because the elements of those offenses were different than the elements of reckless driving.

The only case cited by the government decided under the statute in its present form is Kennedy v. District of Columbia, 601 A.2d 2 (D.C. 1991). In that case, the defendant conceded that he was speeding, that he went through a stop sign, and that he made illegal U-turns, and the court found that there was testimony that defendant was racing his car against his companion's car, and that he failed to stop for the police. Given all of this evidence and the conceded traffic violations, the court found that there was sufficient evidence to support the conviction. The facts of this case do not even remotely approach those in Kennedy. Indeed, there is not even any evidence in this case that the defendant was speeding. Thus, Casiano lacked probable cause to stop and arrest defendant for reckless driving.

CONCLUSION

The arrest of defendant was unlawful. Because that arrest was the sole basis upon which the search of the car ensued, the search of the car was also unlawful. For the above reasons, defendant respectfully requests that this court affirm the district court's suppression order.



Respectful submitted,





A. J. Kramer

Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH





I HEREBY CERTIFY that the foregoing brief for defendant-appellee, Ronnie xxxxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d). Actual number of words: 7,798.















A. J. KRAMER















CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief for Defendant-Appellee have been hand-delivered to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 6th day of February, 2001.









A. J. Kramer























I:\CALDWELL\WPDOCS\AJ\APPEALS\xxxxxxx\BRIEF

1. Transcripts are referenced as follows: "MS" refers to the April 13, 2000, hearing on the motion to suppress; "TR" refers to an in-court hearing on September 7, 2000, that was to be the start of the trial; "TC 1" and "TC 2" refer to the two phone conferences held on September 7, 2000, the first being at 2:30 p.m., and the second at 4:00 p.m.; and "PH' refers to the November 23, 1999, preliminary hearing, held in D.C. Superior Court. "GB" refers to the government's brief.

2. The government in this appeal has not challenged the district court's ruling regarding the Miranda violation. In addition, the district court ruled that a twenty-one page written statement signed by the defendant's girlfriend, which stated that she possessed the guns and that defendant did not, was admissible at trial as a statement against her penal interest. That ruling is likewise not at issue in this appeal.

3. D.C. Code 40-301(d-1) provides, in relevant part, that "[a]ny individual who operates a motor vehicle with a District of Columbia permit expired for not more than 90 days shall be subject to a civil fine of not more than $100 . . . and shall not be subject to the criminal penalties contained in subsection (d)."

4. The government had advised defendant before the court hearing, as soon as it learned of Casiano's mistake.

5. The government claims that the record is "somewhat unclear," but concedes for purposes of the appeal that, before arresting defendant, Casiano knew the license had expired on October 14, 1999 (GB 9 n.7). It is difficult to see how the record is unclear on this point. Casiano testified both at the preliminary hearing in Superior Court and the suppression hearing in district court that the dispatcher specifically told Casiano of the date of the suspension before he arrested defendant. In any event, the government concedes the issue.

6. The government cites to 1 Wayne R. LaFave, Search And Seizure, 1.4(d) at 110-111 (3d ed., 1996), as support for its position. The discussion in LaFave was written before the decision in Knowles. Moreover, the present case does not present the "complicated legal distinctions between offenses" that LaFave uses as the justification for that position.