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 (9^th 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 (5^th Cir. 1998). See also United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9^th 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 (6^th 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 (9^th 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 (8^th 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 (9^th 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 (7^th 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 6^th 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.