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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-CO-441

                          UNITED STATES, APPELLANT,

                                        v.

                          JAMES BUMPHUS, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                               (CF2-10498-15)

                      (Hon. Maribeth Raffinan, Trial Judge)

(Argued September 28, 2017                                 Decided May 21, 2020)

           Before FISHER, BECKWITH, and EASTERLY, Associate Judges.

        Chrisellen R. Kolb, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth
Trosman and Marina A. Torres, Assistant United States Attorneys, were on the
brief, for appellant.

      William Collins, Public Defender Service, with whom Samia Fam and
Shilpa Satoskar, Public Defender Service, were on the brief, for appellee.

      Opinion for the court by Associate Judge EASTERLY.

      Dissenting opinion by Associate Judge FISHER at page 24.
                                         2

         EASTERLY, Associate Judge: The government appeals an order in which the

trial court (1) determined that James Bumphus’s Fourth Amendment right to be

free from unreasonable searches and seizures was violated when the police seized

his car and then delayed several days without “any legitimate explanation, however

small” before searching the vehicle, and (2) suppressed the gun recovered in the

eventual search. We affirm the trial court’s suppression ruling.



                                    I.    Facts



         The government presented one witness at the suppression hearing: Sergeant

Jason Bagshaw, then a thirteen-year employee of the Metropolitan Police

Department (MPD).        Sergeant Bagshaw testified that, based on a tip from a

confidential informant that gave the police probable cause to believe Mr. Bumphus

had a handgun in his Lincoln Aviator, the police stopped Mr. Bumphus on a Friday

evening around 9:30 p.m. Mr. Bumphus had just parked his car when the police

pulled up behind him. After Mr. Bumphus got out of his car but before he was told

the reason for the stop, he threw his keys to an unidentified person who left the

scene.     Sergeant Bagshaw testified that the police immediately detained Mr.

Bumphus and placed him in handcuffs. Because the car was locked and Sergeant

Bagshaw testified he was “unable to get a Slim Jim” to open the car door without a
                                         3

key, Sergeant Bagshaw “opted to tow [the car]” and then search it. 1 The police

held Mr. Bumphus in handcuffs for at least two and a half hours, until the tow

truck arrived after midnight. As Mr. Bumphus’s car was being towed away and

after he had been released from handcuffs, Mr. Bumphus asked whether he could

remove some personal items—his child’s backpack and his wife’s purse, which

contained her cell phone—from the car. Sergeant Bagshaw told him he could not.



      For the next four days, from early Saturday morning until late in the day on

Tuesday, the police held the car at an MPD storage facility.          On Tuesday

afternoon, Sergeant Bagshaw requested and obtained a warrant to search the car; at

around 5:30 p.m. he opened the car with a “Slim Jim” and found a handgun.

Sergeant Bagshaw testified that he “had to apply” for a search warrant “since no

one would cooperate” with a search of the car on the scene. He further testified

that he could not get a warrant over the weekend because Superior Court judges

and Assistant United States Attorneys work on the weekends only “under

emergency circumstances,” and this was not an emergency because the car was in

a secure location. Although Sergeant Bagshaw understood that Superior Court

      1
         As discussed, see infra note 4, the police were authorized under the Fourth
Amendment under a special exception to the warrant requirement that allows law
enforcement officers to seize and search automobiles if they have probable cause
to believe they will discover contraband.
                                          4

judges and AUSAs work “on Mondays,” he agreed that he continued to “h[o]ld on

to the car without bothering to search it” on the Monday after the seizure. Despite

Mr. Bumphus’s specific request to remove some personal possessions from the car,

Sergeant Bagshaw testified that “[t]here was nothing [that] indicated” Mr.

Bumphus or his family had “an absolute necessity” to regain possession of any of

these items. Notwithstanding his knowledge that Mr. Bumphus’s wife’s purse

contained her cellphone, he also expressed the view that “there [was] nothing in

[the purse] that you cannot live without for four days.” Sergeant Bagshaw added

that while he eventually returned the items to the family, “[o]ne could argue that I

did not need to return them necessarily,” though he later admitted returning them

was the “right thing” to do.



      At a hearing on the suppression motion, the court observed that the police,

having seized the vehicle without a warrant, did not have authority to “indefinitely

retain possession of” it.      Focusing on the delay between seizing the car and

searching it, the court asked the government to explain why the delay was

reasonable in this case. The court indicated that it was skeptical that the reason for

the delay—the officer’s asserted belief that the family did not need their personal

possessions for a few days—constituted diligence and further observed that

Superior Court judges “do hear emergency matters” over the weekend “as they
                                          5

relate to arrests and search warrants.” Although the prosecutor agreed with the

latter observation, she defended the officer’s assessment that there was not an

“emergency”; she also suggested that the officer may have had a legitimate reason

for his inaction, noting, “I don’t know the officer’s case load and I don’t know the

[Emergency] Judge’s case load.” The court responded that it needed to “stick to

the record”: it found that the officer “did not say any of those things [about case

loads]” and that, even accepting a delay over the weekend, he “d[id] not state[,] [‘]I

thought about [getting a warrant]. But[] I got pulled [in]to a number of work

obligations that needed to get priority and that is the reason I did not go to get the

search warrant on that Monday.[’]”



      Ultimately the trial court orally ruled that, “in viewing all of the

circumstances here, I don’t think that the delay was reasonable based upon the

testimony of this officer.” The court emphasized that in this case, the officer “did

not . . . state that on or during that four[-]day period[] that he was looking into

other issues that related to the case; or that he was investigating something further;

or even that he had other work that was pulling him.” The court concluded that,

although “in some cases four days may be reasonable[,] . . . under these facts and

circumstances, I don’t think that it was reasonable.” Accordingly, the court stated

that it intended to grant Mr. Bumphus’s motion to suppress.
                                         6



      In its written order memorializing its ruling, the trial court determined that

the MPD had had probable cause to stop and search Mr. Bumphus’s vehicle, but

the delay between seizing and searching Mr. Bumphus’s car “violated [his] Fourth

Amendment right to be free of unreasonable searches and seizures,” even though

the search warrant eventually obtained by Sergeant Bagshaw was valid. 2 The court

made clear that it understood the Fourth Amendment imposes neither a

requirement that searches be conducted contemporaneously with seizures nor a

preset outer time limit on conducting constitutional searches. Rather, relying on

United States v. Johns, 469 U.S. 478 (1985), the court explained that any “delay

must be reasonable under the circumstances.”         After quoting from Sergeant

Bagshaw’s testimony, the court found that in Mr. Bumphus’s case, the record was

both “devoid of any indication of police diligence or necessity” for the delay in

searching the car, and “utterly lacking in any legitimate explanation, however

small,” for the delay in applying for a warrant—deficiencies the court deemed

      2
         The court separately found that the police violated Mr. Bumphus’s Fourth
Amendment rights by detaining him “in handcuffs[] for two and a half hours while
waiting for the tow truck to arrive . . . [in the] absence of testimony in the record
that such a delay was necessary to the investigation.” The court explained that,
because the police possessed probable cause to believe the car contained a firearm
before they detained Mr. Bumphus, the seizure and ultimate search of his car was
not a “fruit” of this Fourth Amendment violation and would not justify suppression
of the gun and ammunition recovered from the car.
                                           7

“crucial.” 3 Again quoting from Sergeant Bagshaw’s testimony, the court further

determined that the actions of the police demonstrated an “outright disregard for

the adverse effect such a delay might have on the possessory interests of the

vehicle’s owner.” 4 The court concluded these interests were “great”: “Not only

does the dispossession of the vehicle itself limit its owner’s ability to go about his

or her daily activities, the additional deprivation of the cell phone, purse, and

backpack—things many people would consider necessities of daily life—also

constitutes a serious invasion of an individual’s possessory interests.” “On this

record” and “[u]nder the[] specific circumstances” of this case, the trial court ruled



      3
          The court specifically noted:
              When asked on cross-examination why he did not apply for a search
              warrant on Saturday or Sunday, Sergeant Bagshaw responded that
              although he knew judges and AUSAs work on weekends for
              emergency circumstances, he did not believe this was “an emergency
              circumstance” because the car was at a secure facility. What is more,
              Sergeant Bagshaw’s explanation for not applying for the warrant on
              Monday indicated . . . the absence of any affirmative need for the
              delay (such as having to work on other higher-priority matters) . . . .
      4
          The court specifically noted:
              Sergeant Bagshaw testified that he knew the car contained personal
              effects, such as Mr. Bumphus’[s] wife’s purse, a cell phone, and a
              child’s backpack. When asked whether he thought those were things
              that the family might need, he answered, “No. There was nothing
              [that] indicated . . . that it was an absolute necessity.” Pressed further
              about why he did not believe the items were necessities, Sergeant
              Bagshaw responded, “There is nothing in there that you cannot live
              without for four days.”
                                          8

that “the detention of Mr. Bumphus’[s] vehicle was an unreasonable seizure under

the Fourth Amendment, and the fruits of that seizure must be suppressed.”



                             II.    Standard of Review



         In reviewing a trial court’s ruling on a suppression motion, “we accept the

trial court’s findings of fact unless they are clearly erroneous[,] and we review the

facts and reasonable inferences therefrom in the light most favorable to the

prevailing party.” Hooks v. United States, 208 A.3d 741, 745 (D.C. 2019). We

review the trial court’s legal conclusions, including whether the seizure was

unreasonable under the Fourth Amendment and whether exclusion was required,

de novo. Id.; see also Jones v. United States, 168 A.3d 703, 717 (D.C. 2017).



  III.     The Unreasonableness of the Extended Seizure and Delayed Search



         “The touchstone of the Fourth Amendment is reasonableness . . . .” Goines

v. United States, 964 A.2d 141, 144 (D.C. 2009) (internal quotation marks

omitted). Because government seizures may deprive a person of a significant

possessory interest, seizures that are reasonable at their inception may become

unreasonable over time. United States v. Jacobsen, 466 U.S. 109, 124 & n.25
                                          9

(1984). Determining whether an extended seizure is reasonable requires balancing

the government’s justification for the prolonged intrusion on an individual’s

possessory interests against the “nature and quality” of those interests. United

States v. Place, 462 U.S. 696, 703, 708–09 (1983) (holding extended seizure and

delayed search of initially lawfully seized luggage was unreasonable under the

circumstances, id. at 709–10); see Johns, 469 U.S. at 480–81, 486–88 (holding

extended seizure and delayed search of a lawfully seized truck and its cargo was

reasonable under the circumstances of that case but explicitly stating that it was not

foreclosing challenges to delayed searches in other cases).



      In its briefs to this court, the government argues against any sort of

balancing of interests under Place and Johns to assess the reasonableness of the

extended seizure and delayed search of Mr. Bumphus’s car.            Effectively, the

government asks this court to significantly expand the automobile exception to the

warrant requirement 5 and hold that—regardless of the nature of a person’s



      5
         See United States v. Ross, 456 U.S. 798, 809 (1982) (explaining that the
automobile exception to the warrant requirement permits a search of a vehicle if
there is probable cause to believe that it contains contraband); Carroll v. United
States, 267 U.S. 132, 149 (1925) (holding that an automobile may be searched and
seized without a warrant if the officer has probable cause to believe it contains
contraband); see also West v. United States, 100 A.3d 1076, 1084 (D.C. 2014)
(“[U]nder the so-called automobile exception to the Fourth Amendment warrant
                                                                   (continued . . .)
                                         10

possessory interests or of the government’s law-enforcement interests—there are

no objective, temporal limits on searches of cars if the police have probable cause

for the initial warrantless seizure.     This argument is inconsistent with the

government’s concession in the trial court that “the existence of probable cause [to

seize Mr. Bumphus’s car] alone would not justify [its] indefinite detention,” as

well as its similar concession in its brief before this court. This argument is also

irreconcilable with the Supreme Court’s decisions in Place and Johns.



      The government argues that Place has little if any bearing on this case

because, inter alia, it concerned a seizure of luggage which was conducted

pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and was based only on reasonable

articulable suspicion.     Although the nature of the seizure lessened the

government’s legitimate justification for its intrusion on the individual’s

possessory interest in Place, it does not render inapposite the guidance that opinion

gives generally about the balancing of interests when assessing whether an

extended seizure and delayed search is reasonable under the Fourth Amendment.




(. . . continued)
requirement, when police have probable cause to believe that a vehicle contains
contraband, they may search the vehicle without a warrant.”).
                                         11

      As for Johns, the government interprets it as endorsing the government’s

expansive authority to conduct warrantless seizures and searches of cars such that

an extended, three-day seizure and corresponding delay in searching a vehicle can

never amount to a Fourth Amendment violation. The government misreads Johns.

There, customs officers conducted a warrantless seizure of two trucks parked on a

remote Arizona airstrip fifty miles from the Mexican border that contained what

looked and smelled like bales of marijuana; the officers then held the trucks—that

the defendants were never seen driving and that were never identified as belonging

to any of the defendants—for three days before searching them. 469 U.S. at 480–

81. In its analysis, the Court did not, as the government argues, “actually h[o]ld

that a three-day delay [of a search of a car] does not offend the Fourth

Amendment” and is per se reasonable; rather, the Court explained that the

extended seizure and delayed search was not “necessarily unreasonable” based on

the facts in that case, noting in particular that no interest protected by the Fourth

Amendment had “even [been] alleged.” Id. at 487. The Court likewise did not, as

the government argues, accord “controlling significance” to “the broad sweep of

the automobile exception,” and hold “[i]n typical circumstances, once police have

probable cause to believe that a vehicle contains evidence of crime, the delay

between seizing and searching the vehicle ‘is immaterial’ for Fourth Amendment

purposes.” To the contrary, although the Court “beg[an]” its “analysis” with a
                                         12

discussion of the automobile exception to the warrant requirement under Ross, id.

at 483, holding that it did not require a warrantless search to be conducted

“immediately” after the seizure of a vehicle, id. at 484, the Court concluded its

analysis by cautioning that it was “not suggest[ing] that police officers may

indefinitely retain possession of a vehicle and its contents before they complete a

vehicle search,” id. at 487 (emphasis added). Further, the Court acknowledged

that, in another case, “the owner of a vehicle or its contents” might be able “to

prove that delay in the completion of a vehicle search was unreasonable because it

adversely affected a privacy or possessory interest.” Id.



      This court, until now, has not endorsed the balancing test articulated in

Place and applied in Johns to evaluate a constitutional challenge to the delay

between a seizure and search. 6 But federal courts have done so, and in a number of



      6
         Our dissenting colleague notes that we are “creating new law,” as if that
alone were some basis for disagreement with the majority opinion. Post at 25. In
any event, it is the government that is asking us to reverse and to hold for the first
time that a delayed search after a prolonged seizure does not violate the Fourth
Amendment. We conclude that Johns and Place bar us from reaching such a
decision. Although neither of the Supreme Court’s decisions, given their facts,
“dictate[s]” our holding, id. at 24, they articulated (some decades ago) the legal
framework to analyze the Fourth Amendment question. It is our dissenting
colleague who fails to explain either why these decisions do not support this legal
framework or why, applying this framework, the law-enforcement conduct in this
case was constitutionally reasonable in light of the trial court’s factual findings.
                                         13

instances they have concluded suppression was warranted. 7 The government looks

to federal appellate decisions reaching the opposite conclusion. But in holding that

suppression was not warranted, those courts do not reject a balancing of interests in

line with Johns and Place; rather, examining different facts, they simply conclude

that the balance is in the government’s favor. 8 These and other decisions cited by

      7
          See, e.g., United States v. Pratt, 915 F.3d 266, 272 (4th Cir. 2019)
(affirming suppression ruling based on an unreasonable delay between seizure and
search where trial court balanced need for delay against possessory interests and
found, inter alia, that “the government ha[d] no persuasive justification for the
delay in obtaining a search warrant”); United States v. Mitchell, 565 F.3d 1347,
1351–52 (11th Cir. 2009) (affirming suppression based on unreasonable delay
between seizure and search where the officer “didn’t see any urgency” in executing
the search and the defendant’s interests in his hard drive were significant despite
the presence of child pornography on the hard drive); United States v. Fife, 356 F.
Supp. 3d 790, 800 (N.D. Iowa 2019) (granting motion to suppress based on delay
between seizure and search where the “[g]overnment proffered no reason for the
delay in obtaining a warrant” and the officer responsible “performed no additional
work on the case for months, simply because he did not believe the matter was
time sensitive”); United States v. Uu, 293 F. Supp. 3d 1209, 1214–16 & n.8 (D.
Hawaii 2017) (granting motion to suppress based on delay between seizure and
search where government delay was mostly “unexcused and unexplained” and was
outweighed by defendant’s possessory interest in a backpack containing
“contraband along with a pair of binoculars”); see also State v. Rosenbaum, 826
S.E.2d 18, 25–28 (Ga. 2019) (affirming suppression based in part on unreasonable
delay between search and seizure where “the State made no showing of particular
complexity, difficulty in drafting the warrant, or competing demands on a limited
number of officers”).
      8
         See United States v. Burgard, 675 F.3d 1029, 1033–35 (7th Cir. 2012)
(noting that courts must employ balancing tests to assess the reasonableness of
delay under the Fourth Amendment, but a six-day delay in searching a cell phone
was reasonable where officer, who was not the seizing officer, “wanted to consult
with the AUSA,” had his attention “diverted by a more serious robbery case,” and
was “careful” and “attentive,” id. at 1034); United States v. Gastiaburo, 16 F.3d
                                                                   (continued . . .)
                                          14

the government cannot reasonably be read to support the government’s

interpretation of Johns or its broader assertion that any delay in the search of a car

seized based on probable cause is constitutionally insignificant. 9



      Balancing the interests in this case, we look first to the government’s

justification for the actions of the police. There is no dispute that the police had

probable cause to seize Mr. Bumphus’s car. But viewing the evidence in the light

most favorable to the trial court’s ruling, we see no legitimate reason for the delay



(. . . continued)
582, 586–87 (4th Cir. 1994) (concluding no need for a warrant where police
impounded arrestee’s car after discovering drugs and drug paraphernalia pursuant
to a consent search, subsequently developed probable cause to search the car again
thirty-eight days later, and searched the car on the same day they acquired probable
cause); United States v. Howard, 991 F.2d 195, 202 (5th Cir. 1993) (affirming the
trial court’s ruling “that the two day delay was not unreasonable under Johns”
without detailing any facts about the justification for the delay or the owner’s
possessory interests in the car or its contents).
      9
          For example, the government cites United States v. Donahue, 764 F.3d
293, 300 (3d Cir. 2014), for the proposition that “in typical circumstances, once
police have probable cause to believe that a vehicle contains evidence of crime, the
delay between seizing and searching the vehicle ‘is immaterial’ for Fourth
Amendment purposes.” But Donahue was a government appeal from a trial court
determination that law enforcement lacked probable cause to conduct a warrantless
search of a car. Id. at 297–98. To the extent it addressed the propriety of the
extended seizure and delayed search, it relied on distinct facts, involving the
transfer of custody of the car from one law enforcement agency (the U.S. Marshals
Service, which initially seized and promptly searched the car of a fugitive who
failed to report to prison) to another (the FBI, which conducted a second search
after acquiring custody of the car). Id. at 296–97, 301.
                                         15

between that seizure and the search four days later. To begin, Sergeant Bagshaw’s

testimony that he was required to get a search warrant because no one would

cooperate at the scene is incorrect. For almost a century it has been clear that the

police have the right and ability to search a vehicle, without consent or a warrant,

based on probable cause.       See supra note 4.      Sergeant Bagshaw’s asserted

understanding that he could not get a warrant on the weekend because there was no

qualifying “emergency” is likewise incorrect: as the trial court stated, judges in the

Superior Court work on weekends and “hear emergency matters as they relate to

arrests and search warrants.” Lastly, Sergeant Bagshaw agreed without reservation

or explanation that he continued to “h[o]ld on to the car without bothering to

search it” on the Monday—a business day—after the weekend.



      Having heard this testimony, the trial court found that the record was

“devoid of any indication of police diligence or necessity” for the delay. Further,

the court made a factual finding that the police acted with “outright disregard for

the adverse effect [their] delay” might have on Mr. Bumphus. We must defer to

the trial court’s factual findings unless they are clearly erroneous. The government

has not challenged the court’s ruling on this basis, and we would reject such a

challenge if it had. The government argues instead that the court “placed undue

weight on Sergeant Bagshaw’s inability to explain the reasons for the delay.” We
                                         16

cannot fault the trial court for considering the only evidence the government

presented. To the extent the government argues that it did not have an adequate

opportunity to present evidence to the trial court to justify the delay, we are

unpersuaded. Mr. Bumphus raised the issue of the extended seizure and delayed

search in response to Sergeant Bagshaw’s testimony at the suppression hearing.

He filed a supplemental suppression motion the day after Sergeant Bagshaw

testified, and the government was given an opportunity to—and did—file a

supplemental brief in opposition to Mr. Bumphus’s supplemental motion. The

court then heard argument from the parties. The government did not request that it

be permitted to present additional evidence to explain the delay between the

seizure and the search or to recall Sergeant Bagshaw so that he could augment his

explanation for his actions.



      Shifting our focus to Mr. Bumphus’s possessory interests, we agree with the

trial court that they were “great.” As the court found, his car was an essential

means of “go[ing] about . . . daily activities”; the “additional deprivation of” items

within the car—his wife’s purse and cell phone and his child’s backpack—“also

constitutes a serious invasion of an individual’s possessory interests.”          The

government does not challenge the strength of Mr. Bumphus’s possessory interests

directly. Instead, the government argues that the items seized from Mr. Bumphus
                                         17

were inferably unimportant to him based on his actions—both his “obstruct[ion]”

of an immediate search by refusing to give consent and his asserted failure to

request their return in the four days between their seizure and the search. First,

because the police had authority pursuant to United States v. Ross, 456 U.S. 798,

825 (1982), to search the car without a warrant, Mr. Bumphus’s refusal to consent

did not “obstruct” the police. Particularly when we examine the record in the light

most favorable to the trial court’s ruling, we see no inconsistency between (a) Mr.

Bumphus’s decision to stand on his rights and refuse to consent to a search of his

car, and (b) his desire to regain access to his car and the possessions within it in a

timely manner after the police took actions legally available to them. As for the

government’s assertion that Mr. Bumphus did not request that his car be returned

to him in the days that followed the seizure, the government did not present

evidence on this subject at the hearing. The only evidence in the record is that Mr.

Bumphus did ask the police to allow him to retrieve the purse (containing the cell

phone) and the backpack from the car just before the police had his car towed. In

any event, such a failure would have only potentially lessened his possessory

interest in his car and the items contained therein; we cannot say it would have

compelled a different balancing of interests. See, e.g., United States v. Fife, 356 F.

Supp. 3d 790, 803 (N.D. Iowa 2019); United States v. Uu, 293 F. Supp. 3d 1209,

1215 (D. Hawaii 2017).
                                        18



      Alternatively, the government argues that a four-day deprivation of these

items is not unreasonable under Johns. As explained above, however, we do not

read Johns to insulate any vehicle seizure of just a few days’ length from

constitutional challenge. Nor do we believe the manifest possessory interests here

may be reasonably compared to the absence of possessory interests in the trucks of

unknown ownership carrying bales of marijuana and parked at a remote airstrip in

Johns. See 469 U.S. at 487.



      The trial court’s decision was narrowly tailored to the facts of this case. It

recognized that “there are surely legitimate reasons, whether or not related to [a]

particular case, that an officer might require more time to prepare and submit a

search warrant affidavit.” But where the government’s only witness gave no such

reasons for the four-day delay between the seizure and the search, and where the

items seized from Mr. Bumphus had obvious import to his daily life, it did not err

in concluding that the police actions were unreasonable and that Mr. Bumphus’s

rights under the Fourth Amendment had been violated.
                                         19

                IV.    The Application of the Exclusionary Rule



      We next consider the government’s challenge to the trial court’s ruling that

the gun and ammunition recovered from Mr. Bumphus’s car should be suppressed.

Preliminarily, there is some question whether this argument is properly before us.

The government overlooks the procedural history of this case when it asserts that

the trial court, having found a Fourth Amendment violation, granted Mr.

Bumphus’s motion to suppress “reflexively.” The government did not argue—

either in its opposition to Mr. Bumphus’s motion to suppress or in its opposition to

his supplemental motion filed after the suppression hearing—that, if the court

found a Fourth Amendment violation, it should nonetheless determine that

application of the exclusionary rule was not warranted. Without argument to that

effect and reasonably interpreting the point as conceded, the trial court concluded

in the order on appeal that the exclusionary rule applied.         The government

subsequently clarified that it was not making such a concession, by filing a motion

for reconsideration. But the government did not file this motion until after it filed

its Notice of Appeal. The trial court’s subsequent order analyzing and rejecting
                                          20

this argument is thus not part of our record. 10 See, e.g., In re K.G., 178 A.3d 1213,

1216 n.10 (D.C. 2018). Even so, Mr. Bumphus included the trial court’s order

denying the government’s motion for reconsideration in his supplemental appendix

to this court, and the government did not move to strike it. Accordingly, assisted

by the reasoning in the trial court’s putative ruling, we address this issue.



      “It has long been the law that evidence collected in violation of the Fourth

Amendment is considered ‘fruit of the poisonous tree’ and generally may not be

used by the government to prove a defendant’s guilt.” Hooks, 208 A.3d at 750

(quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)). The animating

principle of the exclusionary rule is “to deter future Fourth Amendment

violations.” Davis v. United States, 564 U.S. 229, 236–37 (2011); see also Jones,

168 A.3d at 717 (“[T]he exclusionary rule . . . is designed to safeguard Fourth

Amendment rights generally through its deterrent effect.” (citation and internal

quotation marks omitted)). The government argues, however, that the rule should

not apply to this case because Sergeant Bagshaw acted in good faith and exclusion

will have no deterrent effect. We are unpersuaded by the government’s argument.



      10
            Additionally, the trial court’s order is only advisory, given that
jurisdiction over the case had transferred to this court. See Bell v. United States,
676 A.2d 37, 41 (D.C. 1996); Smith v. Pollin, 194 F.2d 349, 350 (D.C. Cir. 1952).
                                         21

      The government argues that Supreme Court cases holding that “evidence

obtained in good faith and reasonable reliance upon a warrant need not be

suppressed, even if the warrant is later determined to be unsupported by probable

cause or otherwise defective,” “demonstrate” that “exclusion of the gun and

ammunition [seized] in this case was unwarranted.” There are two problems with

this argument. First, the trial court did not find the police acted in good faith. To

the contrary, unable to “glean even the slightest shred of diligence from Sergeant

Bagshaw’s testimony,” the trial court found that he had acted with “outright

disregard” for Mr. Bumphus’s rights. Effectively, the court determined that the

officer gratuitously waited four days to seek a warrant giving him authority he

already had to search Mr. Bumphus’s car, and in so doing acted with gross

negligence (if not deliberately) to withhold important personal objects—the car

and its contents—from Mr. Bumphus. 11 See Davis, 564 U.S. at 238 (reaffirming

      11
          The government implicitly challenges the trial court’s factual findings by
asserting that Sergeant Bagshaw sought a warrant to search Mr. Bumphus’s vehicle
“in the exercise of caution”; but the government’s assertion (1) has no support in
the record, see supra note 3, and (2) is unhelpful because the record is silent as to
why he could not have sought a warrant “in the exercise of caution” much more
quickly. Indeed, if the desire to seek a warrant is to ensure that the police have
lawful authority to hold and search a car, then time is of the essence. See Burgard,
675 F.3d at 1033 (explaining that “unnecessary delays in seeking warrants
undermine the criminal justice process . . . [by] prevent[ing] the judiciary from
promptly evaluating and correcting improper seizures”); see also id. at 1035
(“After seizing an item without a warrant, an officer must make it a priority to
secure a search warrant that complies with the Fourth Amendment.”).
                                            22

that “[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard

for Fourth Amendment rights, the deterrent value of exclusion is strong” and

exclusion is appropriate (internal quotation marks omitted)); see also United States

v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012) (explaining that “[w]hen police

neglect to seek a warrant without any good explanation for the delay, it appears

that the state is indifferent to searching the item and the intrusion on an

individual’s possessory interest is less likely to be justifiable”). 12

       Second, the existence of a later-acquired warrant is factually and legally

immaterial in our assessment of the asserted good faith of law enforcement in this

case. When Sergeant Bagshaw extended the seizure of Mr. Bumphus’s car and

delayed its search from Friday evening to Tuesday when he finally applied for a

warrant, he did not rely on this warrant, which did not yet exist. Nor did the

       12
          Citing Burgard, the government argues that “[o]ther courts have declined
to suppress in analogous circumstances where ‘the unreasonableness of a delay is a
very close call, and an officer could not be charged with knowledge that the delay
violated the law.’” But Burgard is factually distinguishable. The Seventh Circuit
stressed in that case that the detective’s delay in seeking a warrant “was not the
result of complete abdication of his work or failure to see any urgency”; rather he
“wanted to be sure he had all of the information from the seizing officer and he
wanted to consult with the AUSA, all the while attending to his other law
enforcement duties,” 675 F.3d at 1034 (internal quotation marks omitted), which
included an intervening, “more pressing” armed robbery investigation, id. at 1031.
The government has not cited to us any court decision applying “the good faith
exception in a situation remotely like the present one,” Jones, 168 A.3d at 720,
where the police gave no credited explanation for the extended seizure and delayed
search.
                                         23

magistrate judge to whom he ultimately submitted the warrant application

implicitly approve the preceding delay by issuing the warrant. As the trial court

found, “the magistrate judge who issued the warrant had no information regarding

the necessity of the delay or Sergeant Bagshaw’s lack of diligence.” Further, this

court has held that a later-obtained warrant generally “d[oes] not operate to

attenuate [an] illegality” preceding its issuance. Evans v. United States, 122 A.3d

876, 886 (D.C. 2015). 13

      Alternatively, citing Hudson v. Michigan, 547 U.S. 586 (2006), the

government challenges the causal relationship between the Fourth Amendment

violation in this case and the discovery of the evidence, and argues that

suppression is not warranted because the “delay in seeking a warrant had no effect




      13
           The government acknowledges Evans in a footnote of its reply brief, but
asserts it is no longer good law because it relied in part on this court’s decision in
Smith v. United States, 111 A.3d 1 (D.C. 2014), vacated on reh’g, 2015 WL
5456143 (D.C. Sept. 9, 2015). The fate of Smith, which had excluded evidence
following a Terry stop based on an officer’s mistake of law, 111 A.3d at 9, and was
vacated following the Supreme Court’s decision in Heien v. North Carolina, 135 S.
Ct. 530 (2014), Smith v. United States, No. 12-CM-1742, 2015 WL 5456143, at *1
(D.C. Sept. 9, 2015), has no bearing on this holding of Evans. Indeed, Evans itself
forecloses the government’s argument: we acknowledged that the government had
sought rehearing in Smith and explained that the government had argued that Heien
undermined Smith’s holding regarding the lawfulness of the traffic stop only and
had not challenged the court’s separate holding that a later-acquired warrant did
not “purge the taint” of an earlier Fourth Amendment violation. Evans, 122 A.3d
at 886 & n.4.
                                         24

whatsoever on the ultimate discovery of the evidence.” 14 Hudson is inapposite. In

that case, the Court found that the violation of the knock-and-announce

requirement in the execution of a valid warrant “was not a but-for cause of

obtaining the evidence.” Id. at 592 (emphasizing that the police were acting on an

already-issued warrant based on probable cause, id. at 588, 600–01). Here, the

extended warrantless seizure was an integral part of the but-for causal chain of

events leading to the recovery of the gun and ammunition in this case and itself

caused the violation of Mr. Bumphus’s Fourth Amendment possessory interests in

the car and the personal items it contained. 15 See supra Part III. And, as explained

above, the fact that Sergeant Bagshaw subsequently conducted a delayed search

under the guise of an unnecessary warrant did not attenuate the taint of the earlier

Fourth Amendment violation.




      14
           Our dissenting colleague makes a similar causation argument. See post at
25–26.
      15
          Had the police released the car on day two, they could not have conducted
the search on day four. See Hudson, 547 U.S. at 592 (explaining that but-for cause
is in essence “causation in the logical sense” (internal quotation marks omitted));
cf. United States v. Mosley, 454 F.3d 249, 255–56 (3rd Cir. 2006) (agreeing that
“[t]he temporal sequence of events makes all the difference,” id. at 256, when
assessing causation for the purposes of the exclusionary rule). By contrast, the trial
court determined that the unreasonable detention of Mr. Bumphus, which also
violated the Fourth Amendment, did not “result” in the search of the vehicle and
did not warrant suppression of the weapon. See supra note 2.
                                         25

      Because we conclude that “the circumstances of this case are precisely those

we want to deter and amply justify the application of the exclusionary rule,”

Hooks, 208 A.3d at 750, we uphold the trial court’s suppression ruling in this case.



      For the reasons stated above, the judgment of the Superior Court is affirmed.



                                                                 So ordered.


      FISHER, Associate Judge, dissenting: The police did not violate the Fourth

Amendment and, even if they did, suppression of the handgun is not a proper use

of the exclusionary rule.



      The Supreme Court’s decision in United States v. Johns, 469 U.S. 478

(1985), does not dictate, or even approve, the result reached here. The Court held

that the warrantless search of certain packages was not unreasonable “merely

because it occurred three days after the packages were unloaded from the pickup

trucks.” Id. at 483. The Court therefore reversed a decision of the Ninth Circuit

which had held that the delay after the initial seizure made the subsequent search

unreasonable.   Id. at 480.    Musing generally about delay, the Court did not

“foreclose the possibility that the owner of a vehicle or its contents might attempt

to prove that delay in the completion of a vehicle search was unreasonable because
                                         26

it adversely affected a privacy or possessory interest.”      Id. at 487 (emphasis

added). That dictum is a far cry from endorsing suppression in the circumstances

presented here. Nor does United States v. Place, 462 U.S. 696 (1983), support that

result. See id. at 709 (“The length of the detention of respondent’s luggage alone

precludes the conclusion that the seizure was reasonable in the absence of probable

cause.”).   Thus the majority acknowledges that it is creating new law for the

District of Columbia. Ante at 12 (“This court, until now, has not endorsed the

balancing test articulated in Place and applied in Johns to evaluate a constitutional

challenge to the delay between a seizure and search”). That new law, of course, is

being declared long after this search took place.



      Even if the police should have obtained a search warrant more quickly,

suppression is not a proper remedy for their failure to do so.        In Hudson v.

Michigan, 547 U.S. 586 (2006), the Supreme Court focused on the amount of time

that elapsed before the execution of a search warrant. In that case the police

committed a knock-and-announce violation by entering the house too quickly. The

Court held that suppression was not justified. “Whether that preliminary misstep

had occurred or not, the police would have executed the warrant they had obtained,

and would have discovered the gun and drugs inside the house.” Id. at 592. “Since
                                         27

the interests that were violated in this case have nothing to do with the seizure of

the evidence, the exclusionary rule is inapplicable.” Id. at 594.



      As the government accurately points out, “the delay in seeking the

warrant . . . had no effect whatsoever on the ultimate discovery of the evidence.

Had Sergeant Bagshaw applied for the warrant in a more timely fashion, the search

would have uncovered the same evidence.” I add that, had the sergeant conducted

a warrantless search on the scene, as the majority implies he should have done, the

same evidence would have been recovered.                  The police undoubtedly

inconvenienced appellant’s wife and daughter, but here, as in Hudson, “the

interests that were violated . . . have nothing to do with the seizure of the

evidence.” We should reverse the order of suppression.
