                                                    Filed:   June 12, 2014

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                 No. 13-4049
                            (1:12-cr-00093-CCE-1)


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

DAWUD ALI SAAFIR,

                 Defendant – Appellant.



                                 O R D E R


           The Court amends its opinion filed June 11, 2014, as

follows:

           On   page   4,    third   paragraph,   line   3   –-   the   word

“opened” is corrected to read “unopened.”

                                          For the Court – By Direction


                                              /s/ Patricia S. Connor
                                                        Clerk
                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 13-4049


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DAWUD ALI SAAFIR,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00093-CCE-1)


Argued:   January 30, 2014                      Decided:     June 11, 2014


Before MOTZ and      THACKER,    Circuit     Judges,   and   DAVIS,   Senior
Circuit Judge.


Reversed, vacated, and remanded by published per curiam opinion.


ARGUED: John Archibald Dusenbury, Jr., OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant.
Michael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.     ON BRIEF: Louis C.
Allen, Federal Public Defender,    OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant.      Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
PER CURIAM:

       The   Fourth       Amendment          to    the    United            States    Constitution

protects     individuals       from       unreasonable              searches         and    seizures:

“The right of the people to be secure . . . against unreasonable

searches and seizures, shall not be violated[.]” U.S. Const.

amend. IV. A search can be “unreasonable” in a variety of ways,

but,   quintessentially,            a    search          is    “unreasonable”              if   it   is

unsupported by probable cause, that is, where the known facts

and    circumstances        are     insufficient               to    warrant         a     person    of

reasonable prudence in the belief that contraband or evidence of

a crime will be found. Ornelas v. United States, 517 U.S. 690,

696 (1996).

       Appellant     Dawud        Ali    Saafir        entered          a    conditional        guilty

plea to one count of being a felon in possession of a firearm.

18 U.S.C. §§ 922(g)(1), 924(a)(2). A law enforcement officer

located      the    firearm       after       conducting            a       search    of     Saafir’s

vehicle during a traffic stop. Saafir challenged the legality of

the    search,      but     the     district           court        denied      his        motion    to

suppress.

       We    hold    that     the       law       enforcement           officer’s          search    of

Saafir’s car was unreasonable within the meaning of the Fourth

Amendment because the probable cause on which the search was

based was tainted: Saafir’s incriminatory statements that gave

rise   to    probable       cause       to    search          the   car       were       elicited    in

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response to the officer’s manifestly false assertion that he had

probable cause to search the car and his suggestion that, with

or without Saafir’s consent, he would proceed with the search.

     The    facts    are   undisputed.      A    Durham,   North   Carolina      law

enforcement officer pulled over Saafir in a residential area for

speeding and driving a vehicle with excessively tinted windows.

The officer requested Saafir’s license and registration; Saafir

produced a valid state identification card, but told the officer

that his license had been revoked. The officer ran Saafir’s name

through     the     Durham     Police    Department’s       databases,         which

confirmed that Saafir’s license had been revoked. Based on the

information retrieved in the check, the officer, in his words,

“determined       that   Mr.   Saafir    was      considered     an    armed    and

dangerous     person,      a   validated        gang   member,     a   S.T.A.R.S.

offender, that he flees,” and had an order to stay away from any

property of the Durham Public Housing Authority. J.A. 45, 63.

The officer described S.T.A.R.S. offenders as ex-offenders who

are on their “last chance”: “if they are caught selling drugs,

caught with guns, caught committing any more crimes, . . . the

state is not going to tolerate it any longer, and . . . they

will be prosecuted to the maximum [extent of the law], whether .

. . at the state . . . or federal level.” J.A. 46. After running

the check, the officer radioed for back-up.



                                        3
        Although    he   did     not   write     a   ticket   for     speeding,      the

officer wrote warning tickets for driving with a revoked license

and tinted windows. After instructing Saafir to exit the car so

that he could explain the tickets, the officer noticed a hip

flask    commonly    used      to    carry   alcohol    in    the   pocket      of   the

driver-side door. (The officer never confirmed that there was

alcohol or anything else in the flask.) Once Saafir exited the

car, the officer explained the warning tickets to Saafir and

returned his identification documents.

     The officer then told Saafir that there had been shootings

and violence in the area, and he asked if he could frisk Saafir.

Saafir consented. The frisk revealed nothing. By this point, a

second uniformed officer in a marked police vehicle had arrived.

The first officer continued his investigation by asking if he

could search Saafir’s car. Saafir refused to consent, explaining

that it was not his car. The officer persisted, stating that a

temporary user of the car could consent to a search, but Saafir

demurred. As the district court found, the officer “basically

tried to talk him into letting him search the car.” J.A. 155.

     A North Carolina statute makes it an infraction for any

person    to    “possess    an      alcoholic    beverage     other    than     in   the

unopened       manufacturer’s       original     container.”    N.C.     Gen.    Stat.

§ 20-138.7(a1). Apparently relying on this statute, and faced

with Saafir’s refusal to consent to a search of the vehicle, the

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officer instructed Saafir that he had probable cause to search

the car based on the presence of the hip flask. Upon hearing

this, Saafir “bowed his head and gave out a sigh,” J.A. 63, but

did not express consent.

       Having declared his authority and his intent to search the

car, the officers asked Saafir if there was anything they should

know     about    inside;    Saafir    responded        that    there         “might”   be

something. When pressed for clarification, Saafir responded that

there “might” be a gun in the vehicle, and that it “might” be

under the seat. J.A. 156. The officers searched the car, but did

not find a weapon; they located, however, a small amount of

“aged,    dried-up      marijuana”     in   the    pocket      of   the       driver-side

door. J.A. 54. Neither officer touched the flask. There was no

evidence that Saafir had been drinking - there was no odor of

alcohol on Saafir or in the car. Upon request, Saafir provided

the key to the locked glove compartment, where the pistol was

found.

       A grand jury indicted Saafir on one count of violating 18

U.S.C.     §§    922(g)(1)    and     924(a)(2),        for    being      a    felon    in

possession of a firearm. Saafir moved to suppress the gun and

his statements relating to the gun. The district court denied

the motion, finding, among other things, that Saafir’s admission

that   there      “might”    be   a   gun   in    the   car    gave     the     officers

probable        cause   to   search     the      vehicle.      Saafir         entered   a

                                            5
conditional guilty plea and the district court sentenced him to

23    months     in    custody      and    a     three-year       term     of   supervised

release. Saafir timely appealed the denial of the motion.

       Saafir        raises     several        arguments     on      appeal,       but     the

contention on which we focus is that the district court erred

when it failed to suppress the evidence obtained through the

search of the car because the officer was only able to obtain

probable cause to conduct the search – Saafir’s admission that

there       “might”    be     something     in      the   vehicle     –    after    falsely

asserting that he had probable cause to search Saafir’s car. We

agree. We hold that the officer’s assertion that the existence

of the hip flask provided him with probable cause to search the

car was an independent, antecedent threat to violate the Fourth

Amendment that ultimately fatally taints the search of the car

and the seizure of the gun. We note that because this contention

was not precisely raised below, we ordered supplemental briefing

and    we    thank    counsel      for    their     submissions.      We    exercise       our

discretion to consider the contention because a litigant may

make    any    argument       on   appeal      in    support    of    a    federal       claim

properly       made     below.      Citizens        United     v.    Federal       Election

Commission, 558 U.S. 310, 330-31 (2010). While we review the

district court’s factual findings for clear error, we review its

legal conclusions de novo. United States v. Digiovanni, 650 F.3d

498, 506 (4th Cir. 2011).

                                               6
     Importantly,          the    Government   concedes    that      the   officer’s

assertion that the hip flask gave him probable cause to search

the car was a misstatement of the law. We agree. Probable cause

to search exists “where the known facts and circumstances are

sufficient to warrant a [person] of reasonable prudence in the

belief that contraband or evidence of a crime will be found.”

Ornelas, 517 U.S. at 696. The officer admitted that he never

checked that the flask had alcohol (or anything else) in it. And

he admitted that there was no other evidence suggesting that

Saafir   was       under    the    influence   of     alcohol   or    intoxicated.

Accordingly, there was no probable cause to search the car for

any crime related to alcohol in a flask, and certainly not for

any other crime.

     Accordingly, we conclude that the officer’s false assertion

of his authority to search the car irreparably tainted Saafir’s

incriminatory statements and the ensuing search of the car. A

search or seizure is unreasonable and therefore unconstitutional

if it is premised on a law enforcement officer’s misstatement of

his or her authority; this principle stretches at least as far

back as Bumper v. North Carolina, 391 U.S. 543, 547-50 (1968),

in which the Supreme Court invalidated a defendant’s consent to

the search of her home after the officer stated falsely that he

possessed      a    warrant.      Here,   we   have    Saafir’s      incriminatory

statements giving rise to probable cause to search the car, not

                                          7
his express consent to a search of the vehicle. The distinction

matters not. The principle that animates these cases is simple:

a search is unreasonable -– and so violates the Fourth Amendment

–- if its justification is grounded in officers “engaging or

threatening         to    engage       in    conduct        that     violates      the    Fourth

Amendment.”         Kentucky     v.     King,     131       S.   Ct.     1849,   1858    (2011).

Thus,    just        as     an        officer         may     not      manufacture       exigent

circumstances to justify a warrantless search by means that run

afoul    of     the       Fourth       Amendment,           id.,    an    officer       may    not

manufacture probable cause by unlawful means, including by way

of a false claim of legal authority that constitutes a threat to

violate the Fourth Amendment. See United States v. Guzman, 739

F.3d 241, 247 (5th Cir. 2014). “An inadmissible statement cannot

constitute      probable         cause       to       support       an    otherwise      illegal

search. [The officer’s] statement, that he was ‘going to search

the car,’ could constitute a false claim of lawful authority

affecting the validity of” the defendant’s subsequent statement

that    he    had    a    gun    in    the   car.       Id.      (remanding      the    case   for

further fact-finding).

       The Government concedes that a law enforcement officer may

not    misstate      his    lawful       authority,           and   it    concedes      that   the

officer misstated his authority in this case, but it maintains

that the misstatement was irrelevant because Saafir’s admissions



                                                  8
giving rise to probable cause were not a direct product of the

officer’s flexing of his authority.

       The    record   overwhelmingly              demonstrates        otherwise.      Saafir

refused      to   consent    to    a    search        of   the   car     multiple      times.

Instead of consenting (as he had to the pat-down), he stoutly

resisted the officer’s efforts to, as the district court found,

“talk him into letting him search the car.” J.A. 155. It was

only after the officer asserted that a search of the car was

inevitable (by declaring that he had probable cause to do so)

and continued to press him with questions about the contents of

the car that Saafir admitted the presence of the gun in the car.

The    causal     connection       is        clear:    Saafir         made   incriminating

statements shortly after the officer’s false assertion of the

existence of probable cause to search the car. Here, as a matter

of law, probable cause for a warrantless search of the car was

rooted directly in the elicitation of incriminating statements

made    in    response      to    the    officer’s         dishonest,        reckless,    or

objectively       unreasonable         asserted       belief     in    the   existence     of

probable cause. Cf. United States v. Leon, 468 U.S. 897, 925

(1984).

       Saafir’s     incriminatory            statements      could       not,   therefore,

serve as a proper basis for probable cause for a search of the

car. Consequently, both the statements and the tangible fruits

of     the   ensuing     search         of     the     vehicle        should    have     been

                                               9
suppressed.   Wong   Sun   v.   United    States,   371   U.S.   471,   487-88

(1963). We therefore reverse the district court’s order denying

the suppression motion, vacate Saafir’s conviction, and remand

this case for further proceedings consistent with this opinion.



                                         REVERSED, VACATED, AND REMANDED;
                                            MANDATE SHALL ISSUE FORTHWITH




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