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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 11-CM-985

                        THOMAS M. BUTLER, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CMD-7070-10)

                    (Hon. Herbert B. Dixon, Jr., Trial Judge)

 (Argued October 25, 2012                           Decided November 6, 2014)

      Thomas T. Heslep for appellant.

      Trevor McFadden, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States
Attorney at the time the brief was filed, and Elizabeth Trosman, Benjamin Eisman,
and Katherine A. Sawyer, Assistant United States Attorneys, were on the brief, for
appellee.

     Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
BELSON, Senior Judge.

      Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.

      Dissenting opinion by Associate Judge BECKWITH at page 13.
                                         2


      BLACKBURNE-RIGSBY, Associate Judge: Following a jury trial, appellant

Thomas Butler was convicted of two counts of unlawful possession of a controlled

substance (marijuana and amphetamine), in violation of D.C. Code § 48-904.01 (d)

(2012 Repl.).1 On appeal, appellant argues that the trial court erred in denying his

motion to suppress the drugs found on his person because the police lacked

probable cause to arrest him and could not search him incident to arrest based

solely on the smell of marijuana emanating from his vehicle. Citing primarily

Minnick v. United States, 607 A.2d 519 (D.C. 1992), the government argues that

the identifiable aroma of a drug by itself provides probable cause to arrest and

search an individual. While we are not persuaded by the government‟s argument,

and recognize that with the passage of the Marijuana Possession Decriminalization

Amendment Act of 2014, effective July 17, 2014, see D.C. Council, Act 20-305

(Mar. 31, 2014), the calculus of probable cause in future cases such as this may

change, we nonetheless conclude — albeit not without some pause — that the

arrest and subsequent search of appellant in this case was not unconstitutional.

Accordingly, we affirm.




      1
         Appellant was initially indicted with one count of possession with intent to
distribute amphetamine, see D.C. Code § 48-904.01 (a)(1), but the jury found him
guilty of the lesser-included offense of possession.
                                        3


                               I.   Factual Background



      At the suppression hearing, Metropolitan Police Department Officer David

Boarman testified that at approximately 7:09 p.m. on April 21, 2010, he was

driving his marked patrol vehicle on the 2300 block of Benning Road, Northeast,

Washington, D.C., when he noticed broken rear brake lights on the vehicle that

appellant was driving, and subsequently initiated a traffic stop.     The officer

approached the passenger side of the vehicle, advised appellant of the reason for

the traffic stop, and asked for his license, registration, and proof of insurance.

During this interaction in which the passenger side window was lowered, Officer

Boarman, who has been exposed to marijuana several hundred times, identified the

strong odor of “fresh” marijuana coming from inside the vehicle. When the officer

informed appellant of the smell, appellant, who was alone, replied: “Man, you

don‟t smell no weed in here”; “Man, you can search the vehicle”; and “You can

smell my fingers if you want to.” In response, Officer Boarman asked appellant to

step outside of the vehicle, brought him to the back of the vehicle, and “started

conducting a search of him.”



      During this search, the officer in addition detected the smell of marijuana

emanating from appellant‟s clothing — most notably his jacket — to which
                                         4


appellant claimed that he did not own the jacket, and that the person who owned

the jacket had been smoking. When the officer pulled up appellant‟s left pant leg,

he saw wedged between the sock and shoe a clear plastic bag containing a quantity

of pills (later identified as amphetamine) and directly underneath, another clear

bag, containing a “brown, green, weed-like substance,” which field tested positive

for marijuana. Following this search, Officer Boarman handcuffed appellant and

searched the vehicle for more drugs, although none was ultimately found. On

cross-examination, Officer Boarman confirmed that the smell of marijuana may

“linger” in a closed space, and that it was “possible” any clothing confined in the

closed space will then smell like marijuana.2



      During arguments on the motion to suppress, the government maintained

that the search was lawful on the basis that “[u]nder well-established D.C. law, the

plain smell of narcotics provides probable cause to conduct a search of a

defendant‟s person, [and] that‟s what occurred here.” When the trial court asked if

the government “rel[ied] at all on the issue of consent,” the government said

“[n]o.” Appellant‟s trial counsel retorted that the cases he read “all had to do with

      2
            Appellant testified on his own behalf. His testimony was mostly
consistent with Officer Boarman‟s, except he insisted that his brake lights were
working and he denied giving the officer permission to search his vehicle. He also
testified that the sealed plastic bag was located under his foot, not merely wedged
between his sock and shoe, and that the officer had to take his shoe off to find it.
                                          5


searching the car and not . . . the person[,]” and that this court had not “reached [a

decision] [o]n search[ing] [] a person [based] on probable cause just from a smell.”

The trial court credited Officer Boarman‟s testimony and denied appellant‟s

motion on two grounds. First, the officer “had probable cause to conduct the

search” of appellant‟s person based on “the smelling of the marijuana coming from

the vehicle” and “the marijuana continuing to emanate from the defendant

himself.”3 Second, when appellant told the officer that he could search the car, “as

far as this [c]ourt is concerned, that was consent to search the defendant and to

search the car.”4 Appellant‟s case proceeded to trial, where he was found guilty of

two counts of possession. This appeal followed.



                                   II.    Discussion



      On appeal, appellant argues that the trial court should have suppressed the

drugs found on his person because the police lacked probable cause to arrest him,

      3
        Neither the government nor the trial court specified what exception to the
Fourth Amendment permitted the search under this theory. See Coolidge v. New
Hampshire, 403 U.S. 443, 455 (1971).
      4
        This theory, which the government did not argue in the trial court and has
not argued on appeal, is foreclosed by the Supreme Court‟s decision in Florida v.
Jimeno, 500 U.S. 248, 252 (1991) (“A suspect may of course delimit as he chooses
the scope of the search to which he consents.”).
                                        6


and conducted an evidentiary search in violation of the Fourth Amendment.5

Abandoning its position in the trial court that the smell of marijuana provided

probable cause to search appellant‟s person, the government now argues on appeal

that the smell of marijuana alone provides probable cause to arrest appellant,

which then gave the police authority to search him under the search-incident-to-

arrest exception.



      A. Standard of Review



      In reviewing the denial of a motion to suppress, this court must uphold the

trial court‟s findings of fact unless clearly erroneous and view all facts and

reasonable inferences in the light most favorable to the government. See Prince v.

United States, 825 A.2d 928, 931 (D.C. 2003). However, we make a de novo,

“independent determination of whether there . . . was probable cause to arrest.”

Shelton v. United States, 929 A.2d 420, 423 (D.C. 2007). The government bears

the burden of establishing probable cause. See Brown v. United States, 590 A.2d

1008, 1013 (D.C. 1991). Thus, if the evidence fails to demonstrate probable cause

to arrest at the time of the search, the seized contraband is suppressed “as the

      5
         The Fourth Amendment guarantees “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV.
                                           7


product of an unreasonable search and seizure in violation of the Fourth

Amendment.” Shelton, supra, 929 A.2d at 423. That said, “[a] search incident to

arrest may precede the actual arrest if probable cause exists, independent of the

search, to justify the arrest, and if the arrest follows „quickly on the heels‟ of the

search.”6 Millet v. United States, 977 A.2d 932, 935 (D.C. 2009).



      Probable cause to arrest “exists where the facts and circumstances within the

police officers‟ knowledge and of which they had reasonably trustworthy

information are sufficient in themselves to warrant a man or woman of reasonable

caution in the belief that an offense has been or is being committed.” Spinner v.

United States, 618 A.2d 176, 178 (D.C. 1992) (citation, internal quotation marks,

and other punctuation omitted). “To this it is added that probable cause must be

„particularized‟ with respect to the person to be searched or seized.” Perkins v.

      6
          Appellant appears to challenge our case law holding that an officer may
first search a suspect before arresting him or her by contending that “a fiction is
created that [the officer] ha[s] arrested a person when they search him.” However,
as stated above, a search may precede an actual arrest only when there is probable
cause to arrest at the time of the search and an arrest follows “quickly on the heels”
of the search. Therefore, contrary to appellant‟s claim, our case law does not
approve — and indeed actively guards against — “fishing expeditions” for
contraband. Notably, in a recent decision by this court, United States v. Nash,
-- A.3d --, Nos. 13-CO-1299 & 13-CO-1456, slip op at *25 (Sep. 25, 2014), we
confirmed that a search incident to arrest is lawful even if, at the time of the search,
the police had not yet arrested the suspect and did not subjectively intend to do so.
Contrary to our dissenting colleague‟s view, the majority is in accord with Nash‟s
holding and reasoning for doing so.
                                          8


United States, 936 A.2d 303, 306 (D.C. 2007). While “it is clear that only the

probability, and not a prima facie showing, of criminal activity is the standard of

probable cause[,]” id. (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)), in

evaluating whether this standard has been met, we keep in mind the fundamental

principle that “[t]he history of the use, and not infrequent abuse, of the power to

arrest cautions that a relaxation of the fundamental requirements of probable cause

would „leave law-abiding citizens at the mercy of the officers‟ whim or caprice.”

Wong Sun v. United States, 371 U.S. 471, 483 (1963) (quoting Brinegar v. United

States, 338 U.S. 160, 176 (1949)).



      B. Probable Cause to Arrest versus Probable Cause to Search



      Preliminarily, we address the government‟s argument that this court has

previously already held that the identifiable smell of a drug by itself provides

probable cause to arrest and search an individual. In support of this claim, the

government cites to our decisions in Wilson v. United States, 802 A.2d 367 (D.C.

2002) and Minnick. Plainly, Wilson is not on all fours because the police in that

case detected “a really strong odor of PCP” and saw tin foils consistent with PCP

packaging before arresting the suspects for possession. Id. at 372. Likewise,

Minnick‟s holding pertained to a related but ultimately different inquiry, i.e., “that
                                         9


a police officer who smells the identifiable aroma of contraband drug emanating

from a car has probable cause to believe that the car contains a quantity of that

drug[,]” 607 A.2d at 525, and can thus search the car and any containers therein

under the automobile exception to the warrant requirement.7



      Nor is our decision here in the probable cause to arrest context automatically

required by Minnick‟s holding regarding probable cause to search, even if it is

persuasive authority regarding a search. Despite their shared origins, probable

cause to arrest and probable cause to search present different questions and have a

different emphasis. See United States v. Gilliam, 334 U.S. App. D.C. 391, 396,

167 F.3d 628, 633 (1999). Indeed, other courts considering exactly this issue have

concluded that the two inquiries are distinct.8 While generally the same “quantum


      7
        While the court in Minnick did note in a footnote that the search “may also
be sustained as incident to a lawful arrest[,]” 607 A.2d at 525, this observation was
“unnecessary to our affirmance of the conviction,” see Heard v. United States, 121
U.S. App. D.C. 37, 38, 348 F.2d 43, 44 n.3 (1964), and therefore dictum. See, e.g.,
Parker v. K & L Gates, LLP, 76 A.3d 859, 873 (D.C. 2013) (“[F]or purposes of
binding precedent, a holding is a narrow concept, a statement of the outcome
accompanied by one or more legal steps or conclusions along the way that — as
this court and others have repeatedly held — are „necessary‟ to explain the
outcome; other observations are dicta.”).
      8
         See State v. Reed, 712 So. 2d 458, 569 (Fla. 1998) (noting the difference
between a probable cause to arrest and probable cause to search analysis); Edmond
v. State, 951 N.E.2d 585, 591 (Ind. App. Ct. 2011) (same); State v. Secrist, 589
N.W.2d 387, 391 (Wis. 1999) (same).
                                         10


of evidence” is required for either inquiry, see, e.g., Greene v. Reeves, 80 F.3d

1101, 1106 (6th Cir. 1996), “[e]ach requires a showing of probabilities as to

somewhat different facts and circumstances — a point seldom made explicit in the

appellate cases.” 2 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 3.1 (b), at 6-7 (5th ed. 2012). “Probable cause to search

exists where in view of the „totality of the circumstances,‟ „there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.‟” Gilliam, supra, 334 U.S. App. D.C. at 396, 167 F.3d at 633 (quoting

Gates, supra, 462 U.S. at 239). Contrastingly, the inquiry for probable cause to

arrest is whether “„the facts and circumstances‟ within a law enforcement officer‟s

knowledge are „sufficient to warrant a prudent [police officer] in believing that [the

suspects] had committed or [were] committing an offense.‟” Id. (alteration in

original) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)); see also Maryland v.

Pringle, U.S. 366, 371 (2003). “This distinction is a critical one . . . [and] there

may be probable cause to search without probable cause to arrest, and vice-versa.”

2 LaFave, Search and Seizure § 3.1 (b) at 12.



      Consequently, unlike in Minnick, the legality of the search in this case

cannot simply turn on whether the officer identified the smell of marijuana

“generally” emanating from appellant‟s vehicle — which indisputably would allow
                                          11


the police to search the vehicle for contraband — but rather on whether the facts

and circumstances within Officer Boarman‟s knowledge at the time gave him

“reasonable grounds to believe . . . that a felony ha[d] been committed by the

person to be arrested[,]” id. at 9, i.e., a particularized belief that appellant

committed a drug-related crime at the time of arrest and search. While we do not

dispute that “in appropriate circumstances, odor may serve as the basis or the

principal basis for probable cause to arrest[,] . . . the officer [must] be able to link

the unmistakable odor of marijuana . . . to a specific person or persons. The

linkage must be reasonable and capable of articulation.” Secrist, supra note 8, 589

N.W.2d at 394 (citations omitted).



      C. The Probable Cause to Arrest Inquiry



      Here, if the government had presented only evidence that the officer smelled

marijuana generally emanating from appellant‟s vehicle, we would have

reservations in upholding the legality of appellant‟s subsequent arrest and search.

See, e.g., Reed, supra note 8, 712 So. 2d at 460 (“[H]ad the smell emanated solely

from the [marijuana-laced] cigar[,] . . . the search of [appellant‟s] person would
                                         12


have rested on perilous probable cause grounds.”).9 However, there were two

additional factors in this case that provided Officer Boarman with sufficient

particularized justification to arrest appellant for a drug offense and search him

incident thereto. First, appellant was the sole occupant of the vehicle, thus making

it more likely that any marijuana present was either on his person or within his

exclusive control. See, e.g., Ruckus v. United States, 455 A.2d 889, 891 (D.C.

1983) (“An individual has constructive possession of narcotics when he is

knowingly in a position to or has a right to exercise dominion and control over

them, either directly or through others.”). Second, Officer Boarman testified that

— based on his extensive experience in detecting marijuana — the aroma was of

fresh marijuana. In our view, this makes it more likely that appellant was presently

in possession of marijuana.10      See, e.g., Perkins, supra, 936 A.2d at 306

(analogizing the probable cause standard to the “reasonable probability” standard).

We find persuasive the Wisconsin Supreme Court‟s reasoning in Secrist: “The

strong odor of marijuana in an automobile will normally provide probable cause to

      9
          The fact that appellant‟s jacket also smelled of marijuana does not factor
into our probable cause calculus because the officer noticed the smell only after the
search had already begun. See Millet, supra, 977 A.2d at 935 (“A search incident
to arrest may precede the actual arrest if probable cause exists, independent of the
search, to justify the arrest . . . .” (emphasis added)).
      10
         That being said, we take no position on whether or not probable cause to
arrest would have existed in this case if the aroma was of burnt, rather than fresh,
marijuana.
                                           13


believe that the driver and sole occupant of the vehicle is linked to the drug. The

probability diminishes if the odor is not strong or recent, if the source of the odor is

not near the person, if there are several people in the vehicle, or if a person offers a

reasonable explanation for the odor.” 589 N.W.2d at 395. For these reasons,

Officer Boarman had probable cause to reasonably believe that appellant had

committed a drug-related offense at the time of the arrest and search.



                                    III.   Conclusion



      Accordingly, the arrest of appellant and search incident thereto was lawful,

and the trial court did not err in denying appellant‟s motion to suppress.

Appellant‟s convictions are hereby



                                                      Affirmed.



      BECKWITH, Associate Judge, dissenting.            After pulling over appellant

Thomas Butler for having broken brake lights, a police officer stepped Mr. Butler

out of the car and promptly “started conducting a search” of him from shoulder to

toe “[b]ecause of the odor of marijuana coming from the vehicle.” On appeal from

his convictions for possessing the drugs that police found in Mr. Butler‟s shoe, Mr.
                                          14


Butler argues (in addition to contending that police had no probable cause to arrest)

that the officer conducted “a simple evidentiary search, unconnected to an arrest”

when the officer searched his person, and that the government cannot justify this

search under the exception to the Fourth Amendment‟s warrant requirement upon

which it relies—that for searches incident to lawful arrest.



       In that vein, the majority states, and I agree, that “our case law does not

approve—and       indeed    actively   guards   against—„fishing     expeditions‟    for

contraband.” Ante at 7 n.6. Yet in the next sentence, the majority expresses

agreement with the seemingly opposite conclusion, recently drawn by another

panel of this court, that “a search incident to arrest is lawful even if, at the time of

the search, the police had not yet arrested the suspect and did not subjectively

intend to do so.” Ante at 7 n.6 (emphasis added) (citing United States v. Nash, --

A.3d --, Nos. 13-CO-1299 & 13-CO-1456 (Sept. 25, 2014)). Such a conclusion

flatly defies the U.S. Supreme Court‟s Fourth Amendment jurisprudence, including

precedent, such as Knowles v. Iowa, 525 U.S. 113 (1998), in which the fact that an

officer did not intend to arrest a suspect was what made a purported search incident

to arrest illegal. See id. at 117.



       In the search-incident-to-arrest context, the Supreme Court has guarded
                                          15


against such investigatory searches by insisting on the “fact” of an arrest.

Knowles, 525 U.S. at 117 (quoting United States v. Robinson, 414 U.S. 218, 234

n.5 (1973)). In this case, where the arresting officer testified that he “just directly

went looking for marijuana” after smelling marijuana and getting Mr. Butler out of

the car, I would reverse Mr. Butler‟s convictions on the ground that the search of

his person was not incident to any arrest. That is, the record is devoid of signs that

the officer was arresting Mr. Butler for possession of marijuana when he conducted

the search and instead indicates that he was conducting an investigative search not

incident to any arrest.



      Supreme Court case law establishes that under the search-incident-to-arrest

exception to the warrant requirement, the government needs more than just

probable cause to arrest. It needs an arrest. In the foundational search-incident-to-

arrest case of Chimel v. California, 395 U.S. 752, 763 (1969), the Supreme Court

found it “reasonable for the arresting officer to search the person arrested” for two

reasons: “to remove any weapons that the [arrestee] might seek to use in order to

resist arrest or effect his escape” and “to search for and seize any evidence on the

arrestee‟s person in order to prevent its concealment or destruction.” Four years

later in Robinson, 414 U.S. at 235, the Supreme Court clarified that “[t]he authority

to search the person incident to a lawful custodial arrest, while based upon the need
                                          16


to disarm and to discover evidence, does not depend on what a court may later

decide was the probability in a particular arrest situation that weapons or evidence

would in fact be found upon the person of the suspect.” That is because “it is the

fact of custodial arrest which gives rise to the authority to search,” id. at 236,1 and

“[i]t is scarcely open to doubt that the danger to an officer is far greater in the case

of the extended exposure which follows the taking of a suspect into custody and

transporting him to the police station than in the case of the relatively fleeting

contact resulting from the typical Terry-type stop.” Id. at 234-35.2



      In Knowles v. Iowa, 525 U.S. at 118-19, the Supreme Court unanimously

      1
           The Robinson Court identified an additional reason—the unique
intrusiveness of arrests—for linking searches incident to arrest to the actual fact of
arrest: “An arrest is a wholly different kind of intrusion upon individual freedom
from a limited search for weapons . . . . An arrest is the initial stage of a criminal
prosecution. It is intended to vindicate society‟s interest in having its laws obeyed,
and it is inevitably accompanied by future interference with the individual‟s
freedom of movement, whether or not trial or conviction ultimately follows.”
Robinson, 414 U.S. at 228 (quoting Terry, 392 U.S. at 26). Thus the Robinson
Court located the pivotal Fourth Amendment moment in the arrest itself, not its
incidental search: “A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a
search incident to the arrest requires no additional justification.” Id. at 235.
      2
         See also Washington v. Chrisman, 455 U.S. 1, 7 (1982) (“Every arrest
must be presumed to present a risk of danger to the arresting officer.”); Cupp v.
Murphy, 412 U.S. 291, 296 (1973) (“Where there is no formal arrest, as in the case
before us, a person might well be less hostile to the police and less likely to take
conspicuous, immediate steps to destroy incriminating evidence on his person.”);
Holt v. United States, 675 A.2d 474, 481 (D.C. 1996).
                                         17


reaffirmed Robinson‟s reasoning and declined to “extend” Robinson‟s “bright-line

rule” to searches incident to a non-arrest. In Knowles, a police officer stopped

Patrick Knowles for speeding. Iowa law permitted the officer either to arrest Mr.

Knowles or to issue him a citation, and the officer followed “the far more usual

practice of issuing a citation,” and then, as allowed under Iowa law, searched the

car “incident to citation,” finding drugs and drug paraphernalia. Id. at 115. The

Iowa Supreme Court affirmed Mr. Knowles‟s convictions, “reasoning that so long

as the arresting officer had probable cause to make a custodial arrest, there need

not in fact have been a custodial arrest.” Id. at 115-16. Rejecting this position, the

U.S. Supreme Court insisted on the “fact” of arrest, “recogniz[ing] that „[t]he

danger to the police officer flows from the fact of the arrest, and its attendant

proximity, stress, and uncertainty, and not from the grounds for arrest.‟” Id. at 117

(quoting Robinson, 414 U.S. at 234 n.5). “The threat to officer safety from issuing

a traffic citation,” the Court explained, “is a good deal less than in the case of a

custodial arrest.”3    Id.   Under Knowles, then, the search-incident-to-arrest

exception is rooted in the existence of an arrest—in Robinson‟s phrasing, “the fact

      3
         The Supreme Court affirmed this reasoning in Virginia v. Moore, 553 U.S.
164, 177 (2008), stating that a search incident to arrest “enables officers to
safeguard evidence, and, most critically, to ensure their safety during „the extended
exposure which follows the taking of a suspect into custody and transporting him
to the police station,‟” id. (quoting Robinson, 414 U.S. at 234-35), and further
stating that because “[o]fficers issuing citations do not face the same danger,”
under Knowles, “they do not have the same authority to search,” id.
                                         18


of custodial arrest,” 414 U.S. at 236—not in the existence of probable cause to

arrest. See also In re J.O.R., 820 A.2d 546, 547-48 (D.C. 2003) (upholding the

search of J.O.R‟s coat pockets as “valid under Robinson,” even though police were

taking J.O.R. into custody under a neglect order and not for a crime, because the

danger to police officers “flows from their prolonged exposure . . . while taking the

person into custody and transporting him, and not from the ground for the arrest”).



      In this case, the government cannot reconcile with Knowles and Robinson its

assertion that “[b]ecause there was probable cause to arrest appellant, Officer

Boarman‟s search was lawful.”4 Rather than being “incident to” Mr. Butler‟s later

arrest, the officer‟s search of Mr. Butler had all the hallmarks of a warrantless

investigative search,5 which is just how the officer characterized it.       Officer


      4
        The government bears the burden to justify the search “based on facts that
could bring it within certain recognized, limited exceptions to the warrant
requirement.” Bennett v. United States, 26 A.3d 745, 751 (D.C. 2011) (internal
quotation marks and citation omitted).
      5
          This case thus differs from previous cases upholding searches as incident
to lawful arrest. See, e.g., Prince v. United States, 825 A.2d 928, 930 (D.C. 2003)
(pre-search, officer felt “the texture of the marijuana” in appellant‟s pocket during
Terry frisk); Hill v. United States, 627 A.2d 975, 978 (D.C. 1993) (pre-search,
“Hill was not merely „detained‟ but had actually been „seized‟ and was under
arrest”); Irby v. United States, 342 A.2d 33, 37 (D.C. 1975) (pre-search, appellants
were “effectively under arrest when they were ordered from the car at gunpoint,”
after officers had seen “reported proceeds of the robbery” in plain view). See also
the discussion infra of Millet v. United States, 977 A.2d 932, 934 (D.C. 2009) (pre-
                                                                        (continued…)
                                           19


Boarman “just directly went looking for marijuana” after getting Mr. Butler out of

the car, and when the prosecutor asked him to explain why he started to search Mr.

Butler, he responded that he did so “[b]ecause of the odor of marijuana coming

from the vehicle.” That Officer Boarman acknowledged that the clothing of a

person in the presence of marijuana might come to smell like marijuana also is at

odds with the government‟s suggestion that the police were determined, pre-

search, to arrest Mr. Butler based on the smell of marijuana. And a second search

Officer Boarman described—a search during which the officer “did eventually take

[Mr. Butler‟s] shoes off on the scene, to just make sure there was no more

narcotics shoved down in his shoes”—looks like a classic Chimel-style search

incident to arrest, in contrast to the initial search that yielded the drugs.



      The government correctly notes that a valid search incident to arrest may at

times precede the actual arrest. In Rawlings v. Kentucky, 448 U.S. 98, 111 (1980),

the Supreme Court held that “[w]here the formal arrest followed quickly on the

heels of the challenged search of petitioner‟s person,” it was not “particularly




(…continued)
search, officer “told Millet and Fountain that they would both be charged in
connection with the marijuana found in the bag”).
                                         20


important that the search preceded the arrest rather than vice versa.”6



      Mr. Rawlings had received Miranda warnings and then confessed to

possessing drugs found in his companion‟s purse. Id. at 100-01. The police, who

by that point had detained Mr. Rawlings for 45 minutes, searched his person and

“then placed [him] under formal arrest.” Id. at 101. Unlike Mr. Butler‟s arrest,

Mr. Rawlings‟s arrest was already in the works at the time of the search, and only

his “formal arrest” followed. Id. at 111; see also State v. Funkhouser, 782 A.2d

387, 408 (Md. App. 2001) (seeking “an arrest already in motion”). The Rawlings

Court cited Cupp v. Murphy, 412 U.S. 291 (1973), where, as the Court explained,

“the police had probable cause to make an arrest” at the time of the challenged

search, 412 U.S. at 293, but did not arrest the suspect until a month later. The

Court upheld a “very limited search necessary to preserve the highly evanescent

evidence,” id. at 296—dried blood under a murder suspect‟s fingernails that he was




      6
         See Anderson v. State, 553 A.2d 1296, 1301 (Md. App. 1989) (“There will
be occasions when the arresting officer deems it tactically unwise to lose critical
seconds or even to be momentarily distracted from his overriding necessity of
„beating his opponent to the draw.‟ Under the circumstances, it would exalt form
over substance to the point of absurdity to insist that an officer clap his hand upon
an arrestee‟s shoulder and say the operative words, „You are under arrest,‟ before
disarming and/or neutralizing a potentially dangerous target.”).
                                          21


scratching off7—but cautioned that “we do not hold that a full Chimel search

would have been justified in this case without a formal arrest and without a

warrant.” Id. at 296. Cupp, like Knowles, indicates that for police to search

incident to arrest, it is not enough for the suspect merely to be “arrestable.”8


      7
        In Cupp, when the suspect refused to give a sample and then attempted to
destroy the blood, the police scraped his fingernails without his consent or a
warrant. 412 U.S. at 292-94. The Court has since understood Cupp as a case
involving the “imminent destruction of evidence,” consistent with the view that
probable cause to arrest does not entitle police to search without an arrest or some
additional exigency. See Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013).
      8
          For state court holdings that, like Knowles v. Iowa, reject the “reasoning
that so long as the arresting officer had probable cause to make a custodial arrest,
there need not in fact have been a custodial arrest,” 525 U.S. at 115-16, see
Commonwealth v. Craan, 13 N.E.3d 569, 469 Mass. 24 (Mass. 2014) (“Where no
arrest is underway, the rationales underlying the exception do not apply with equal
force. . . . .Given that it lacked the critical element of an arrest, the search of the
defendant‟s vehicle cannot be sustained as a search incident to arrest.”);
Commonwealth v. Washington, 869 N.E.2d 605, 611-12 (Mass. 2007) (“To permit
a search incident to arrest where the suspect is not arrested until much later, or is
never arrested, would sever this exception completely from its justifications” and
“would, in effect, create a wholly new exception for a „search incident to probable
cause to arrest.‟ This we decline to do.”); Belote v. State, 981 A.2d 1247, 1252
(Md. 2009) (“[T]he fact that a police officer conducts a Terry stop and has
probable cause, without more, is not sufficient to give rise to a custodial arrest,” so
as to trigger the search-incident-to-arrest exception.); People v. Evans, 371 N.E.2d
528, 531 (N.Y. 1977) (“[T]he police may not utilize the existence of probable
cause as a trump card to justify warrantless personal searches. Unless and until a
person is arrested, a full body search without a warrant or exceptional
circumstances is constitutionally unreasonable.”); State v. Ingram, 331 S.W.3d
746, 758 (Tenn. 2011) (“It is not sufficient that an arrest could have been made; the
arrest must have been made roughly contemporaneously to the search in order for it
to justify the search as incident to an arrest.”); Lovelace v. Commonwealth, 522
S.E.2d 856, 860 (Va. 1999) (rejecting “the Commonwealth‟s argument that the
                                                                         (continued…)
                                          22


      Rescinding this historical rule turns the search-incident-to-arrest exception

into a search-incident-to-probable-cause-to-arrest exception, disregarding the

Supreme Court‟s repeated pronouncements describing warrant exceptions as

“specifically established,” “well delineated,” and “jealously and carefully drawn.”

Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (internal quotation marks

and citations omitted). It also expands police authority to perform investigative

searches.9



      Given the Supreme Court‟s precedent, I would not interpret either of two

statements in our prior decision in Millet v. United States, 977 A.2d 932 (D.C.

2009)—specifically, (1) that “[t]he validity of the search depended not on the

officer‟s subjective motivations, but rather on whether there were objective facts

establishing probable cause to believe that Millet had committed or was

committing a crime,” id. at 937 n.6; or (2) that “the fact that the police searched

Millet before formally placing him under arrest did not require the court to

(…continued)
existence of probable cause to charge Lovelace with drinking an alcoholic
beverage in public allowed Womack to search him”); State v. O'Neill, 62 P.3d 489,
501 (Wash. 2003) (stating, in state constitutional holding, that “it is the arrest, not
probable cause to arrest, that constitutes the necessary authority of law for a search
incident to arrest”).
      9
         See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (permitting
police to arrest for “even a very minor criminal offense” such as not buckling up).
                                          23


suppress the fruits of the search if the officers had probable cause to arrest him

independent of the search itself,” id. at 935-36—to mean that the government need

only show probable cause to arrest, and not also an actual arrest to which the

search was “incident,” to justify the warrantless search. As the majority notes,

however, this court recently determined, in a case that arose on a government

appeal after Mr. Butler‟s case was argued, that a purported holding in a footnote in

Millet compelled it to reach just such a result, in direct tension, in my view, with

Knowles‟s core holding that a valid search incident to arrest requires not just

probable cause to arrest, but an actual arrest. See United States v. Nash, supra, --

A.3d --, Nos. 13-CO-1299 & 13-CO-1456 (Sept. 25, 2014). The panel in Nash

faced a claim that a search of a car was not a lawful search incident to arrest

because, at the time of the search, the police had no intention of making an arrest.10

Nash, slip op. at 19-20. Concluding that “Millet is controlling here,” the Nash

court held that “the search of [appellant‟s car] was a lawful incident of the arrest of

[the passenger], even if, at the time of the search, the officers had not yet arrested

[the passenger] and did not intend to do so.” Nash, slip op. at 25.


      10
             Referring to Millet, Nash stated that “[t]he court there confronted
precisely the claim raised by [appellant]—that a search cannot be incident to an
arrest if, at the time of the search, the officers have not yet made an arrest and do
not intend to make an arrest. The court disagreed, holding that it did not matter
whether the officers intended to make an arrest. Millet requires us to reach the
same conclusion in [appellant‟s] case.” Id. at 25.
                                         24


      Millet cannot have intended a holding that so offhandedly brings such a

fundamental change to the law governing the search-incident-to-arrest exception to

the warrant requirement.      The court in Nash acknowledged that “Millet’s

discussion of the question is compressed,” that “more could be said on both sides

of the question,” and that the question “has divided courts around the country.”

Slip op. at 26. Indeed, Millet dealt only in passing with the appellant‟s claim that

the officer “searched him illegally because she did not intend to arrest him at that

time,” calling it “without merit” and easily disposing of it in a footnote. Millet,

977 A.2d at 937 n.6. This was primarily on factual rather than legal grounds,

moreover, because, at the time of the search, the officer already had legally found a

bag containing marijuana in the car, had arrested the driver, Mr. Fountain, for

driving under the influence of marijuana, and had “told Millet and Fountain that

they would both be charged in connection with the marijuana found in the bag.”

Id. at 934. It was clear enough that Mr. Millet would be arrested and that the

search was incident to arrest, and therefore this court devoted its analysis to

whether the arrest was lawful—that is, whether the police officers had probable

cause, at the time of the search, to arrest—and ultimately decided that they did.11


      11
         See United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012) (noting that
“stare decisis is never properly invoked unless in the decision put forward as
precedent the judicial mind has been applied to and passed upon the precise
question” (quoting Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994))).
                                          25


This explains the court‟s statement, now understood in context, that the search was

valid “if the officers had probable cause to arrest him independent of the search

itself.” Millet, 977 A.2d at 935-36.



      Nash‟s reading of Millet is tough to reconcile with Chimel and its progeny.

In essentially making probable cause to arrest enough to justify a search under the

search-incident-to-arrest exception, it transforms the search-incident-to-arrest

exception into an “arrestable” exception—precisely the transformation that

Robinson and Knowles guard against.12



      12
           The Nash decision does not directly state that probable cause to arrest is
sufficient to justify a search under the search-incident-to-arrest exception, but
instead framed the question before it in terms of the following four components:
“As we view it, the question presented in this case is whether the police lawfully
may search a vehicle incident to the arrest of a suspect if, at the time of the search,
(1) the police have probable cause to arrest the suspect for an offense; (2) the
police have seized the suspect but have not placed the suspect under formal arrest;
(3) it is unclear what, if anything, the police have decided with respect to the arrest
of the suspect; and (4) the police subsequently do place the suspect under arrest for
the offense.” Nash, slip op. at 22. The last three parts—that the police have not
yet arrested the suspect, have not yet decided to arrest the suspect, and, following
the search, do arrest the suspect—add little to this equation, however. Nash
emphasizes that Knowles was factually different because the officer there admitted
that he had decided not to arrest the suspect before conducting the search, while in
Nash, the police officer‟s intent was uncertain. See Nash, slip op. at 21, 22. Yet
authorizing such a search—purportedly made “incident to arrest”—because the
police officer has not made a decision whether to arrest would seem to legitimize
the sort of plainly investigative searches that the majority here acknowledges run
afoul of the Fourth Amendment.
                                            26


          Because the record in this case signals that the officer‟s discovery of drugs

in Mr. Butler‟s shoe “was the precipitating or catalytic agent” for his arrest and

there was “no suggestion that [Mr. Butler] was going to be arrested regardless of

what the search . . . revealed,” Funkhouser, 782 A.2d at 408, this search was

unconstitutional because police did not conduct the search incident to Mr. Butler‟s

arrest.
