                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4932


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

DMYTRO PATIUTKA, a/k/a Alex Parker, a/k/a Roman Pak, a/k/a
Andrii Patiutka,

                Defendant - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.  Michael F. Urbanski,
District Judge. (5:14-cr-00014-MFU-1)


Argued:   September 15, 2015                Decided:   October 23, 2015


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Agee joined.


ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellant.       Andrea
Lantz   Harris,   OFFICE   OF  THE   FEDERAL   PUBLIC  DEFENDER,
Charlottesville, Virginia, for Appellee.    ON BRIEF: Anthony P.
Giorno, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellant.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

     The    district   court    granted      Dmytro     Patiutka’s   motion      to

suppress    evidence   flowing    from       a   warrantless    search     of   his

vehicle.     The Government challenges that ruling, asserting that

the search was incident to an arrest or, in the alternative,

fell within the automobile exception to the Fourth Amendment’s

warrant requirement.      We affirm.



                                        I.

     On April 27, 2013, Virginia State Trooper G.S. Cox, while

patrolling Interstate 81, observed an SUV with tinted windows

and a tinted license plate cover, which potentially violated

Virginia law.       When the driver failed to maintain lane, the

trooper pulled the car over.        A video camera on the patrol car’s

dashboard recorded the stop.

        Trooper Cox approached the car and asked the driver for his

license.     The driver, Dmytro Patiutka, handed him a Lithuanian

driver’s license with the name “Roman Pak.”                  The trooper then

asked    Patiutka   for   his    name    and     date   of   birth   and    later

testified that Patiutka gave him a date that differed by eight

years from the date on the driver’s license.                   Although Trooper

Cox testified that at this point he “believed [Patiutka] was

lying to [him] about his identity,” which he understood to be an



                                        2
arrestable offense in Virginia, the trooper asked no follow-up

questions about Patiutka’s purported lie.

        Instead,     Trooper   Cox     ran   the     information       supplied     by

Patiutka     through     police      databases      and,    after     receiving     no

results, returned Patiutka’s license, gave him verbal warnings

for the tint violations, and told Patiutka to “have a nice day”

and that he was “free to go.”            Trooper Cox later testified that,

“[i]n [his] mind, [Patiutka] wasn’t free to leave.”                       Rather, the

trooper intended to reengage Patiutka in conversation and obtain

his consent to search the car.

        As Patiutka began to walk back to his vehicle, Trooper Cox

asked him if he would answer “a couple of questions real quick.”

The trooper then asked for and believed he received consent to

search the car, and so signaled his fellow officers, who had by

then arrived on the scene, to begin searching.                      As many as five

other    officers     participated     in    the    search,    including      Trooper

Jerry Moore, a member of Trooper Cox’s unit.                         Trooper Moore

found    a   bag   containing     a    credit      card    reader    in    the   SUV’s

hatchback     area    and   opened     one    of    several    large       suitcases,

revealing four new, unopened iPads sitting on top.                         Meanwhile,

Patiutka asked Trooper Cox why the officers were searching his

car.     Trooper Cox answered, “I asked you could I search your

car,” to which Patiutka replied, “no, close the car.”                         Trooper

Cox responded by announcing, “hold on, hold on.”

                                         3
       Upon hearing this, Trooper Moore stopped searching for a

moment,    but    then    announced        that    he    was     placing     Patiutka    in

“investigative detention.”                 Based on this command, Trooper Cox

handcuffed       Patiutka       and   took    him       back    to     the   patrol     car.

Trooper Moore later testified that he placed Patiutka only in

investigative detention because he did not think he had probable

cause to arrest Patiutka.             But, given “the multiple iPads in the

vehicle and the credit card reader” and Trooper Cox’s conduct

(the     stop    and    request       to    search),         Trooper    Moore      believed

Patiutka was potentially involved in “criminal activity.”

       The officers continued to search the SUV for approximately

fifty minutes; they found a credit card embosser, a credit card

re-encoder, and numerous blank credit cards.                          At the conclusion

of the search, Trooper Cox transported Patiutka to the state

police    station       and,    during      the    trip,       read    him   his    Miranda

rights.     At the station, Trooper Moore and two Secret Service

agents conducted interviews of Patiutka, during which he made a

number of incriminating statements.

       That same day, Patiutka received traffic summonses for the

state traffic violations for which he was pulled over:                             improper

license    plate       cover,    failure      to    maintain         lane,   and   illegal

window    tint.        Eight    months      later,      on    January    13,    2014,   the

Government filed a criminal complaint in federal court, charging

Patiutka with access device fraud and aggravated identity theft

                                             4
in violation of 18 U.S.C. §§ 1029 and 1028A.                       On March 20, 2014,

a grand jury indicted Patiutka on these charges.

       Patiutka     moved      to    suppress      the    physical      evidence       seized

from his car as well as all statements and evidence that flowed

from    the    warrantless          search.        At     the   suppression         hearing,

Trooper Cox testified that Patiutka gave a birth year of 1982,

eight years earlier than the 1990 date on Patiutka’s license,

and that this caused the officer to believe Patiutka “was lying

. . . about his identity.”               Trooper Cox further testified that

even   “if    we    hadn’t     of    [sic]    found       anything      in    the   vehicle,

[Patiutka] would have ultimately been arrested for providing a

false ID.”

       In     the   district         court,       the     Government         claimed    that

Patiutka’s statements and the evidence found in his car were

admissible under numerous exceptions to the Fourth Amendment’s

warrant requirement.           In a lengthy written opinion, the district

court rejected each of the Government’s asserted justifications.

The Government then filed this interlocutory appeal.

       We     review     a      district          court’s       legal        determinations

underlying a grant of a motion to suppress de novo and its

factual findings for clear error.                       United States v. Black, 707

F.3d 531, 537 (4th Cir. 2013).                     The Fourth Amendment protects

“[t]he      right   of   the    people       to    be    secure    in    their      persons,

houses, papers, and effects, against unreasonable searches and

                                              5
seizures.”     U.S. Const. amend. IV.            Warrantless searches are

presumptively unreasonable “except in certain carefully defined

classes of cases.”      Cady v. Dombrowski, 413 U.S. 433, 439 (1973)

(internal quotation marks omitted).

     Before us, the Government narrows its focus and asserts

that two exceptions to the warrant requirement justified the

warrantless search of Patiutka’s car.           We consider each in turn.



                                       II.

     First, the Government argues that the search was incident

to Patiutka’s arrest.

     Police officers may search a vehicle incident to a recent

occupant’s arrest when “the arrestee is within reaching distance

of the passenger compartment at the time of the search or it is

reasonable    to    believe    the   vehicle    contains     evidence    of     the

offense of arrest.”         Arizona v. Gant, 556 U.S. 332, 351 (2009).

A search may begin prior to an arrest, and still be incident to

that arrest.       Rawlings v. Kentucky, 448 U.S. 98, 111 (1980);

United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991).

However,   police    must     have   probable   cause   to   arrest     prior    to

beginning a search.         See United States v. Han, 74 F.3d 537, 541

(4th Cir. 1996).      This requirement ensures that the fruits of a

warrantless    search    will    not   serve    as   justification      for     the



                                        6
arrest.     See, e.g., Sibron v. New York, 392 U.S. 40, 62-63

(1968).

      We note at the outset that the Government does not contend

that the police conducted a search incident to Patiutka’s arrest

for   access   device   fraud    and   aggravated   identity      theft,   even

though the challenged portion of the search (after withdrawal of

consent) was initiated and conducted to obtain evidence of those

crimes.     Instead, the Government argues that Trooper Cox had

probable   cause   to   arrest    Patiutka   for    the   state   offense    of

providing false identity information and that the search was

valid as incident to Patiutka’s arrest on that charge.               Assuming

that the record permits such an argument, and that the offense

justifying a search incident to arrest can be different from the

offense for which a defendant was arrested, the argument still

fails. 1   This is so because probable cause did not exist for the

officers to arrest Patiutka for any offense at the moment he

revoked consent.




      1The district court found that Patiutka was not arrested
for the state false identity offense. And though the Government
maintains on appeal that Patiutka was indeed arrested for the
state offense of presenting “false identity information to a law
enforcement officer,” the Government concedes that the documents
evidencing   that  arrest   “were   not   presented   during the
suppression hearing proceedings.”     Appellant’s Br. at 7 n.4.
Moreover, we have no need to address the question of whether an
offense justifying a search may differ from the offense for
which a defendant was arrested, and decline to do so.


                                       7
      The   district      court’s     factual    findings       forestall    the

Government’s argument that the challenged search was incident to

any arrest of Patiutka, as the court did not credit Trooper

Cox’s   testimony   as     to   the    factual   basis     of    his    asserted

authority to arrest Patiutka prior to the search.                  Rather, the

court found the trooper’s testimony unconvincing when weighed

against verifiable evidence indicating that the trooper did not

have probable cause to arrest Patiutka at that time.                     We can

reverse only if this finding was clearly erroneous.                    Moreover,

we must view the facts in the record in the light most favorable

to   Patiutka   because    he   prevailed   before   the    district     court.

United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014).                   We

owe “particular[] defer[ence] to a district court’s credibility

determinations, for ‘it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

motion to suppress.’”        United States v. Abu Ali, 528 F.3d 210,

232 (4th Cir. 2008) (quoting United States v. Murray, 65 F.3d

1161, 1169 (4th Cir. 1995)).

      At the suppression hearing, the Government had the burden

of proving by a preponderance of the evidence that Trooper Cox

had probable cause to arrest Patiutka.               See Coolidge v. New

Hampshire, 403 U.S. 443, 455 (1971).              In concluding that the

Government did not meet its burden, the district court relied on

the video of the stop.          The court noted that the video showed

                                       8
that Trooper Cox asked Patiutka no follow-up questions regarding

Patiutka’s purported lie as to his birthdate, but rather handed

the license back to Patiutka and told him he was “free to go.”

The video also showed that after Trooper Cox asked for (and

believed he received) Patiutka’s consent to search, the trooper

immediately     called      off       the    search    when    Patiutka      objected,

suggesting that the only basis for the search was consent.                           And

the   video   did   not    substantiate          the   existence     of    the   primary

evidence the Government relied on in asserting that Trooper Cox

did   have    probable     cause.           That   evidence    was    the    trooper’s

testimony that Patiutka supplied a different birthdate than the

date on his license.         The district court found that, because of

highway   traffic      noise,     a    barking     police     dog,   and    Patiutka’s

pronounced foreign accent, the video did not reveal exactly what

Patiutka said was his birthdate.                   For these reasons, the court

concluded, “I don’t believe there’s sufficient probable cause to

arrest him based on . . . the evidence that I have seen after

hearing the officer’s testimony and after viewing that video.”

We discern no error in this finding.

      We hasten to add it does not follow that we believe, or

that the district court believed, that Trooper Cox lied about

the   date.     Even      Patiutka      argues     only   that     the    trooper   was

“mistaken and that probable cause didn’t exist at that time.”

The district court expressly held that it did not “doubt the

                                             9
good faith” of the troopers.             The court simply concluded, as it

was    entitled   to   do   on   these    facts,   that   the   Government   had

failed to meet its burden of proof.

       The absence of probable cause to arrest Patiutka for any

offense 2 at the moment Trooper Moore decided to continue the

search without Patiutka’s consent renders the search incident to

arrest exception inapplicable here.             See, e.g., Han, 74 F.3d at

541.       Probable cause to arrest arose only after the officers

discovered the blank credit cards, credit card embosser, and

other evidence of identity theft and fraud.                A finding that this

search was incident to Patiutka’s subsequent arrest would permit

the Government “to justify the arrest by the search and at the

same time to justify the search by the arrest.”                     Johnson v.

United States, 333 U.S. 10, 16-17 (1948).                 The Fourth Amendment

forbids this type of unreasonable search.



                                         III.

       Next, the Government argues that the warrantless search was

valid under the automobile exception to the warrant requirement.


       2
       As noted above, the Government does not argue that at the
time Patiutka revoked consent the officers had probable cause to
arrest him for any offense other than the false identity
offense.   Thus, the Government does not contend that it had
probable cause to arrest Patiutka for access device fraud or
aggravated identity theft, the offenses for which he was later
charged.


                                          10
                                         A.

        Police   officers   do     not    need    a   warrant     to    search   an

automobile if they have probable cause to believe it contains

evidence of criminal activity.            United States v. Ross, 456 U.S.

798, 809 (1982).        Probable cause exists when “the known facts

and circumstances are sufficient to warrant a man 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).       Probable cause deals in probabilities that “are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act.”       Brinegar v. United States, 338 U.S. 160, 175

(1949).       Under the automobile exception, police officers may

search for evidence of any crime, not just of the offense that

provided the basis for the arrest.               United States v. Baker, 719

F.3d 313, 319 (4th Cir. 2013).

        When Trooper Moore decided to continue to search the SUV

without Patiutka’s consent, the district court found that he was

aware    of   the   following    facts:       “(1)    for   reasons    unknown   to

[Trooper Moore], Trooper Cox [had] requested a search of the

vehicle;      (2)   there   were    three     suitcases      in   the    back    of

Patiutka’s vehicle; (3) one bag contained a credit card reader;

[and] (4) a larger suitcase had four new iPads on top of it.”



                                         11
The     court      concluded          that   these      facts        did    not     provide     an

objective basis for probable cause to search.

       We agree.             A driver could legally possess the credit card

reader and iPads that Trooper Moore had uncovered at that point.

While       the     trooper         found    their          combination       and       placement

suspicious, innocuous explanations for a driver’s possession of

these items abound.                 For example, many small business owners now

utilize       iPads     with     attached     credit          card   readers       in    lieu   of

traditional point-of-sale systems.                          To be sure, that is not how

Patiutka intended to employ the iPads, but neither Trooper Moore

nor any of the officers present asked Patiutka about the items. 3

       Like       the   district       court,     we        acknowledge     that        the   facts

known to Trooper Moore when he ordered the search to continue

“may       well    meet       the     standard        for    a    reasonable        articulable

suspicion.”         If so, the correct course of action would have been

for     the       troopers      to     question        Patiutka       about       the    contents

uncovered during the consensual search.                            Additional information

arising       out       of     this     conversation             could     potentially        have

supported probable cause to search.                           But neither Trooper Moore

nor any of the other troopers participating in the search paused


       3
       Additionally, Trooper Moore could not infer evidence of a
basis for a warrantless search from the fact that Trooper Cox
had asked Patiutka if the police could search the car. Trooper
Cox testified that he may ask permission to search a car when he
lacks probable cause.


                                                 12
to    speak   with   Patiutka     before       placing      him    in   handcuffs     and

resuming the search.          Because the automobile exception requires

that    the    police      have   probable      cause       (not    just   reasonable

articulable suspicion) to search, the exception does not apply

here.

                                          B.

       The    Government      contends      that       an   additional        piece   of

information provided Trooper Moore with sufficient knowledge to

support      probable   cause     to    search.        Invoking     the    collective-

knowledge doctrine, the Government insists that Trooper Cox’s

suspicions regarding Patiutka’s potentially false identification

should be imputed to Trooper Moore.                 The Government’s theory is

that, when combined with the other pieces of information known

independently to Trooper Moore, these facts tip the scale in

favor of probable cause.               The district court declined to apply

the    collective-knowledge        doctrine        here     because     the    officers

“simply did not communicate with each other.”                      We agree with the

district court that the doctrine does not save this search, but

for the alternative reason that, as we explained above, Trooper

Cox had no probable cause to communicate to a fellow officer.

       The collective-knowledge doctrine “simply directs [a court]

to    substitute     the    knowledge      of    the      instructing      officer    or

officers for the knowledge of the acting officer; it does not

permit [a court] to aggregate bits and pieces of information

                                          13
from among myriad officers.”                United States v. Massenburg, 654

F.3d 480, 493 (4th Cir. 2011).                   In Massenburg, we rejected a

more expansive version of the doctrine that the Government had

proposed and that several circuits have adopted because “[u]nder

th[at] proposed rule, it would be irrelevant that no officer had

sufficient information to justify a search or seizure.”                                Id.

Thus in Massenburg we held that the instructing officer alone

must have sufficient information to justify an arrest or search

in order for the acting officer to benefit from the collective-

knowledge doctrine.          Id. at 495-96.

       In sum, the same credibility determination by the district

court    that   precludes      application         of    the      search    incident    to

arrest     exception    also        thwarts      the     Government’s       collective-

knowledge    argument.         Here      the    district      court     found   that   the

instructing officer, Trooper Cox, did not have probable cause to

arrest    Patiutka     when    he     initiated        the    search.       Rather,    the

search    proceeded     solely      on    the    basis       of   Patiutka’s    consent.

When     Patiutka    revoked     his      consent,       Trooper      Cox   halted     the

search, indicating to the other officers that a basis for the

search no longer existed.                The record evidence is clear that

Trooper     Moore    understood       that      Trooper       Cox,    the   instructing

officer,    had     halted    the    search.        Nonetheless,         Trooper   Moore

determined to continue the search.                 Massenburg teaches that “the

only officer making a reasonable suspicion or probable cause

                                           14
determination is the instructing officer.”                654 F.3d at 495 n.6.

Here,     the    instructing     officer,      Trooper    Cox,   made   no    such

determination.         Instead,      Trooper    Cox     instructed    his    fellow

officers to search the SUV when he believed he had Patiutka’s

consent and immediately called off the search when he understood

that he no longer had consent.                 Accordingly, the collective-

knowledge doctrine offers no assistance to the Government.



                                        IV.

        For   the   foregoing    reasons,      neither    of   the   Government’s

proposed        exceptions      to    the      Fourth     Amendment’s       warrant

requirement apply here.          Therefore, the judgment of the district

court granting Dmytro Patiutka’s motion to suppress is

                                                                        AFFIRMED.




                                        15
