     Case: 15-30838      Document: 00513487814         Page: 1    Date Filed: 05/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-30838                                 FILED
                                                                                May 2, 2016

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellant

v.

JOSEPH CLARK, III,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:15-CR-49


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant–Appellee Joseph Clark, III, was indicted on one count of
possession of a firearm by a convicted felon and one count of possession with
intent to distribute heroin. Clark moved to suppress evidence obtained from
the search of his person and vehicle, and the district court granted the motion,
concluding that the searches were not incident to a lawful arrest. Because
there was probable cause to arrest Clark and because the search of Clark’s


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 15-30838
person and vehicle were incident to that arrest, we REVERSE the district
court’s order granting the motion to suppress and REMAND for further
proceedings.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      In October 2014, a confidential informant 1 notified Detective David
Burtwell of the Baton Rouge Police Department (BRPD) that Defendant–
Appellee Joseph Clark, III, was selling heroin from an apartment in Baton
Rouge, Louisiana, and that the informant had seen Clark with a handgun on
numerous occasions as a passenger in Clark’s vehicle. Detective Burtwell used
the informant to execute a controlled purchase of heroin from Clark, and
thereafter on October 3, 2014, BRPD obtained a search warrant for Clark’s
apartment and for any vehicles on the premises.
      On October 7, 2014—prior to the execution of the search warrant—
BRPD officers were conducting surveillance of the apartment when they
observed Clark and another individual leave the apartment, enter Clark’s
vehicle, and drive away. The officers followed the car for some distance, at
which point they communicated with Detective Burtwell, who ordered them to
“shut him down.” The officers pulled the car over on a public road, placed Clark
and his passenger in handcuffs, advised them of their Miranda rights, and
informed them of the investigation. The officers conducted a preliminary pat-
down search of Clark and his passenger for weapons, but Clark’s vehicle was
not immediately searched. Fifteen to thirty minutes following the stop, the
officers brought the two suspects and the vehicle back to Clark’s apartment.
BRPD executed the search warrant of Clark’s apartment, discovering, inter
alia, a handgun. During this period, Detective Burtwell and other BRPD



      1 The informant had previously provided Detective Burtwell with information leading
to narcotics seizures and felony arrests.
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                                       No. 15-30838
officers also searched Clark’s person and vehicle, discovering one gram of
heroin on Clark’s person and twenty-two ounces of heroin under the driver’s
seat of Clark’s vehicle.
       Clark was indicted on one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possession with
intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Clark moved
to suppress the evidence discovered on his person and in his vehicle. The
district court granted the motion, finding that the search warrant could not be
the basis for searching Clark or his vehicle because Clark had left the
immediate vicinity of the premises that were the subject of the search warrant.
The district court further determined that the search of Clark and his vehicle
could not be justified as a search incident to a probable cause arrest because
such a search implied contemporaneity between the facts establishing probable
cause and the arrest. 2 The district court also found that the seizure of Clark’s
vehicle could not be justified as a lawful traffic stop.                 The district court
therefore concluded that the evidence found on Clark’s person and in his
vehicle were obtained unlawfully and suppressed the evidence. ROA.80. The
United States timely appealed. ROA.103–14.
                            II. STANDARD OF REVIEW
       “When examining a district court's ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error.” United
States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009). Because the existence of
probable cause is a mixed question of fact and law, “[t]his Court reviews the
factual findings underlying the district court’s probable cause determination
for clear error, but reviews the legal question of whether those facts establish



       2 The district court noted that “the outcome of [its] ruling likely would have been quite
different had BRPD obtained an arrest warrant.”
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                                      No. 15-30838
probable cause de novo.” Id. at 103. We review the evidence in the light most
favorable to the prevailing party: Clark. United States v. Santiago, 410 F.3d
193, 197 (5th Cir. 2005).
             III. SEARCH INCIDENT TO A LAWFUL ARREST
       On appeal, the Government contends that BRPD discovered the heroin
on Clark’s person and in his vehicle as part of a search incident to a probable
cause arrest. 3 “We have long known that law enforcement officials may arrest
an individual in a public place without a warrant if they have probable cause
to believe that the individual committed a felony.” United States v. Garcia,
179 F.3d 265, 268 (5th Cir. 1999). And “[p]robable cause exists when the facts
available at the time of the arrest would support a reasonable person's belief
that an offense has been, or is being, committed and that the individual
arrested is the guilty party.” Hearn, 563 F.3d at 103 (quoting Hart v. O’Brien,
127 F.3d 424, 444 (5th Cir. 1997)).               Whether probable cause exists is
determined based on the totality of the facts and circumstances. United States
v. Zavala, 541 F.3d 562, 575 (5th Cir. 2008).                In the instant matter, a
confidential informant communicated to Detective Burtwell that Clark was
selling heroin out of his apartment, and that information was corroborated by
a subsequent controlled purchase. See United States v. De Los Santo, 810 F.2d
1326, 1336 (5th Cir. 1987) (holding that police had probable cause to arrest a
suspect based on corroborated information provided by an informant). Based
on the totality of the circumstances, probable cause existed for BRPD officers
to arrest Clark. 4



       3  The Government expressly abandoned on appeal any arguments that the search of
Clark’s person and vehicle were justified as based on the search warrant or as pursuant to a
traffic stop.
        4 The detention of Clark constituted an arrest because no “reasonable person would

have believed that he was free to leave” after being handcuffed, given Miranda warnings,
and transported by police officers. United States v. Massi, 761 F.3d 512, 522 (5th Cir. 2014)
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                                      No. 15-30838
       The district court’s conclusion that there must be contemporaneity
between the evidence supporting probable cause and the arrest is unsupported
by precedent. Neither of the cases cited by the district court—Maryland v.
Pringle, 540 U.S. 366 (2003), or Blackwell v. Barton, 34 F.3d 298 (5th Cir.
1994)—requires such contemporaneity; rather, both cases explain that
probable cause exists if the facts prior to arrest provide an officer with a
reasonable belief that a suspect had committed an offense. See Pringle, 540
U.S. at 369–74; Blackwell, 34 F.3d at 303. Moreover, the Supreme Court has
recognized that “[t]he necessary inquiry . . . [is] not whether there was a
warrant or whether there was time to get one, but whether there was probable
cause for the arrest.” United States v. Watson, 423 U.S. 411, 417 (1976). After
discussing the permissibility of warrantless arrests based on probable cause,
the Watson Court upheld the warrantless arrest of the defendant, even though
the arrest took place approximately six days after probable cause for the arrest
was first obtained and the Government never sought an arrest warrant. Id. at
412–13, 423–424.
       Furthermore, we have previously recognized that “when probable cause
exists, the timing of an arrest is a matter that the Constitution almost
invariably leaves to police discretion.” United States v. Willis, 304 F. App’x
256, 258 (5th Cir. 2008) (per curiam) (unpublished) (quoting United States v.
Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999)). Thus, probable cause existed
to arrest Clark because the earlier tip from the confidential informant and the
controlled purchase provided BRPD with facts that “would support a
reasonable person’s belief that an offense ha[d] been . . . committed and that


(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Furthermore, while BRPD
officers other than Detective Burtwell initially arrested Clark, those officers had probable
cause to arrest Clark based on his previous heroin sales because the officers were in
communication with Detective Burtwell. See United States v. Ibarra, 493 F.3d 526, 530 (5th
Cir. 2007) (discussing the collective knowledge doctrine).
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                                        No. 15-30838
the individual arrested [was] the guilty party.” 5               Hearn, 563 F.3d at 103
(quoting Hart, 127 F.3d at 444).
       Once police make a lawful arrest, a full search of a person incident to the
arrest “requires no additional justification” and constitutes a reasonable
search under the Fourth Amendment. United States v. Robinson, 414 U.S. 218,
235 (1973); accord United States v. Johnson, 445 F.3d 793, 795 (5th Cir. 2006). 6
Similarly, police may also search a vehicle incident to arrest “when it is
reasonable to believe that evidence of the offense of arrest might be found in
the vehicle.” Arizona v. Gant, 556 U.S. 332, 343 (2009). In the present case,
BRPD police officers lawfully searched Clark’s person incident to the lawful
arrest and Clark’s vehicle based on the belief that they would find evidence
related to the distribution of heroin. 7 The district court therefore erred in
granting Clark’s motion to suppress the evidence from those searches.




       5  Even though Clark was arrested approximately four to six days after the controlled
purchase, Clark has not pointed to any subsequently discovered facts discrediting the
confidential informant or the controlled purchase. See 2 Wayne R. LaFave, Search and
Seizure § 3.7(a) (5th ed. 2015) (“Assuming no contrary facts later come to light, this probable
cause [to arrest] will continue to exist for an indefinite period.”); cf. Watson, 432 U.S. at 431
n.5 (Powell, J., concurring) (noting that an arrest warrant could become stale because “the
original grounds supporting the warrant could be disproved by subsequent investigation”).
        6 While the Supreme Court’s recent decision in Bailey v. United States, 133 S. Ct. 1031

(2013), prohibits the search warrant from serving as a valid basis for searching Clark’s person
and vehicle because Clark “ha[d] left the immediate vicinity of a premises to be searched,”
id. at 1043, the lawfulness of Clark’s arrest was founded on a basis recognized explicitly by
Bailey, see id. at 1042 (“If officers elect to defer the detention until the suspect or departing
occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other
standards, including, of course . . . an arrest based on probable cause.”).
        7 Even though the search of Clark’s vehicle occurred approximately fifteen to thirty

minutes after Clark’s lawful arrest, “[a] search is incident to an arrest for ‘as long as the
administrative process incident to the arrest and custody have not been completed.’” United
States v. Curtis, 635 F.3d 704, 712 (5th Cir. 2011) (quoting United States v. Finley, 477 F.3d
250, 260 n.7 (5th Cir. 2007)).
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                                  No. 15-30838
                                IV. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s order
granting the motion to suppress and REMAND for further proceedings
consistent with this opinion.




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