Appeal from the Superior Court of the District of Columbia (CF2-6165-07) (Hon. Brian F. Holeman, Motion Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior Judge.*fn1
The United States appeals from the suppression of evidence in its prosecution of Donte Scott for simple possession of marijuana and possession with intent to distribute cocaine. The police recovered the marijuana and the cocaine in separate searches after they arrested Scott for selling drugs in plain view of an undercover police officer. The government claims that the trial court erred in ruling that each seizure violated Scott's rights under the Fourth Amendment. We agree with the government as to the cocaine, but not as to the marijuana.
The marijuana was discovered first, in a car parked near the site of Scott's drug transaction. Police searched the vehicle, without a warrant, after finding the keys to it in Scott's possession and learning that he had been using the car with its owner's permission. Although we do not adopt the trial court's stated rationale, we uphold its conclusion that the search of the car violated Scott's Fourth Amendment rights. Contrary to the government's contentions, the record cannot support a finding that Scott relinquished his legitimate expectation of privacy in the vehicle by disclaiming ownership of it; and the evidence of record supports the trial court's implicit determination that the police lacked probable cause to search the car.
The cocaine was found after Scott was transported to the police station. There the police required Scott to submit to a full strip search, which culminated in the discovery of a packet of cocaine on Scott's buttock. The trial court ruled that the strip search and ensuing seizure of the packet violated Scott's Fourth Amendment rights. We disagree. Despite its intrusiveness, a strip search for contraband (or a weapon) is permissible as part of a search incident to a lawful arrest if the search is supported by reasonable suspicion and conducted in a reasonable manner. Those conditions were met in this case. And where, as here, a lawful strip search reveals evidence that can be removed from the outer surface of the arrestee's body without posing any threat to the arrestee's health or safety, the Fourth Amendment permits the police to seize that evidence immediately, without interrupting the search procedure to obtain a warrant.
The facts relevant to Scott's arrest and the ensuing searches of his car and person were elicited at a pretrial evidentiary hearing on his suppression motion. The sole witness at that hearing was Officer Robert Schagnon of the Metropolitan Police Department (MPD). We understand the trial court to have credited Officer Schagnon's testimony in full. For purposes of this appeal, Scott does not dispute Schagnon's account of the events leading up to and following his arrest.
Scott was arrested in an MPD narcotics enforcement operation carried out under the joint supervision of Officer Schagnon and Lieutenant Murphy*fn2 on the evening of March 15, 2007. In the course of that operation, Schagnon testified, an undercover police officer observed Scott speak with an unidentified woman outside a convenience store in the 4000 block of South Capitol Street in Southwest Washington, D.C. Scott and the woman then entered the store together, and the undercover officer followed them inside. At the rear of the store, according to Schagnon, the undercover officer observed Scott reach behind his back "into the waistband of his pants" and pull out a single ziplock bag containing "a white rock substance," which he handed to the woman in exchange for cash. Not having observed this transaction himself, Schagnon was unable to say how far down into his pants Scott reached to retrieve the ziplock bag or how long Scott's hand remained in the back of his pants.
The undercover officer left the convenience store to report what he had seen. Moments later, a team of uniformed officers entered the store and detained Scott there. (The police did not stop the woman who had been with Scott.) The officers conducted a "field search" of Scott's person and found $313 in cash and the keys to a Lexus automobile, but no drugs. Although Officer Schagnon did not observe the field search, he testified at the suppression hearing that the officers would have patted Scott down and looked inside his pockets but would not have put their hands inside the back of his pants, because "[w]e don't do half strip searches on the scene. . . . [W]e do not pull down pants on the scene or reach on the scene into private areas."*fn3
B. The Search of the Lexus
In addition to finding the Lexus car keys in Scott's possession, the police noticed a Lexus parked approximately thirty feet from the convenience store in an adjacent parking lot. Officer Schagnon testified at the suppression hearing that "Scott initially said he didn't have a car there and then later retracted it and said that the Lexus that was parked outside wasn't his car," but rather belonged to his cousin, Stephan White, who was working at a pizza restaurant four doors down from the convenience store in the same block. In his suppression hearing testimony, Schagnon did not state what the police asked Scott to elicit his initial statement that he "didn't have a car there."
Schagnon added, though, that Scott "volunteered" the information that his cousin owned the Lexus.
Upon receiving that information, Schagnon went to the nearby pizza restaurant and met with White. White confirmed that he owned the Lexus and told Schagnon he had been allowing his cousin Scott to "use" the automobile "for the past several months." Schagnon did not testify whether White said Scott had exclusive use of the Lexus or was using it that day.
Schagnon obtained White's consent to search the Lexus. The police then entered the vehicle, using one of the keys they had taken from Scott to do so. Above the driver's-side visor, the officers found mail addressed to Scott. On the driver's-side floor board they found "a small quantity" of marijuana.
At the suppression hearing, Schagnon agreed that "the only reason" the police searched the Lexus was that they found a key to it in Scott's possession. The police had no "specific information" indicating the presence of a stash of drugs or other contraband in the automobile, and no officer had seen Scott exit the Lexus or have any contact with it. There is no evidence in the record that it was Scott rather than his cousin who had parked the car in the lot next to the convenience store; nor does the record make clear that Scott knew the vehicle was there before the police questioned him about it.
After the Lexus was searched, Officer Schagnon and Lieutenant Murphy transported Scott to the MPD's Seventh District station. The two officers believed a strip search of Scott was justified by the undercover officer's observation that Scott had retrieved the ziplock bag containing suspected crack cocaine by reaching into the back of his pants at the waist -- an area the "field search didn't allow us to search," Schagnon testified at the suppression hearing. In his experience, Schagnon testified, "it's common for drug dealers to secret[e] drugs . . . underneath [their] groin and in their rectum area."
Pursuant to MPD prisoner search guidelines, Schagnon and Murphy requested and received authorization from the District Commander to perform a strip search of Scott, which the two men then conducted in a private and secure area in the police station.*fn4 The officers directed Scott to remove his clothing one piece at a time. As he did so, the officers visually inspected Scott and the article of clothing for contraband. Eventually, having discovered nothing incriminating, the officers instructed Scott to remove his underwear. At this point Scott stood naked before them. The officers found nothing in his underwear and saw nothing on his body. They then instructed Scott to place his hands on his chest, turn with his back toward them, and bend forward from the waist. When Scott complied, the officers ...