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United States v. Lewis

Court of Appeals of Columbia District

September 29, 2016

United States, Appellant,
v.
David D. Lewis, Appellee.

          Argued En Banc June 30, 2015

         On Appeal from the Superior Court of the District of Columbia Criminal Division (CF2-10190-13) (Hon. Robert I. Richter, Trial Judge)

          David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellant.

          Joshua Deahl, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellee.

          BEFORE: Washington, Chief Judge; and Glickman, Fisher, Blackburne-Rigsby, Thompson, Beckwith, Easterly and McLeese, Associate Judges.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the matter on appeal is reversed and remanded for further proceedings.

          OPINION

          Roy W. McLeese Associate Judge.

         The United States seeks review of the trial court's pretrial order suppressing evidence as fruit of an unlawful search under the Fourth Amendment. D.C. Code § 23-104 (a)(1) (2012 Repl.). We reverse and remand for further proceedings.

         I.

         The evidence presented at the suppression hearing indicated the following. At approximately 2 a.m. on June 16, 2013, United States Park Police Officer Michael Alto was driving on Ingraham Street N.W. when he saw appellee David Lewis driving a car with a non-functioning headlight. While following the car, Officer Alto determined that the car was registered to Mr. Lewis and that Mr. Lewis had a suspended license. Mr. Lewis drove a couple of blocks, pulled over into a parking spot, and started to get out of the car. Officer Alto pulled up and asked Mr. Lewis for his license and registration. Mr. Lewis opened the car door, enabling Officer Alto to see an open bottle of Patrón tequila in the center-console cup holder. The bottle was half full. Mr. Lewis's passenger, Brittney Gibbs, said that the bottle was hers. Officer Alto told Ms. Gibbs to bring him the bottle, which Ms. Gibbs did by walking around the car and handing the bottle to Officer Alto.

         After confirming that Mr. Lewis's license had been suspended, Officer Alto put Mr. Lewis in handcuffs. Officer Alto did not smell any alcohol coming from Mr. Lewis or Ms. Gibbs. A second officer, Officer Brown, arrived on the scene, and Officer Alto asked her to search the car for additional open containers of alcohol. In Officer Alto's experience, "the majority of times when there is a tequila or liquor type of beverage in a vehicle, they'll be drinking through cups." Similarly, in Officer Brown's experience, people very rarely drink directly out of Patrón bottles and instead usually use cups. The officers decided to search the car, both for additional evidence of the offense of possession of an open container of alcohol (POCA) and because it was possible that Ms. Gibbs could have been permitted to drive the car away afterward, and the officers therefore wanted to make sure that there was no additional alcohol or other contraband in the vehicle.

         At the time Officer Brown arrived, Ms. Gibbs was outside the vehicle, saying that she needed to go to the bathroom. Officer Brown told Ms. Gibbs that she could not leave. Officer Brown opened the driver-side door and smelled marijuana. Officer Brown found a cup containing liquid that smelled like alcohol on the floor of the front passenger seat, and Ms. Gibbs said that the cup was hers. Officer Brown also found a loaded handgun and a box of ammunition in a bag on the back seat. Finally, Officer Brown found a cigarette containing a green plantlike substance in the passenger-side door.

         According to Officer Brown, Ms. Gibbs was not under arrest at the time the search of the car began. Once Officer Brown found the gun, she placed Ms. Gibbs in handcuffs. A subsequent search revealed a bag of marijuana in Ms. Gibbs's bra. Ms. Gibbs was arrested for POCA and possession of marijuana. Mr. Lewis was arrested for carrying a pistol without a license, possession of an unregistered firearm, possession of unregistered ammunition, and operating a vehicle with a suspended license.

         The trial court granted Mr. Lewis's motion to suppress evidence of the gun, the ammunition, and the marijuana, concluding that the officers did not have reasonable, articulable suspicion to search the vehicle for evidence of POCA. A division of this court concluded to the contrary that the officers had reasonable, articulable suspicion that there was evidence of POCA in the car. United States v. Nash, 100 A.3d 157, 164-65 (D.C. 2014).[1] The division further concluded that the search of the car was lawful as incident to Ms. Gibbs's arrest, even though the officers did not place Ms. Gibbs under arrest until after the search and it was not clear whether the officers had at the time of the search intended to arrest Ms. Gibbs. Id. at 165-68. The en banc court granted rehearing limited to the question whether the search was lawful as incident to Ms. Gibbs's arrest. United States v. Lewis, 107 A.3d 603 (D.C. 2015) (en banc).

         II.

         When reviewing a trial court's denial of a motion to suppress, we "view the evidence in the light most favorable to the prevailing party." Bennett v. United States, 26 A.3d 745, 751 (D.C. 2011) (internal quotation marks omitted). We draw all reasonable inferences in favor of upholding the trial court's ruling. Milline v. United States, 856 A.2d 616, 618 (D.C. 2004). We review the trial court's legal conclusions de novo. United States v. Taylor, 49 A.3d 818, 819 (D.C. 2012).

         "A search conducted without a warrant is per se unreasonable under the Fourth Amendment unless it falls within a few specific and well-established exceptions." Taylor, 49 A.3d at 821 (internal quotation marks omitted). Under one such exception, police officers may conduct a warrantless search of a vehicle, incident to an arrest, if they have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S. 332, 351 (2009). The issue before this court en banc is whether such a search, which we will refer to as a Gant evidence search, is lawful if (a) the search precedes the arrest for the offense at issue; and (b) it is unclear whether the officers intended to arrest the suspect before conducting the search. Although the issue has not yet arisen with much frequency, as far as we are aware every court to have considered the issue has upheld the validity of such searches. See, e.g., State v. Fizovic, 770 S.E.2d 717, 720-22 ( N.C. Ct. App. 2015) (Gant evidence search of suspect's car was lawful even though suspect was not arrested until after search and officer did not intend to arrest at time of search). The same issue has arisen in the context of other types of search incident to arrest, and the overwhelming weight of authority upholds the legality of such searches even when conducted before an arrest and in the absence of evidence that the officers subjectively intended to arrest the defendant at the time of the search. See, e.g., State v. J.J., 143 So.3d 1050, 1052 (Fla. Dist. Ct. App. 2014) (per curiam) (upholding search as lawful incident to arrest where search preceded arrest and where officer explained search as based on officer safety; no indication that officer intended to arrest at time of search); People v. Nguyen, 854 N.W.2d 223, 232-34 (Mich. Ct. App. 2014) (police lawfully searched suspect's person incident to arrest, even though search preceded arrest and officers did not believe they had probable cause to arrest at time of search), appeal denied, 863 N.W.2d 327 (Mich. 2015); State v. Sykes, 695 N.W.2d 277, 282-87 (Wis. 2005); Moffitt v. State, 817 N.E.2d 239, 246 (Ind.Ct.App. 2004); United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) ("In order to be a legitimate 'search incident to arrest, ' the search need not take place after the arrest. A warrantless search preceding an arrest is a legitimate 'search incident to arrest' as long as (1) a legitimate basis for the arrest existed before the search, and (2) the arrest followed shortly after the search. Whether or not the officer intended to actually arrest the defendant at the time of the search is immaterial to this two-part inquiry.") (citations omitted). But see People v. Reid, 26 N.E.3d 237, 239-40 (N.Y. 2014) (search of suspect's person was not lawful incident to arrest because, at time of search, suspect had not been arrested and officer had no intent to arrest suspect).

         We hold that a Gant evidence search is lawful if (a) the police have probable cause to arrest the suspect for an offense; (b) the suspect recently occupied a vehicle; (c) the police have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense; (d) at the time of the search, the police have not released the suspect or issued the suspect a citation for the offense; and (e) the suspect's formal arrest for the offense follows quickly on the heels of the search.[2]

         A.

         We turn first to whether a Gant evidence search may precede the arrest of the suspect. The Supreme Court did not decide that question in Gant. In Rawlings v. Kentucky, 448 U.S. 98 (1980), however, the Supreme Court addressed the same question in connection with the search of a defendant's person incident to arrest, stating that "[w]here the formal arrest follow[s] quickly on the heels of the challenged search of [a suspect's] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa." 448 U.S. at 111. Although Rawlings refers to both "formal arrest" and "arrest, " id, the lower courts, including this court, have consistently understood the rule announced in Rawlings to apply without regard to any distinction between formal arrest and arrest. See, e.g., Millet v. United States, 977 A.2d 932, 935 (D.C. 2009) ("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.") (internal quotation marks omitted); United States v. Powell, 376 U.S.App.D.C. 30, 32-33, 483 F.3d 836, 838-39 (2007) (en banc) ("where police had probable cause to arrest before search, it was of no import that the search came before the actual arrest") (internal quotation marks omitted; citing cases).

         The Supreme Court in Rawlings did not explain its reasons for holding that a search incident to arrest may permissibly precede arrest, but the lower courts have identified at least three. First, permitting search to precede arrest will in some cases benefit innocent suspects, because if the results of the search negate probable cause or persuade the officer not to arrest, the suspect will be spared the greater intrusion and collateral consequences of an arrest. See, e.g., State v. Overby, 590 N.W.2d 703, 706 (N.D. 1999) ("[I]f the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested.") (internal quotation marks omitted). Second, in cases in which arrest is inevitable, whether search precedes or follows arrest does not affect the degree of the intrusion on the suspect. Id. Third, courts are reluctant to micromanage the precise order in which officers who have probable cause to arrest conduct searches and arrests, particularly given the safety and other tactical considerations that can be involved. See, e.g., Anderson v. State, 553 A.2d 1296, 1301-02 (Md. Ct. Spec. App. 1989).

         Lower courts, including this court, have applied Rawlings broadly, upholding searches that preceded arrest in cases involving Gant evidence searches, searches to protect officer safety or prevent destruction of evidence, searches of a suspect's person, and searches of a vehicle. See, e.g., Powell, 376 U.S.App.D.C. at 33, 483 F.3d at 839 (upholding search of car incident to arrest where suspect had not been arrested at time of search; "Indeed, every circuit that has considered the question-save one-has concluded that a search incident to arrest may precede the arrest.") (citing cases); State v. Smith, 266 P.3d 1220, 1224 (Idaho Ct. App. 2011) (upholding Gant evidence search of car where suspect had not been arrested at time of search); Adams v. State, 815 So.2d 578, 582 (Ala. 2001) (upholding search of person incident to arrest where suspect had not been arrested at time of search but probable cause existed and arrest was "sufficiently contemporaneous"); Minnick v. United States, 607 A.2d 519, 525 n.11 (D.C. 1992) (search of purse taken from car lawful as search incident to arrest even though search preceded arrest; citing Rawlings); cf., e.g., Waters v. United States, 311 A.2d 835, 836 (D.C. 1973) ("It is well settled, however, that a search or seizure may precede an arrest, provided the officer at that point already has probable cause to arrest the possessor of the items in question.").

         Mr. Lewis does not appear to dispute that a Gant evidence search can be lawful even if the search is conducted before arrest, as long as an arrest is under way. Some of Mr. Lewis's arguments, however, seem to imply more broadly that a completed arrest must precede a Gant evidence search. In any event, we hold that, as the Supreme Court concluded in Rawlings, it is sufficient that the arrest follows quickly after the search.

         Most broadly, Mr. Lewis relies on the Supreme Court's statements that "[i]t is the fact of the lawful arrest that establishes the authority to search" incident to arrest. E.g., United States v. Robinson, 414 U.S. 218, 235 (1973). For several reasons, we do not understand this language to establish a rule that the arrest must precede a search incident to arrest. First, in the cases relied upon by Mr. Lewis the Supreme Court was not actually addressing the question whether a lawful search incident to arrest must follow the arrest. See, e.g., Robinson, 414 U.S. at 234-35 (holding that police may lawfully conduct full search of arrestee's person incident to arrest, even in absence of case-specific basis for search). Both the Supreme Court and this court have cautioned against treating such language as a dispositive holding. See, e.g., United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012) ("We have stressed, however, 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.") (internal quotation marks omitted); Porter v. United States, 37 A.3d 251, 265 n.20 (D.C. 2012) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.") (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Second, as previously noted, Mr. Lewis himself appears to concede that, despite the language upon which he relies, a completed arrest need not precede a search incident to arrest, as long as an arrest is under way. Third, interpreting that language to require an arrest to precede the search would contradict Rawlings.[3]

         On the last point, Mr. Lewis argues that the Supreme Court's statement in Rawlings is dictum. It is true, as Mr. Lewis points out, that the defendant in Rawlings did not argue in the Supreme Court that a lawful search incident to arrest must follow arrest. Brief and Reply Brief for Petitioner, Rawlings v. Kentucky, 448 U.S. 98 (1980) (No. 79-5146), 1980 WL 339599, 339603. Nevertheless, the Supreme Court's statement in Rawlings is now deeply entrenched in the law. It has been cited, and treated as a holding, in many lower-court decisions, including several decisions of this court. See, e.g., Minnick, 607 A.2d at 525 n.11; United States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) ("[A]s the Supreme Court held in [Rawlings], the search-incident-to-a-lawful-arrest rule also permits an officer to conduct a full search of an arrestee's person before he is placed under lawful custodial arrest as long as the formal arrest follows quickly on the heels of the challenged search of his person and the fruits of that search are not necessary to sustain probable cause to arrest him.") (brackets, ellipses, and internal quotation marks omitted). We have located no case in which a court has treated the statement as dictum. Moreover, well before the decision in Rawlings, the courts in this jurisdiction had adopted the principle that "a search or seizure may precede an arrest, provided the officer at that point already has probable cause to arrest the possessor of the items in question." Waters, 311 A.2d at 836 (citing Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 307 (1967)). Taken together, these considerations preclude this court from disregarding the principle announced by the Supreme Court in Rawlings. Cf., e.g., State v. Rose, 19 A.3d 985, 1012 n.21 (N.J. 2011) ("Without exploring the intricate distinctions between dictum and language necessary to decision, we conclude that we must recognize the clear, direct, explicit, and unqualified statement of the Supreme Court.") (quoting Public Serv. Co. v. General Elec. Co., 315 F.2d 306, 310 n.6 (10th Cir. 1963)); Majette v. New London Hous. Auth., No. X094CV0450000090S, 2005 WL 3112738, *5 (Conn. Super. Ct. Nov. 3, 2005) (although plaintiff argued that language from decision of Connecticut Supreme Court was dictum, "the 'dictum' has become more or less entrenched as black letter law"); Tony Andreski, Inc. v. Ski Brule, Inc., 475 N.W.2d 469, 473 (Mich. Ct. App. 1991) (Griffin, J., concurring) ("While one could argue that the statements in [an earlier decision of the Michigan Supreme Court] were mere dicta, the doctrine is too firmly entrenched to be overruled by this intermediate appellate court.").

         Somewhat more narrowly, Mr. Lewis argues that the Supreme Court's statement in Rawlings must be understood in context. Specifically, Mr. Lewis argues that an arrest was under way at the time of the search in Rawlings, and that Rawlings thus should not be read to authorize searches incident to arrest unless an arrest is at least under way. We conclude otherwise. Although it is not entirely clear what Mr. Lewis means by the term "under way, " Mr. Lewis appeared to take the position at oral argument that an arrest is under way as long as, at the time of the search, the officers intend to transport the suspect to the police station for the purpose of charging the suspect with a crime, even if the officers have not communicated their intent in any way. On that view, the question whether an arrest was under way collapses into the question whether the officers subjectively intended to place the suspect under arrest. For reasons that we explain infra, however, we conclude that such an inquiry into officers' subjective intent is foreclosed by controlling decisions of the Supreme Court.

         Mr. Lewis also suggests in a footnote that the temporal flexibility provided by Rawlings should not be extended to Gant evidence searches. We disagree. As we have already noted, every court of which we are aware to have addressed the question has applied Rawlings to Gant evidence searches. See, e.g., Smith, 266 P.3d at 1224. Moreover, each of the justifications for the Rawlings rule applies to Gant evidence searches: permitting such searches to precede arrest in some instances will benefit suspects, because the results of the search may lead to release rather than the arrest that otherwise would have occurred; as to suspects who are going to be both searched and arrested, the order of those events does not affect the degree of the intrusion; and tactical considerations may lead officers to reasonably prefer to conduct a Gant evidence search before completing an arrest.

         In sum, we hold that a Gant evidence search can be lawful even if the search precedes arrest.

         B.

         We turn next to the question whether the search in this case was lawful even though it is unclear whether, at the time of the search, the officers intended to arrest Ms. Gibbs. Based on controlling Supreme Court authority, we conclude that the search was lawful.

         The Supreme Court's "Fourth Amendment cases have repeatedly rejected a subjective approach. Indeed, [the Supreme Court has] never held, outside limited contexts such as an inventory search or administrative inspection, that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment." Fernandez v. California, 134 S.Ct. 1126, 1134 (2014) (citation, ellipses, and internal quotation marks omitted); see also, e.g., Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2080-81, 2083 (2011) (Supreme Court has "rejected every request to examine subjective intent" in Fourth Amendment setting, with exception of (a) special-needs searches, (b) administrative searches, and (c) searches conducted in absence of individualized suspicion); Brigham City v. Stuart, 547 U.S. 398, 404 (2006) ("An action is reasonable under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances viewed objectively, justify the action. . . . The officer's subjective motivation is irrelevant.") (brackets, emphasis, and internal quotation marks omitted); Devenpeck v. Alford, 543 U.S. 146, 154 (2004) ("As we have repeatedly explained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. The Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent. Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.") (brackets, citations, and internal quotation marks omitted).

         Gant evidence searches rest on particularized suspicion, because they require not only probable cause to arrest but also reasonable, articulable suspicion to believe that the vehicle to be searched contains evidence of the offense of arrest. Gant, 556 U.S. at 351. Under controlling Supreme Court law, the legality of such searches thus must be determined based on the objective circumstances, not on whether at the time of the search the officers subjectively intended to arrest the suspect. Cf. Peters v. New York, 392 U.S. 40, 66-68 (1968) (upholding search as lawful search incident to arrest; no direct evidence that officers subjectively intended to arrest suspect at time of search); id. at 68-69 (Douglas, J., concurring); id. at 70 (Fortas, J., concurring); id. at 79 (Black J., concurring).

         We are not persuaded by Mr. Lewis's arguments to the contrary. First, Mr. Lewis argues that Gant evidence searches necessarily require inquiry into officers' subjective intent, because the legality of such searches depends on the offense of arrest, which in turn depends on the subjective decision of a particular officer. The Supreme Court did not explain in Gant how courts should determine the offense of arrest for purposes of assessing the legality of a Gant evidence search. We need not delve into that issue in the present case, because Mr. Lewis does not dispute that there was a prompt arrest for POCA. We do note, however, that it is not clear that the inquiry must be subjective in character. Cf., e.g., Devenpeck, 543 U.S. at 154 (in determining whether there was probable cause to support arrest, courts are not limited to subjective grounds stated by officer). We thus do not understand Gant to have implicitly required a subjective inquiry into whether the officers intend to arrest at the time they conduct a Gant evidence search.

         Second, contrary to Mr. Lewis's contention, Knowles v. Iowa, 525 U.S. 113 (1998), is consistent with an objective approach. In Knowles, a police officer stopped Mr. Knowles for speeding. 525 U.S. at 114. The officer issued Mr. Knowles a citation even though the officer could have arrested Mr. Knowles under Iowa law. Id. The officer then searched Mr. Knowles's car, recovered a bag of marijuana and a pipe, arrested Mr. Knowles, and charged Mr. Knowles with drug offenses. Id. The Supreme Court ruled that the officer had conducted an illegal "search incident to citation" rather than a search incident to arrest. Id. at 116-19. Knowles turned on two objective circumstances. First, at the time of the search at issue, the suspect had been issued a citation rather than arrested. Second, "no further evidence of excessive speed was going to be found either on the person of the offender or in the offender's car." Id. at 118. The Knowles Court never mentioned the officer's subjective intent and in no way suggested that the Court was adopting a novel exception to its general rule against consideration of subjective intent in determining the Fourth Amendment reasonableness of searches based on particularized suspicion.

         We recognize that, under an objective approach, officers who have probable cause to arrest for a minor crime for which they would not ordinarily make an arrest might be tempted to conduct a Gant evidence search and then decide, depending on the results of the search, whether in fact to arrest. On the other hand, under the approach advocated by Mr. Lewis, officers who want to conduct a Gant evidence search might be tempted to arrest suspects for petty crimes, when they would not otherwise have done so, in order to permit such a search. It thus is unclear that the approach advocated by Mr. Lewis would be more protective of suspects' interests. In any event, the Supreme Court has held that comparable "concerns about improper motives and pretext do not justify subjective inquiries" in the context of searches and seizures resting on particularized suspicion. Al-Kidd, 131 S.Ct. at 2082. For example, the Court held in Al-Kidd that federal officials had lawfully detained terrorism suspects under the federal material-witness statute even if those officials did not intend to call the suspects as witnesses, as long as there was an objective basis for the detention. 131 S.Ct. at 2082-84. And in Brigham City, the Court held that officers may enter a home, the most protected area under the Fourth Amendment, if they have a reasonable belief that someone is in danger inside, even if the officers' subjective intent is to gather evidence or arrest suspects rather than to provide aid. 547 U.S. at 405-06.

         In sum, we hold that the legality of a Gant evidence search does not depend on whether the officers intended to arrest the suspect at the time of the search at issue.

         C.

         Mr. Lewis makes four additional arguments, which we address in turn. First, Mr. Lewis relies on the Supreme Court's statements that "an incident search may not precede an arrest and serve as part of its justification." Sibron v. New York, 392 U.S. 40, 63 (1968). Under the approach we adopt, however, the search does not provide any part of the legal justification for the arrest. Rather, the arrest must be justified by preexisting probable cause.

         Second, Mr. Lewis argues that a search cannot be incident to an arrest if the search is the cause of the arrest. See State v. Funkhouser, 782 A.2d 387, 409 (Md. Ct. Spec. App. 2001) (decision to arrest cannot be a "consequence of what was found in the search"). The Supreme Court, however, has never suggested such a principle. Moreover, such a principle would be inconsistent with the objective approach that the Supreme Court has required in contexts involving particularized suspicion.

         Third, Mr. Lewis argues that, because a search must be justified at its inception, it is impermissible for subsequent events to affect the lawfulness of a search. It is true that, under the approach we adopt, the admissibility of evidence obtained during a Gant evidence search may depend on events that take place after the search. But that is not unique to the current setting. For example, if officers executing a search warrant act within the warrant at first but then flagrantly exceed the scope of the warrant, all of the evidence seized may be subject to suppression. Cf., e.g., In re 650 Fifth Ave. & Related Props., No. 14-2027, 2016 WL 3913403, *22 n.32 (2d Cir. July 20, 2016) ("[W]hen items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items, not invalidation of the entire search, unless it is shown that those executing the warrant acted in flagrant disregard of the warrant's terms.") (internal quotation marks omitted); State v. Rindfleisch, 857 N.W.2d 456, 465 (Wis. Ct. App. 2014) (same). Thus, evidence obtained during a course of conduct that is lawful at its inception can become inadmissible based on subsequent events. That is the situation with ...


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