En Banc June 30, 2015
Appeal from the Superior Court of the District of Columbia
Criminal Division (CF2-10190-13) (Hon. Robert I. Richter,
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.
Deahl, Public Defender Service, with whom James Klein and
Samia Fam, Public Defender Service, were on the brief, for
BEFORE: Washington, Chief Judge; and Glickman, Fisher,
Blackburne-Rigsby, Thompson, Beckwith, Easterly and McLeese,
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
and ADJUDGED that the matter on appeal is reversed and
remanded for further proceedings.
McLeese Associate Judge.
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.
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.
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.
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
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
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). 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).
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).
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
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.
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).
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).
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.").
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.
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
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
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.
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.
we hold that a Gant evidence search can be lawful
even if the search precedes arrest.
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.
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).
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).
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.
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
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.
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.
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.
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
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