UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 18-cr-180-1-SM Opinion No.

Matthew G. Wilson

O R D E R

Defendant moves to suppress evidence found in a backpack in

his possession when he was arrested on an outstanding warrant,

as well as derivative evidence. He contends that the backpack

was searched without a warrant, and the search was not otherwise

reasonable under any recognized exception to the Fourth

Amendment’s warrant requirement. The government objects,

arguing that the warrantless search was plainly lawful under the

“search incident to arrest” exception or, alternatively, under

the “inventory” exception. After an evidentiary hearing on the

motion, the court invited additional briefing on a specified

issue: Whether the “inevitable discovery” rule operates to

render the evidence admissible even if it had been improperly

seized initially.

Background

Rochester Police officers responded to a complaint about a

domestic disturbance outdoors, near some local woods. Near the

wood line, the officers came upon the defendant and a woman who

1 fit the descriptions given. The officers stopped them to

investigate. Defendant identified himself as Christopher

Landry, but could not provide a social security number or any

other identifying information. The officers performed a cursory

pat down search of defendant’s person to ensure that he had no

weapons, and, in the process, reached into his pockets and

removed a lighter, a small bag containing drugs

(methamphetamine), and a vial of testosterone. Sergeant Smith,

one of the officers, advised defendant that he would not be

charged with drug possession because that evidence was obtained

during a “pat down” (presumably conceding that he had exceeded

the permissible scope of such protective searches). Defendant

was wearing the backpack during the pat down, but it was not

searched at that time.

Defendant was with Nicole Goodwin, who appeared to the

officers to have been recently crying. She was upset. Both

defendant and Ms. Goodwin denied any criminal activity, and

denied that any assaults or domestic violence had occurred

between them.

The police officers obtained a photograph of Christopher

Landry from the dispatch officer, and it plainly was not a

photograph of the defendant. When confronted with that fact,

2 defendant still did not provide his correct identity. The

dispatch officer advised that Landry had a cousin named Matthew

Wilson who had used Landry’s name in the past, and,

significantly, that there was an outstanding arrest warrant for

Wilson. Hearing the radio transmission, another officer

reported that he was familiar with Matthew Wilson and was en

route to see if “Landry” was in fact Wilson. The officer

arrived shortly thereafter and positively identified the

defendant as Wilson. Defendant was placed under arrest on the

outstanding warrant.

Before handcuffing defendant, Officer Forrest removed

defendant’s backpack and handed it to Sergeant Smith, who took

possession of it and moved several feet away, where he opened it

and dumped the contents onto the ground. Ms. Goodwin had

attempted to obtain possession of the backpack upon defendant’s

arrest, and defendant told the officers that she could take

custody of it. But the police refused to surrender it to

Goodwin, on grounds that it remained defendant’s property.

While Smith was dumping the contents of the backpack,

Forrest was searching defendant’s person incident to his arrest.

Forrest found additional small quantities of controlled

substances, and seized defendant’s cellphone. By that point the

3 backpack had already been emptied, and Smith observed a gallon-

sized plastic bag containing what appeared to be a significant

quantity of a controlled substance. Smith promptly returned the

dumped contents to the backpack, making no effort to make a

record of the items found inside. A warrant was later obtained

authorizing a search of defendant’s seized cellphone.

Defendant was taken to the local police station, where he

gave an inculpatory statement. The backpack was inventoried at

the station by Officer Forrest, who recorded, in his police

report, a list of the items found, and noted that the drugs and

property had all been logged into evidence.

Sergeant Smith testified at the hearing that, because the

defendant was under arrest on an outstanding warrant issued by

the New Hampshire Superior Court, the officers planned, at

first, to take him to the Strafford County House of Corrections,

rather than to the Rochester Police station. And, being aware

that the House of Corrections would not take “bulk items” like

backpacks, and that the Rochester Police Department would,

therefore, be securing and storing the backpack until it was

eventually returned to defendant, Smith dumped out the contents

to check for weapons and perishable items. Smith offered that

quickly inventorying the contents in this manner would also

4 permit the retrieval of phones or wallets or other non-bulk

personal items that defendant might then be allowed to take with

him to the House of Corrections. Smith said that he was also

looking for anything that might have confirmed defendant’s

identity.

The discovery of drugs on defendant's person and what

appeared to be a significant quantity of drugs in the backpack,

however, resulted in a change in plans. Defendant was not taken

to the County House of Corrections but, instead, he and his

belongings were taken to the police station for booking and

further investigation of the apparent drug possession offenses.

Discussion

The government’s first justification for the backpack’s

warrantless search — that it was reasonable under the “incident

to arrest” exception — presents a number of nuanced issues yet

to be resolved in this circuit. It is well understood that a

warrantless search is per se unreasonable under the Fourth

Amendment, unless one of a “few specifically established and

well-delineated exceptions” applies. United States v. Wurie,

(1st Cir. 2013) (quoting Arizona v. Gant,

(2009)) (internal quotation marks omitted). “One of

those exceptions allows the police, when they make a lawful

5 arrest, to search ‘the arrestee’s person and the area within his

immediate control.’”

(quoting

) (internal

quotation marks omitted).

“A custodial arrest of a suspect based on probable cause is

a reasonable intrusion under the Fourth Amendment; that

intrusion being lawful, a search incident to the arrest requires

no additional justification.” United States v. Robinson,

(1973). In Chimel v. California,

(1969), the Supreme Court determined that the search incident to

arrest exception allows a search for “any evidence on the

arrestee’s person in order to prevent its concealment or

destruction” and a search of “the area into which an arrestee

might reach in order to grab a weapon or evidentiary items.”

Chimel, at 763. The exception is based upon the need to ensure

the safety of police officers, and to ensure preservation of

evidence that might otherwise be lost or destroyed. Id.; Gant,

at 339. Accordingly, a search of the “person” incident to

arrest is always justified by the arrest, and a search of an

area into which an arrestee might reach is permitted as

necessary to provide for the safety of officers or the

preservation of evidence.

6 But searches of areas into which an arrestee might reach

that cannot be justified on those grounds — officer safety or

preservation of evidence — do not come within the “incident to

arrest” exception. United States v. Chadwick,

(1977), abrogated on other grounds by California v. Acevedo,

(1991). “In Chadwick, the court struck down

warrantless searches of ‘luggage or other personal property not

immediately associated with the person of the arrestee’ that the

police have ‘reduced . . . to their exclusive control,’ because

such searches are not necessary to preserve destructible

evidence or protect officer safety.

.” Wurie, at

6; see also

(“If there is no possibility that an

arrestee could reach into the area that law enforcement officers

seek to search, both justifications for the search-incident-to-

arrest exception are absent and the rule does not apply.”).

As noted recently by the Tenth Circuit, “[w]hether a search

[incident to arrest] is ‘of the person’ or of the area within

the arrestee’s ‘immediate control’ — that is, the ‘area from

within which he might gain possession of a weapon or

destructible evidence — is a critical distinction.’” United

States v. Knapp,

(10th Cir. 2019) (quoting

Chimel at 763). The Supreme Court “later reinforced this

distinction, albeit in dicta, by noting that arrests create a

7 reduced expectation of privacy in an arrestee’s person, but not

in possessions within her immediate control.”

(quoting

Chadwick, at 16 n.10). The Tenth Circuit concluded that the

better rule recognizes that searches of the person incident to

arrest extend properly to searches of an arrestee’s clothing,

including containers concealed under or within her clothing.

. But visible containers in an arrestee’s hand or

possession, like a purse, or the backpack at issue here, “are

best considered to be within the area of an arrestee’s immediate

control — thus governed by Chimel — the search of which must be

justified in each case [unlike the search of an arrestee’s

person].”

That does seem to be the better rule, and under it, the

question becomes whether, in this case, the backpack was within

the area that the arresting officers could “reasonably have

believed . . . [defendant] could have accessed . . . at the time

of the search.” Knapp,

(quoting Arizona v.

Gant,

(emphasis added)). The Third Circuit also

construes Gant as “focusing attention on the arrestee’s ability

to access weapons or destroy evidence at the time of the search,

rather than at the time of the arrest, regardless of whether the

search involved a vehicle.”

(citing United States v.

Shakir,

(3rd Cir. 2010)).

8 As in United States v. Leo,

(7th Cir.

2015), it is inconceivable that, at the time of the search at

issue here, defendant could have lunged for the backpack, opened

it, and grabbed a weapon contained in it, or destroyed drugs or

other evidence of a crime. Defendant was in the physical

custody of Officer Foster, was handcuffed, was undergoing a

search of his person, and was in close proximity to and under

the control of other officers as well. The backpack had been

taken by Sergeant Smith and moved far enough away from

defendant, that, as Sergeant Smith candidly testified, defendant

could not have accessed the backpack or its contents before it

was searched. The search, then, would not pass muster under the

Fourth Amendment’s search-incident-to-arrest exception, at least

not under the analytical framework adopted by the Tenth Circuit.

The Court of Appeals for this circuit has yet to weigh in

on the distinctions to be drawn between time of arrest and time

of search, or with respect to whether the search of an

arrestee’s person necessarily includes searches of any visible

containers, like purses, briefcases, boxes, or backpacks, that

the arrestee might be touching or carrying when arrested, or

whether separating such a container from the arrestee, moving it

out of the arrestee’s reach, and securing it, obviates any need

9 to immediately search for possible weapons or to preserve any

potential evidence.

These are all distinctions about which courts can and do

disagree. The governing principles are, to say the least,

evolving. The government’s position here is not entirely

without merit, of course, and one might well think it passing

strange that a backpack or briefcase within an arrestee’s

possession when the arrest is effected is searchable incident to

arrest if (and while) the arrestee is close enough to it to grab

or access it, but is not searchable incident to the arrest if

the police move it out of his or her reach before executing the

search. Surely the operative rule cannot be that the container

must be searched within the risk zone in order to satisfy both

Chimel’s purposes and Gant’s seeming temporal trigger (time of

search rather than time of arrest).

Nevertheless, the “better rule” described above will, in

most cases, encourage police to separate arrestees from carried

baggage, backpacks, purses, etc., to eliminate any potential

safety risk, secure them, and, absent some other exigent

circumstance, seek a warrant authorizing a search for evidence

contained within. The law in this circuit with respect to these

discreet issues, as noted, is neither clear nor fully developed,

10 and, applying the better rule noted above, the backpack search

would not pass muster under Chimel and Gant. But, it is not

necessary here to further expound upon or resolve those issues,

because the evidence discovered and seized is otherwise

admissible.

Inventory Search

The government’s alternative justification for the

warrantless search is that it was reasonable under the

“inventory” exception. Inventory searches, carried out

routinely in accordance with a standardized policy setting out

reasonable criteria, are reasonable searches under the Fourth

Amendment, notwithstanding the absence of a warrant. Boudreau

v. Lussier,

(1st Cir. 2018); United States v.

Richardson,

(1st Cir. 2008).

The Rochester Police Department does have a written

standardized inventory search policy. It provides in relevant

part that:

During the booking process, Rochester Police Officers shall conduct an inventory search of all prisoners. The purpose of this search is threefold: 1) to protect the property of the prisoner, 2) to protect the Rochester Police Department and its members against unwarranted claims of lost or stolen property, and 3) to protect the officer(s) from potential dangers.

11 The inventory search shall include the body and clothing of any person taken into custody, any property they have on their possession at the time of their arrest or detention, including any closed or locked containers.

See Rochester Police Dept. Policy #1.2.4, Ex. No. 1, Docket

No. 22.

The policy appropriately establishes a regular and

routine practice of searching and inventorying all property

in the possession of an arrestee at the time of his or her

arrest. 1 It also unambiguously provides that the inventory

will be conducted “during the booking process,” which

routinely occurs at the station (where the “book” is kept —

now likely a digital records system).

1 Defendant's backpack was seized, or taken into police custody, upon his arrest. Defendant argues that it should have been promptly handed over to Ms. Goodwin in accordance with her contemporaneous offer to take possession of it and defendant's expressed consent. Had the police done so, defendant argues, no inventory search would have been necessary and none of the factors justifying an inventory search would be relevant. But, the police properly obtained possession of the backpack upon arresting defendant, and while they could have handed it over to Ms. Goodwin, the police were not required by the Fourth Amendment to do so. Colorado v. Bertine,

(1987); Illinois v. Lafayette,

(1983); see also United States v. Coccia,

, 240 n.7 (1st Cir. 2006); United States v. Skillern,

(5th Cir. 1991).

12 Sergeant Smith probably thought the backpack search was

lawful as one incident to defendant’s arrest, but he also said

he considered it to be a field inventory search as well. As

noted, he explained that, initially, the defendant was to be

taken to the Strafford County House of Corrections (because he

was arrested based upon an outstanding Superior Court warrant),

and Sergeant Smith was aware that the County facility does not

accept bulk items like backpacks along with detainees. The

backpack, then, would have to be taken by the arresting officers

to the Rochester Police Department, after delivering the

defendant to the County facility, for inventorying and storage.

But, because defendant would be allowed to take some items with

him to the County facility (items that might be in the backpack,

like a wallet or phone), and to check for weapons, perishable

items, and perhaps evidence of identity, Smith says he began the

“inventory” process immediately on site. As it turned out, the

drugs found on defendant’s person, as well as in the backpack,

dictated a change in plans — he was taken to the Rochester

Police Station, rather than the County facility, for further

investigation and booking.

It is doubtful that the “field” inventory search, or “field

start” of the booking process, argument offered by the

government could survive serious scrutiny. The reality seems to

13 be that the backpack search was neither a bona fide inventory

search carried out in accordance with the Department’s written

policy, nor was it a bona fide inventory search carried out in

accordance with any County policy. Rather, Smith promptly

dumped the backpack contents as part of a search for inculpatory

evidence that he thought authorized as being incident to

defendant’s arrest.

While Smith may also have vaguely thought that an

“inventory” also sufficed as a backup justification, it is plain

here that the indicia of a legitimate inventory search are far

too tenuous and the contraindications far too strong to support

such a finding. Smith, for example, made no effort to identify

and record the various items in the backpack, as one would do if

legitimately conducting an inventory. Florida v. Wells,

(1990) ("The policy or practice governing inventory

searches should be designed to produce an inventory.") And the

“booking process” was hardly begun in the field. An arrest in

the field is, of course, quite distinct from the routine

administrative tasks associated with actually “booking” a

detainee. Suggesting that every arrest followed by a search of

the arrestee’s possessions is merely a geographically and

functionally displaced commencement of the Rochester Police

Department’s “booking process” is to suggest that inventory

14 searches in Rochester consist of every immediate search of a

detainee’s possessions upon arrest, whether authorized as

incident to arrest or not.

The field search, as carried out, would also not serve the

necessary underlying purposes of an inventory search (the

purposes required to justify a warrantless search under the

Fourth Amendment). Given Smith’s approach, there was no record

of what was found at the scene sufficient to provide protection

to defendant with respect to the identity of property in the

backpack, or to the police with respect to future claims of lost

or stolen property (in transit perhaps). Smith’s memory of what

he saw, alone, would hardly suffice in either context.

The field inventory search theory offered in this case has

the look of not much more than a convenient afterthought, or an

undeveloped understanding of the exception. The backpack search

conducted in this case certainly is not the type of procedure

recognizable under the inventory exception to the Fourth

Amendment’s warrant requirement. And, of course, labeling a

search as an “inventory” cannot be a “ruse for a general

rummaging in order to discover incriminating evidence.” Wells,

. The government’s justification of the

15 warrantless search as a "field inventory search" is rejected as

being unsustainable under these facts.

Inevitable Discovery

But one thing is certain. Once defendant was arrested on

the outstanding warrant, the contents of his backpack were

inevitably, without doubt, going to be searched under the

Rochester Police Department’s written inventory policy.

Defendant was properly under arrest on an outstanding warrant.

He was going to be transported to either the County facility or

the station; the backpack would be inventoried at either

destination. He was transported to the police station, where he

was going to be detained, pending local investigation of at

least the drugs discovered on his person, and pending later

delivery of his person on the Superior Court’s warrant. He was

going to be, and was, formally “booked” at the station, and, as

part of that booking process, his person, clothing, backpack,

and any other items in his possession at the time of his arrest,

were necessarily going to be searched and inventoried pursuant

to the Department’s written policy.

Evidence improperly obtained under the Fourth Amendment

may, nevertheless, be admissible, notwithstanding the

exclusionary rule, if that evidence would have been discovered

16 inevitably. In United States v. Almeida,

(1st

Cir. 2014), our court of appeals held evidence improperly

discovered in an arrestee’s wallet admissible because, like

here, an inventory search following his arrest would have

inevitably led to its discovery. See also United States v.

Babilonia,

(2d Cir. 2017); United States v.

Allen,

(8th Cir. 2013).

Under the circumstances presented here, then, it is certain

that the defendant, having been taken into custody on an

outstanding arrest warrant, and unlawful drugs having been found

on his person during a valid search incident to his arrest, was,

inevitably, going to have both his person and possessions

subjected to a routine inventory search during the booking

process related to his detention. That the backpack may well

have been searched prematurely, without a required warrant, did

not affect the inevitability of the valid inventory search

process conducted during the booking process and consistently

with the written inventory policy directives. The inventory

search at the station was both inevitable, and independent of

Sergeant Smith's field activity, would without question have

exposed defendant's possession of the drugs, and application of

the inevitable discovery rule does not, in this case, undermine

the warrant requirement of the Fourth Amendment. See United

17 States v. Zapata,

(1st Cir. 1994). Finally,

that Sergeant Smith probably had subjective investigative

motives when he dumped the backpack’s contents also had no

effect on the inevitability or regularity of the inventory

search performed at the station and discovery of the contraband.

Conclusion

For the reasons given, the defendant’s motion to suppress

(doc. no. 16) is hereby denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 10, 2019

cc: Jarad Hodes, AUSA Seth R. Aframe, AUSA William E. Christie, Esq. U.S. Probation U.S. Marshal

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