Officer Safety Concerns Justified Warrantless Search of Truck
On January 23, 2003, at about 3:00 a.m., James Bryan (Macine Gun)Dennison was in his gold truck, with camper shell, hanging out with his pal, Keith Allen, in the parking lot of an apartment complex in Englewood, Colorado after having been involved in a "domestic" with his girlfriend. Mr. Dennison and Mr. Allen had five handguns, three rifles, three shotguns, and two machine guns on board, as well as some drug paraphernalia. Mr. Allen had four outstanding felony warrants. When an Englewood officer came by to investigate, he found the warrants for Mr. Allen and searched the truck. The feds charged Mr. Dennison with possession of the machine guns. The Tenth Circuit affirmed the denial of Mr. Dennison's motion to suppress. United States v. Dennison, 04-1062 (June 8, 2005).
The Tenth Circuit had to stretch to get Machine Gun Dennison. The opinion involves issues related to searches incident to arrests, protective sweeps, and reasonable suspicion when in the company of others.
The defendant challenged the initial detention. An officer had asked the defendant what he was doing in the apartment complex. Dennison was waiting for a tow truck to tow his other truck before his girlfriend could bash the bejesus out of it. The officer came around a second time after realizing he had heard a call for a domestic violence offender driving a gold station wagon. The officer asked for and received identification from the men. The officer discovered the warrants for Mr. Allen and arrested him. One warrant was for a violent crime and another was for a weapon's violation. The Tenth Circuit approved the investigative stop, because of the high crime area, the time of morning, the distance of the men's location from the truck, and the unusual nature of the activity.
The Tenth Circuit stretch comes in the search of the car. The district court approved the search based on a search incident to the arrest of Mr. Allen. The problem was that the government failed to show that Allen was still on the scene when police searched the truck. Thus, the Tenth Circuit said no valid search incident to an arrest.
A search incident to an arrest pre-supposes that the arrestee remains on the scene:
"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981) (emphasis added). This court has concluded, however, that "[a] warrantless search incident to arrest is not valid if it is 'remote in time or place from the arrest.'" United States v. Lugo, 978 F.2d 631, 634-35 (10th Cir. 1992) (quoting Chimel v. California, 395 U.S. 752, 764 (1969)). A search incident to arrest is unlawful when a suspect is arrested, removed from the scene, and en route to the police station when the search of the arrestee's passenger compartment begins. Id. at 635.
So the Tenth Circuit went stretching for another basis for the search. The Tenth Circuit approved the search of Mr. Dennison's truck because his passenger, Mr. Allen, was a bad dude:
Like [United States v. Maddox, 388 F.3d 1356, 1359-60 (10th Cir. 2004)], officers here were assisting in the late-night arrest of a potentially dangerous suspect in a high-crime area. Though occupants in Mr. Dennison's truck did not outnumber officers, the scene remained dangerous; at 3:00 a.m., officers could not see inside Mr. Dennison's truck, and they knew that Mr. Allen had multiple arrest warrants. Because a Long investigation "at close range" requires an officer to make a "quick decision as to how to protect himself and others from possible danger," the Supreme Court does not require "that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 24, 28); see also Thornton v. United States, 124 S. Ct. 2127, 2137 (2004) (Scalia, J., concurring) ("When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment.").
The Court distinguished its holding from Ybarra v. Illinois, 444 U.S. 85, 91 (1979), where the Supreme Court warned that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to a probable cause to search that person." And analogized its holding to Maryland v. Pringle, 540 U.S. 366 (2003) which it contends "allows officers under certain circumstance to find probable cause of a joint illegal enterprise absent particularized suspicion".
The Court admits, however, that Machine Gun Dennison was a gentleman. The lesson may be that you can go to a bar and maintain your privacy (Ybarra), but if you're riding with a bad hombre, you've given up your Fourth Amendment rights.
