Legal Case Summary

And in our second case, the United States versus Davis, number 13, 4280, Mr. Rogers, whenever you're ready. Please, the court, Jimmy Rogers on behalf of Christopher Davis. Although the government in its opposition to the defendant's motion to suppress postulated so theories, justifying the search and seizure of this bag in question, the district court found, nonetheless, that Mr. Davis had abandoned the bag and therefore the search and seizure was proper. The Davis, of course, contends that the district court clearly aired when it made such a finding. Davis contends that the bag was not abandoned but was hidden and therefore he had a objective, reasonable expectation of privacy. If you look at US versus Jones and US versus Clemens, which sets out the test for abandonment, you will find that the courts have said several of the factors are the acts done by the defendant, the words spoken by the defendant and other objective factors. Here in this case, you will see that by the actions of Mr. Davis, it was clear that he was attempting to hide the bag. Please under a car in a big highway. Yes, Your Honor. If you will look at the- I'm going to be arrested by the police and there were no drivers of the car, right? Yes, but he had not been arrested. The police had to cart the car away. Yes. And it wasn't reasonable to think that when they took the car away, they would see the bag? Well, I would admit that he was attempting to hide the bag. Well, presumably they would not have found the bag under any circumstance. Do we look at what he- his subjective intent or the intent of an objectively reasonable person? Yes, Your Honor. Which one? The intent of a reasonably objective person. If you look at the dash cam video- Well, it's both, isn't it? I mean, an abandonment is simply another way of asking, did a person have a reasonable expectation of privacy? And to answer that question, you asked whether it was a subjective expectation of privacy and was it objectively reasonable? Isn't that- I do agree. It is both

. Are you going to agree with everything Judge Mott says and everything I say? I don't know if you can get away with that. No, Your Honor. Well, we generally agree. But if you will look at the dash cam video, it is clear that Mr. Davis waited until the officer was in contact with the driver directly behind the car. So that the officer's view would be obstructed by the driver. The door opens very slowly. You don't see the bag being secreted, but you do see the door closed. I contend- we contend by those factors that objectively Mr. Davis was attempting to hide the bag. What's your best case on the fact for this? Smith vs. Ohio. We think it's close. That's a Supreme Court case. Yes, Your Honor. Would they have a paragraph sort of about this? Yes, Your Honor. The procuring opinion. What happened in that case was the officer was attempting to question- It's throwing it on the- And he threw it on the roof. And the court there said that citizens have a right to attempt to protect their private property from inspection. And we contend that's what Mr

. Davis was doing here. Smith, as I recall, was actively guarding the bag here. I mean, your client simply left the bag by the side of the road. That's a different set of facts, isn't it? As I recall, in Smith, he turned his bag through the bag on to the car and then turned back to confront the officer's questions. So we contend that's the same factual scenario. Both were attempting to hide the context of the bag. The government had some other theories under which he would lose, too, didn't it? Well, we don't think so, Your Honor. Well, they had theories. They did have all the theories. If they prevailed on, you would lose. You don't agree they had theories. You just don't think they're legitimate theories. They're merit. Maybe you might want to talk about something, too. Of course, the government's first theory was that it was a search incident to an all-offal arrest. The cases have clearly said that the reason for allowing a warrantless search incident to an arrest is to protect the officer's safety from the defendant or suspect obtaining a weapon or for to prevent the defendant from hiding contraband within the car. Within the car. I know of no case that says that you can search a bag that is not in a car that's in proximity to a car. I found no cases that say that search would be based on probable cause or incident to arrest. Even if the bag that is adjacent to the car has the name on it, the same name as the defendant

. We contend that a warrant should have been obtained from a neutral and detached match that once the bag was found. I thought the government's argument was that probable cause developed at the time that the bag was in the car and that was enough to conduct this search. But the problem was that the probable cause, well, we don't believe the probable cause existed to search the bag. And this is why in a normal, let's say, drug transaction case where an officer would observe a hand to hand transaction or a sale, it would be reasonable to assume that there's more drugs present. Here, there was some loose marijuana, presumably on the driver's lap. They found a partially smoked cigarette in the open container. We contend that there was no reason to believe that there was more marijuana present. Or I know it. Because the facts do not lend itself to that conclusion. Maybe not conclusively, but all we need is probable cause more likely than not. But at the point, well, probable cause did not exist at the time the bag was hidden. Nobody was under arrest at that time and the officers had not in fact even searched the car then they searched the car later. And once it was determined that the open container and the marijuana was in the car, that's when the arrest occurred. So we contend that clearly he was trying to hide the bag. Probable cause would not cause ended. Well, I won't say probable cause ended, but under this theory of search incident to arrest, we don't think that theory prevails because both defendants were taken away from the scene. What about search of the car based on probable cause that this contraband in the car? We don't have a problem with search of the car. Okay. Would a person if he if the officer had observed him, tossed the bag from the car. Could the officer go over and pick up the bag or we contend that that's correct

. And on what theory would you, which you said it? Even if it had his name on it, Davis, do not enter. This is secret private material. I'm asserting my fourth amendment rights. The bag had all that on it. The officers could still get in it. I don't believe the officer, I believe the officer still would have had probable cause. And what's the basis for your answer? Because he saw him throw the bag. Well, wait a minute. No. Seeing somebody throw a bag is not probable cause to search a bag. It relates to the fact that the fact that the bag is in the car. And there's probable cause to search the car. And under a subito, you can search any container in a car that might contain the bag. And the car to a van for which there's probable cause to search the car. Correct. You agree with all of that? Yes. So observing an occupant of the car, toss an item, whether it's a bag or a shaving kit or a jacket or a woman's purse or man's purse or brief. Anything you toss out of the car, that item doesn't lose the toxicity of the probable cause from being in the car. That's what you're agreeing to. But I would contend that the officers act of observing him throw the bag

. Okay. Right. So it gives him level that the question in this case is when they lifted that car to tow it away. Was there reasonable, was there a reasonable basis to believe that that item that they found they were on the ground, which had been hidden by the car. Actually, came out of the car. We contend. And connection with the stop. There's no way to know that. Well, you don't have to know. You simply have to have reasonable cause to believe, right? But the fact that the name was on the bag. And they knew his name by then, right? They did. By the time they lifted the car and found the bag, they knew Mr. Davis's name. That's great. That's pretty connecting, that's connecting tissue, isn't it? But there was no reason we contend to believe that there was contraband in the bag at that point. Well, because we, we are now. Did he have to have reason to believe there's contraband in the bag separate from a belief that there's contraband in the car? You just agreed with me. I thought that if there's a reasonable belief that there's contraband in the car and there clearly was because they saw the marijuana in the car. Right. Now they can search everything, right? The glove compartment

. The console. It can't search the trunk. Oh, why can't they search the trunk? Because I think you're mixing, I think you're mixing Belton and Acevedo. Very well, young man. And Belton, of course, is no longer applicable generally, although even under Gantt, this would be a proper search incident to an arrest of the car because there was probably a cause to arrest him for possession of narcotics. But the rationale for search incident to arrest is to prevent evidence from being destroyed. And that was not present because that's fair. The defendants were nowhere on the scene. So your submission is that they could seize the bag perhaps. They could seize the bag. They had to take the bag to a to a magistrate or a judge and get a search warrant to open the bag. That's how content that's your content. Yes. The government's other position was that it was an inventory search we contend. Right. And there was inevitable discovery. And inevitable discovery. Clearly, it wasn't an inventory search because the officer had indicated she was looking for evidence that the previous officer had told her they thought marijuana was a foot. And that was the reason that she looked into the bag. We contend that the search would fail on that ground because it clearly would not be an inventory

. But inevitable discovery, they cart the car away and there's the bag. But at that point, there was no basis to conclude that there was anything of criminal nature in the bag. Well, it's underneath a car which had had people that they had taken in because they had probably caused to arrest them. But because they hadn't seen him put the bag there, they had no reason to know where the bag came from. The bag didn't know had his name on it. The person that they took away. But even though the bag had his name on it, we contend that there was still no reason to believe that the bag contained contraband. They had searched the car. They found marijuana in on the driver's lap and they found marijuana in the in the cup. So we contend that because it was not a sale situation, it was not probable cost to believe that there was more drugs of foot. They were in the car smoking a blunt. And that was it. They didn't see a bag. They didn't see him hide the bag. And once the bag was discovered, our contention is a neutral and detached magistrate should have concluded that probable cause existed to search the bag. Okay. Thank you. I think we understand your position. Thank you. Thank you

. Good morning, Mayor. Please the court. I'm Robert Daley on behalf of the United States. This is a clear cut case of abandonment. You know, I don't disagree with you. Except there is a Supreme Court case. This looks pretty close to the Smith maybe it's no longer a good law. Well, you know, I did notice that Justice Marshall said, I don't like these summary dismissals because you don't get a full record. And we do these summary reversals in that dissent. He actually says that. But if it is interesting because it's such a short snippet of the facts. But there it is. But there it is. And so there's probably three ways to look at Smith and why it's not controlling. One is it's substantively qualitatively different if an officer comes up to me and I toss a bag on top of a trunk of my car. I haven't. It's still with my car. I haven't. I haven't tried to put it somewhere out of the way. I mean, I'm still there in the case

. This case is stronger than Smith on those grounds. Under your hiding it. The whole idea is you're asserting you write to privacy rather than throwing it out for God and everyone to see it. Well, I guess it. It's a double ed sort of could go either way because he still has it right there. He hasn't let go of his property rights. If it's still there on his car. The. What would a reasonable person have done with this bag. In order to hide it from the police under the circumstances that existed at the time of the traffic stop. And not abandon it. I think it'd be a if you notice there. There's no case law that he's going to find where that where that. That's what I tell you is right. What would a reasonable person intent on hiding this item from law enforcement. Have done. Under the circumstances of the traffic stop in this case. To to not abandon it. No to hide it. Protect the existing

. Expectation of privacy. The scenarios that that come to mind the cases suggest you put it under the seat. Which you really think a reasonable person would have left it in the car. Well, no, I mean, I'm just telling you the case law what people have done. I'm not asking you about the case law. I'm asking you what would a reasonable person have done. To hide these items from a law enforcement officer making a traffic stop. Of a vehicle, a rented vehicle in which neither the driver nor this passenger apparently had the right to even have the vehicle. They didn't even have and they even have the documents showing that they were properly in possession of the vehicle. Correct. So what would a reasonable person have done under those circumstances to hide this item. They throw it out the window as far as they could. Or they try to throw it under the car as it was done here. I lack imagination because I have not found myself in this scenario before. But perhaps there's other ways. I'm, you know, some try to. So you're trying to eat it. It comes down to their stock. They either they either leave it in the car or they abandon it. Because your argument is any effort to get this item out of the car is an abandonment as a matter of law. That seems to be your position. I can't right now think of a scenario where that wouldn't be the case. So if they're trying to, to, to, to secret it away. Right. So you can't secret contraband from law enforcement when you're in a rental car that you don't have the papers for. You cannot do that as a matter of law, matter of constitutional law. You either, you either leave it in the car and let them find it in the car or anything else you do is going to constitute an abandonment. And you give up your expectation. I can't think of a scenario where that's probably not going to be the case. This case is a little stronger though. And I want to focus you on the courts, the courts decision at pages four and five, where the court focuses on the fact that when a defendant disclaims ownership of it. Of the bag. That. When did he do that here? If you look hiding it, you look in the video at about one hour or two minutes and approximately 40 seconds. The police officer comes up and says, hey, found this bag. What's what's the deal with this bag? The defendant says bag. I don't know bag. I only think about a bag. The police. You're saying he abandoned it at that point? Not when he, not when he hit it

. That seems to be your position. I can't right now think of a scenario where that wouldn't be the case. So if they're trying to, to, to, to secret it away. Right. So you can't secret contraband from law enforcement when you're in a rental car that you don't have the papers for. You cannot do that as a matter of law, matter of constitutional law. You either, you either leave it in the car and let them find it in the car or anything else you do is going to constitute an abandonment. And you give up your expectation. I can't think of a scenario where that's probably not going to be the case. This case is a little stronger though. And I want to focus you on the courts, the courts decision at pages four and five, where the court focuses on the fact that when a defendant disclaims ownership of it. Of the bag. That. When did he do that here? If you look hiding it, you look in the video at about one hour or two minutes and approximately 40 seconds. The police officer comes up and says, hey, found this bag. What's what's the deal with this bag? The defendant says bag. I don't know bag. I only think about a bag. The police. You're saying he abandoned it at that point? Not when he, not when he hit it. No, no, no, I'm saying that it is. Wait a minute, wait a minute, wait a minute. If you're going to rely on the officer's interrogation of him an hour later, I didn't know you would. I didn't understand that to be your argument. I'm not relying on that, but that is further. You're in the war line, but it's further evidence of the. Exactly, you're on. I mean, everybody could say, I mean, here's the thing. There are so many different ways that they already searched the bag at that point. They had your honor. Of course. They had your honor. Of course. Most remarkably, after they had searched it, and then he said, by the way, I found your ID inside the bag. His response? Oh, I lost my ID four or five months ago. I went down to the highway department. You know, so I mean he's. A bootstrapping work if you can get it. Well, that's all I can say. You certainly, you invade somebody's fourth amendment rights, assuming they exist

. No, no, no, I'm saying that it is. Wait a minute, wait a minute, wait a minute. If you're going to rely on the officer's interrogation of him an hour later, I didn't know you would. I didn't understand that to be your argument. I'm not relying on that, but that is further. You're in the war line, but it's further evidence of the. Exactly, you're on. I mean, everybody could say, I mean, here's the thing. There are so many different ways that they already searched the bag at that point. They had your honor. Of course. They had your honor. Of course. Most remarkably, after they had searched it, and then he said, by the way, I found your ID inside the bag. His response? Oh, I lost my ID four or five months ago. I went down to the highway department. You know, so I mean he's. A bootstrapping work if you can get it. Well, that's all I can say. You certainly, you invade somebody's fourth amendment rights, assuming they exist. An hour later, you come and interrogate them. By the way, was he Miranda's? He was. Yes, yes. So he was Miranda's and then he's, and then he's questioned about the bag. And you want to bootstrap an invasion of a privacy interest an hour earlier by what he says an hour later denying any ownership. And yet you say here in a war argument, no, I'm not really relying on that in response to Judge Mike. You said, well, that just confirms what we think to be true from him hiding the bag under the car in the first place. It's further evidence that it was, it was objectively not reasonable. I mean, he was, he was getting rid of the back cases. I've had cases. I won't speak for my colleagues in which law enforcement officers didn't arrest a person in a car under these circumstances. Right? Sure. So he hid the bag before he was arrested. No question about that. Yes, yes, you're on. And in fact, he hid the bag according to the argument here. He hid the bag before the officer even developed probable cause to arrest. Would you admit that? No, he had already, he had already smelled the marijuana and viewed the marijuana leaves on the driver's lap at that. He saw that the first minute or two. The, the bag gets put underneath the court found it about 13 minute mark of the video

. An hour later, you come and interrogate them. By the way, was he Miranda's? He was. Yes, yes. So he was Miranda's and then he's, and then he's questioned about the bag. And you want to bootstrap an invasion of a privacy interest an hour earlier by what he says an hour later denying any ownership. And yet you say here in a war argument, no, I'm not really relying on that in response to Judge Mike. You said, well, that just confirms what we think to be true from him hiding the bag under the car in the first place. It's further evidence that it was, it was objectively not reasonable. I mean, he was, he was getting rid of the back cases. I've had cases. I won't speak for my colleagues in which law enforcement officers didn't arrest a person in a car under these circumstances. Right? Sure. So he hid the bag before he was arrested. No question about that. Yes, yes, you're on. And in fact, he hid the bag according to the argument here. He hid the bag before the officer even developed probable cause to arrest. Would you admit that? No, he had already, he had already smelled the marijuana and viewed the marijuana leaves on the driver's lap at that. He saw that the first minute or two. The, the bag gets put underneath the court found it about 13 minute mark of the video. So there's already probable cause. But not yet. There was not yet a rest. He was waiting for backup to come and you'll see right at about the 13 through 14, 15 minute mark. He pulls the driver out. The backup arrives. The door, the passenger door opens up for about eight seconds and then. And was the rest based on Pringle? Essentially. In other words, the idea that you can arrest everybody in a car. If you find a marijuana cigarette in the car, well, the arrest of Mr. Davis was. Could be both that and the open container. Open container with the roach in the in the car. He had a, what do you have a beer? They had, well, I had a bottle of gray goose vodka and then two cups that had. The alcohol and they both admitted it. And in one of those cups was a leftover roach marijuana. Okay. Can I ask you to go back? You were in the middle of distinguishing or. Trying to distinguish the Supreme Court case. Right

. So there's already probable cause. But not yet. There was not yet a rest. He was waiting for backup to come and you'll see right at about the 13 through 14, 15 minute mark. He pulls the driver out. The backup arrives. The door, the passenger door opens up for about eight seconds and then. And was the rest based on Pringle? Essentially. In other words, the idea that you can arrest everybody in a car. If you find a marijuana cigarette in the car, well, the arrest of Mr. Davis was. Could be both that and the open container. Open container with the roach in the in the car. He had a, what do you have a beer? They had, well, I had a bottle of gray goose vodka and then two cups that had. The alcohol and they both admitted it. And in one of those cups was a leftover roach marijuana. Okay. Can I ask you to go back? You were in the middle of distinguishing or. Trying to distinguish the Supreme Court case. Right. And you said. You said you said you first had the first factual thing, which I think goes. He wasn't trying to get rid of the bag would be, would be the argument that when he put it on. He was simply placing it to the side because the officer was addressing him. At least that certainly is, is one way to look at it. The Supreme Court case. He was, he threw it over his shoulder. But he tossed it on the hood of the car. On the hood of a car and as I say in front of God and everyone, this man at least put it under. So it was covered in some fashion. Okay. So that's your first distinction. But I mean, I said there were three grounds. Well, I understand that one. I'm not sure. Okay. I just, just, when you don't toss it out of the way, if everyone still sees it, you have an abandon it is my point. That's the first one. The second one is unlike the Smith case. Here, there's no, and I know Judge Davis doesn't like the fact this happens afterwards

. And you said. You said you said you first had the first factual thing, which I think goes. He wasn't trying to get rid of the bag would be, would be the argument that when he put it on. He was simply placing it to the side because the officer was addressing him. At least that certainly is, is one way to look at it. The Supreme Court case. He was, he threw it over his shoulder. But he tossed it on the hood of the car. On the hood of a car and as I say in front of God and everyone, this man at least put it under. So it was covered in some fashion. Okay. So that's your first distinction. But I mean, I said there were three grounds. Well, I understand that one. I'm not sure. Okay. I just, just, when you don't toss it out of the way, if everyone still sees it, you have an abandon it is my point. That's the first one. The second one is unlike the Smith case. Here, there's no, and I know Judge Davis doesn't like the fact this happens afterwards. But he says, it's not my bag in this case. That was not the case in Smith. In fact, the effectively object to the search of his bag. Excuse me. Didn't he have in Smith? Yes. He was, he was, I don't know if it was a struggle because again, it's a summary disposition. But it appears that the police officer pushed him out of the way. So he's asserting some ownership of that, of the bag while that struggles happening. Then the third thing is we find ourselves in a different place in this case. In Smith, the high-out court had already found there was no abandonment. Whereas here we have the district court having found abandonment. So there have been a finding. Right. Right. And the Supreme Court just agreed with the, in some ways, I don't want to say that it was identical to here, but where there wasn't a clear error in finding that. Again, it was an alternative ground that just was thrown in. The state did not, how it didn't have a good argument for the primary issue that was before the Supreme Court in that case. So anyway, it's a peculiar case. When I came across it, I saw it as a peculiar case. It appears to still be good law

. But he says, it's not my bag in this case. That was not the case in Smith. In fact, the effectively object to the search of his bag. Excuse me. Didn't he have in Smith? Yes. He was, he was, I don't know if it was a struggle because again, it's a summary disposition. But it appears that the police officer pushed him out of the way. So he's asserting some ownership of that, of the bag while that struggles happening. Then the third thing is we find ourselves in a different place in this case. In Smith, the high-out court had already found there was no abandonment. Whereas here we have the district court having found abandonment. So there have been a finding. Right. Right. And the Supreme Court just agreed with the, in some ways, I don't want to say that it was identical to here, but where there wasn't a clear error in finding that. Again, it was an alternative ground that just was thrown in. The state did not, how it didn't have a good argument for the primary issue that was before the Supreme Court in that case. So anyway, it's a peculiar case. When I came across it, I saw it as a peculiar case. It appears to still be good law. It's not been overruled. So, moving on, by chance, abandonment didn't persuade us. Do you believe this? This is a law school, this felt like a law school exam as I was going through the possibilities. Standing, the wellens case. Excuse me. The wellens case, and a couple of cases since them, have clearly held that wellens, I think, was actually a rental car that both the driver in, in this case, even more attenuated the passenger of a car that's a rental car to which you are not authorized to drive or be in. You don't have a reasonable expectation of privacy. You don't have standing. You just don't have standing. And of course this isn't found in the car. Well, and that's where I think the factual finding that has not been attacked, that the judge says it was in the car at the time. And as I believe Judge Davis said, the probable cause arose while the bag was in the car. And so, are we to say that you can circumvent a USB, a Ross and the Wyoming Supreme Court case where you're allowed to, to search all those containers within it, within the vehicle, at least within, at a minimum, the passenger, I think it's the whole car, but the passenger part of the car. You can't defeat that by tossing, I mean, literally under that theory, if you toss a bag out of the car, apparently that then falls outside of, although, I don't know how you can. I mean, in fairness, I think the defendant wouldn't make the distinction between if the officer saw you toss these things. And nobody saw him toss. Right. But there is that factual finding that the district court said it was in there and it was, and it was secreted out thrown under the car. The whole basis for standing is that you don't have any reasonable expectation of privacy given the circumstances, but if the bag is in fact outside of the vehicle, doesn't that change the calculus? If it had originally been outside there, yes, I think so, but if the whole point is that you're allowed, probably cause, allows you to search everything within there, and because of the mobility of a car, well, if a car's mobile, and we want to allow for that kind of search, certainly a bag that is attached to the car or that was originally in the car, it is at least as mobile, if not more mobile, than a vehicle would be, or anybody to snatch and grab. Which I do think, I mean, we do agree, I think, at one point

. It's not been overruled. So, moving on, by chance, abandonment didn't persuade us. Do you believe this? This is a law school, this felt like a law school exam as I was going through the possibilities. Standing, the wellens case. Excuse me. The wellens case, and a couple of cases since them, have clearly held that wellens, I think, was actually a rental car that both the driver in, in this case, even more attenuated the passenger of a car that's a rental car to which you are not authorized to drive or be in. You don't have a reasonable expectation of privacy. You don't have standing. You just don't have standing. And of course this isn't found in the car. Well, and that's where I think the factual finding that has not been attacked, that the judge says it was in the car at the time. And as I believe Judge Davis said, the probable cause arose while the bag was in the car. And so, are we to say that you can circumvent a USB, a Ross and the Wyoming Supreme Court case where you're allowed to, to search all those containers within it, within the vehicle, at least within, at a minimum, the passenger, I think it's the whole car, but the passenger part of the car. You can't defeat that by tossing, I mean, literally under that theory, if you toss a bag out of the car, apparently that then falls outside of, although, I don't know how you can. I mean, in fairness, I think the defendant wouldn't make the distinction between if the officer saw you toss these things. And nobody saw him toss. Right. But there is that factual finding that the district court said it was in there and it was, and it was secreted out thrown under the car. The whole basis for standing is that you don't have any reasonable expectation of privacy given the circumstances, but if the bag is in fact outside of the vehicle, doesn't that change the calculus? If it had originally been outside there, yes, I think so, but if the whole point is that you're allowed, probably cause, allows you to search everything within there, and because of the mobility of a car, well, if a car's mobile, and we want to allow for that kind of search, certainly a bag that is attached to the car or that was originally in the car, it is at least as mobile, if not more mobile, than a vehicle would be, or anybody to snatch and grab. Which I do think, I mean, we do agree, I think, at one point. Yeah, I mean, in the best case scenario, or I think as Judge Harwell found, if the stars had aligned, he was going to either not get arrested or get arrested and double back a little bit later and get the bag. But this court, and I know that. But perhaps cause somebody and have them do it. Correct. Correct. In fact, in that phone call, again, I know it's later after he's talking to his either wife or girlfriend about, all right, now if you go and get the car, and they ask you about the bag, and any guns that are in there, you say, look, my ID got stolen, and those guns, I don't know if they were, you know, he said. And that's the support and expectation of privacy. Well, it certainly may be objectively unreasonable, but it's definitely a subjective expectation of privacy. This is a factually interesting case. There's no doubt about that. So the standing would be a ground for a firmance. It appears in the record, and even if the court district court didn't rely on it, this court in a number of instances have said, you can affirm on an any basis. The probable cause that arose from smelling the marijuana and viewing the marijuana created the ability to search the vehicle and any containers therein. And we would argue that this was a container therein that was thrown out, but still allowed for the search of it. And then the inevitable discovery, I think, is the one in the end. And let's just all stop for a moment, a police officer on the side of a busy highway. The car is rolled up onto the tow truck. Let's say that there hadn't been an arrest, and there's just a bag sitting there. What is a police officer to do? Because in the instance where they just, they, they tow away an abandoned car, right? There's the bag. What are they to do? They wouldn't even be able to get, I don't, what would imagine, they'd say, what, what are you coming to me to get a warrant for a bag on the side of the road? And I think that would open it up and figure out what's in it and who's it is

. Yeah, I mean, in the best case scenario, or I think as Judge Harwell found, if the stars had aligned, he was going to either not get arrested or get arrested and double back a little bit later and get the bag. But this court, and I know that. But perhaps cause somebody and have them do it. Correct. Correct. In fact, in that phone call, again, I know it's later after he's talking to his either wife or girlfriend about, all right, now if you go and get the car, and they ask you about the bag, and any guns that are in there, you say, look, my ID got stolen, and those guns, I don't know if they were, you know, he said. And that's the support and expectation of privacy. Well, it certainly may be objectively unreasonable, but it's definitely a subjective expectation of privacy. This is a factually interesting case. There's no doubt about that. So the standing would be a ground for a firmance. It appears in the record, and even if the court district court didn't rely on it, this court in a number of instances have said, you can affirm on an any basis. The probable cause that arose from smelling the marijuana and viewing the marijuana created the ability to search the vehicle and any containers therein. And we would argue that this was a container therein that was thrown out, but still allowed for the search of it. And then the inevitable discovery, I think, is the one in the end. And let's just all stop for a moment, a police officer on the side of a busy highway. The car is rolled up onto the tow truck. Let's say that there hadn't been an arrest, and there's just a bag sitting there. What is a police officer to do? Because in the instance where they just, they, they tow away an abandoned car, right? There's the bag. What are they to do? They wouldn't even be able to get, I don't, what would imagine, they'd say, what, what are you coming to me to get a warrant for a bag on the side of the road? And I think that would open it up and figure out what's in it and who's it is. I mean, in the end, that would all, assuming everything else didn't allow for the search of the bag, inevitable discovery, certainly would. I think we understand your argument. Thanks very much. Mr. Rogers, you have any rebuttal? All right, we are going to ask the clerk to adjourn court, and then we're going to come down and greet the lawyers, and then we have some visitors with us. And we thought we would come back here on the bench and right away and answer any questions you have that we want to answer. So no questions about the cases that we've just heard. Okay, well, yes, adjourned. This honorable court stands adjourned, signed a die. God save the United States, this honorable court.

And in our second case, the United States versus Davis, number 13, 4280, Mr. Rogers, whenever you're ready. Please, the court, Jimmy Rogers on behalf of Christopher Davis. Although the government in its opposition to the defendant's motion to suppress postulated so theories, justifying the search and seizure of this bag in question, the district court found, nonetheless, that Mr. Davis had abandoned the bag and therefore the search and seizure was proper. The Davis, of course, contends that the district court clearly aired when it made such a finding. Davis contends that the bag was not abandoned but was hidden and therefore he had a objective, reasonable expectation of privacy. If you look at US versus Jones and US versus Clemens, which sets out the test for abandonment, you will find that the courts have said several of the factors are the acts done by the defendant, the words spoken by the defendant and other objective factors. Here in this case, you will see that by the actions of Mr. Davis, it was clear that he was attempting to hide the bag. Please under a car in a big highway. Yes, Your Honor. If you will look at the- I'm going to be arrested by the police and there were no drivers of the car, right? Yes, but he had not been arrested. The police had to cart the car away. Yes. And it wasn't reasonable to think that when they took the car away, they would see the bag? Well, I would admit that he was attempting to hide the bag. Well, presumably they would not have found the bag under any circumstance. Do we look at what he- his subjective intent or the intent of an objectively reasonable person? Yes, Your Honor. Which one? The intent of a reasonably objective person. If you look at the dash cam video- Well, it's both, isn't it? I mean, an abandonment is simply another way of asking, did a person have a reasonable expectation of privacy? And to answer that question, you asked whether it was a subjective expectation of privacy and was it objectively reasonable? Isn't that- I do agree. It is both. Are you going to agree with everything Judge Mott says and everything I say? I don't know if you can get away with that. No, Your Honor. Well, we generally agree. But if you will look at the dash cam video, it is clear that Mr. Davis waited until the officer was in contact with the driver directly behind the car. So that the officer's view would be obstructed by the driver. The door opens very slowly. You don't see the bag being secreted, but you do see the door closed. I contend- we contend by those factors that objectively Mr. Davis was attempting to hide the bag. What's your best case on the fact for this? Smith vs. Ohio. We think it's close. That's a Supreme Court case. Yes, Your Honor. Would they have a paragraph sort of about this? Yes, Your Honor. The procuring opinion. What happened in that case was the officer was attempting to question- It's throwing it on the- And he threw it on the roof. And the court there said that citizens have a right to attempt to protect their private property from inspection. And we contend that's what Mr. Davis was doing here. Smith, as I recall, was actively guarding the bag here. I mean, your client simply left the bag by the side of the road. That's a different set of facts, isn't it? As I recall, in Smith, he turned his bag through the bag on to the car and then turned back to confront the officer's questions. So we contend that's the same factual scenario. Both were attempting to hide the context of the bag. The government had some other theories under which he would lose, too, didn't it? Well, we don't think so, Your Honor. Well, they had theories. They did have all the theories. If they prevailed on, you would lose. You don't agree they had theories. You just don't think they're legitimate theories. They're merit. Maybe you might want to talk about something, too. Of course, the government's first theory was that it was a search incident to an all-offal arrest. The cases have clearly said that the reason for allowing a warrantless search incident to an arrest is to protect the officer's safety from the defendant or suspect obtaining a weapon or for to prevent the defendant from hiding contraband within the car. Within the car. I know of no case that says that you can search a bag that is not in a car that's in proximity to a car. I found no cases that say that search would be based on probable cause or incident to arrest. Even if the bag that is adjacent to the car has the name on it, the same name as the defendant. We contend that a warrant should have been obtained from a neutral and detached match that once the bag was found. I thought the government's argument was that probable cause developed at the time that the bag was in the car and that was enough to conduct this search. But the problem was that the probable cause, well, we don't believe the probable cause existed to search the bag. And this is why in a normal, let's say, drug transaction case where an officer would observe a hand to hand transaction or a sale, it would be reasonable to assume that there's more drugs present. Here, there was some loose marijuana, presumably on the driver's lap. They found a partially smoked cigarette in the open container. We contend that there was no reason to believe that there was more marijuana present. Or I know it. Because the facts do not lend itself to that conclusion. Maybe not conclusively, but all we need is probable cause more likely than not. But at the point, well, probable cause did not exist at the time the bag was hidden. Nobody was under arrest at that time and the officers had not in fact even searched the car then they searched the car later. And once it was determined that the open container and the marijuana was in the car, that's when the arrest occurred. So we contend that clearly he was trying to hide the bag. Probable cause would not cause ended. Well, I won't say probable cause ended, but under this theory of search incident to arrest, we don't think that theory prevails because both defendants were taken away from the scene. What about search of the car based on probable cause that this contraband in the car? We don't have a problem with search of the car. Okay. Would a person if he if the officer had observed him, tossed the bag from the car. Could the officer go over and pick up the bag or we contend that that's correct. And on what theory would you, which you said it? Even if it had his name on it, Davis, do not enter. This is secret private material. I'm asserting my fourth amendment rights. The bag had all that on it. The officers could still get in it. I don't believe the officer, I believe the officer still would have had probable cause. And what's the basis for your answer? Because he saw him throw the bag. Well, wait a minute. No. Seeing somebody throw a bag is not probable cause to search a bag. It relates to the fact that the fact that the bag is in the car. And there's probable cause to search the car. And under a subito, you can search any container in a car that might contain the bag. And the car to a van for which there's probable cause to search the car. Correct. You agree with all of that? Yes. So observing an occupant of the car, toss an item, whether it's a bag or a shaving kit or a jacket or a woman's purse or man's purse or brief. Anything you toss out of the car, that item doesn't lose the toxicity of the probable cause from being in the car. That's what you're agreeing to. But I would contend that the officers act of observing him throw the bag. Okay. Right. So it gives him level that the question in this case is when they lifted that car to tow it away. Was there reasonable, was there a reasonable basis to believe that that item that they found they were on the ground, which had been hidden by the car. Actually, came out of the car. We contend. And connection with the stop. There's no way to know that. Well, you don't have to know. You simply have to have reasonable cause to believe, right? But the fact that the name was on the bag. And they knew his name by then, right? They did. By the time they lifted the car and found the bag, they knew Mr. Davis's name. That's great. That's pretty connecting, that's connecting tissue, isn't it? But there was no reason we contend to believe that there was contraband in the bag at that point. Well, because we, we are now. Did he have to have reason to believe there's contraband in the bag separate from a belief that there's contraband in the car? You just agreed with me. I thought that if there's a reasonable belief that there's contraband in the car and there clearly was because they saw the marijuana in the car. Right. Now they can search everything, right? The glove compartment. The console. It can't search the trunk. Oh, why can't they search the trunk? Because I think you're mixing, I think you're mixing Belton and Acevedo. Very well, young man. And Belton, of course, is no longer applicable generally, although even under Gantt, this would be a proper search incident to an arrest of the car because there was probably a cause to arrest him for possession of narcotics. But the rationale for search incident to arrest is to prevent evidence from being destroyed. And that was not present because that's fair. The defendants were nowhere on the scene. So your submission is that they could seize the bag perhaps. They could seize the bag. They had to take the bag to a to a magistrate or a judge and get a search warrant to open the bag. That's how content that's your content. Yes. The government's other position was that it was an inventory search we contend. Right. And there was inevitable discovery. And inevitable discovery. Clearly, it wasn't an inventory search because the officer had indicated she was looking for evidence that the previous officer had told her they thought marijuana was a foot. And that was the reason that she looked into the bag. We contend that the search would fail on that ground because it clearly would not be an inventory. But inevitable discovery, they cart the car away and there's the bag. But at that point, there was no basis to conclude that there was anything of criminal nature in the bag. Well, it's underneath a car which had had people that they had taken in because they had probably caused to arrest them. But because they hadn't seen him put the bag there, they had no reason to know where the bag came from. The bag didn't know had his name on it. The person that they took away. But even though the bag had his name on it, we contend that there was still no reason to believe that the bag contained contraband. They had searched the car. They found marijuana in on the driver's lap and they found marijuana in the in the cup. So we contend that because it was not a sale situation, it was not probable cost to believe that there was more drugs of foot. They were in the car smoking a blunt. And that was it. They didn't see a bag. They didn't see him hide the bag. And once the bag was discovered, our contention is a neutral and detached magistrate should have concluded that probable cause existed to search the bag. Okay. Thank you. I think we understand your position. Thank you. Thank you. Good morning, Mayor. Please the court. I'm Robert Daley on behalf of the United States. This is a clear cut case of abandonment. You know, I don't disagree with you. Except there is a Supreme Court case. This looks pretty close to the Smith maybe it's no longer a good law. Well, you know, I did notice that Justice Marshall said, I don't like these summary dismissals because you don't get a full record. And we do these summary reversals in that dissent. He actually says that. But if it is interesting because it's such a short snippet of the facts. But there it is. But there it is. And so there's probably three ways to look at Smith and why it's not controlling. One is it's substantively qualitatively different if an officer comes up to me and I toss a bag on top of a trunk of my car. I haven't. It's still with my car. I haven't. I haven't tried to put it somewhere out of the way. I mean, I'm still there in the case. This case is stronger than Smith on those grounds. Under your hiding it. The whole idea is you're asserting you write to privacy rather than throwing it out for God and everyone to see it. Well, I guess it. It's a double ed sort of could go either way because he still has it right there. He hasn't let go of his property rights. If it's still there on his car. The. What would a reasonable person have done with this bag. In order to hide it from the police under the circumstances that existed at the time of the traffic stop. And not abandon it. I think it'd be a if you notice there. There's no case law that he's going to find where that where that. That's what I tell you is right. What would a reasonable person intent on hiding this item from law enforcement. Have done. Under the circumstances of the traffic stop in this case. To to not abandon it. No to hide it. Protect the existing. Expectation of privacy. The scenarios that that come to mind the cases suggest you put it under the seat. Which you really think a reasonable person would have left it in the car. Well, no, I mean, I'm just telling you the case law what people have done. I'm not asking you about the case law. I'm asking you what would a reasonable person have done. To hide these items from a law enforcement officer making a traffic stop. Of a vehicle, a rented vehicle in which neither the driver nor this passenger apparently had the right to even have the vehicle. They didn't even have and they even have the documents showing that they were properly in possession of the vehicle. Correct. So what would a reasonable person have done under those circumstances to hide this item. They throw it out the window as far as they could. Or they try to throw it under the car as it was done here. I lack imagination because I have not found myself in this scenario before. But perhaps there's other ways. I'm, you know, some try to. So you're trying to eat it. It comes down to their stock. They either they either leave it in the car or they abandon it. Because your argument is any effort to get this item out of the car is an abandonment as a matter of law. That seems to be your position. I can't right now think of a scenario where that wouldn't be the case. So if they're trying to, to, to, to secret it away. Right. So you can't secret contraband from law enforcement when you're in a rental car that you don't have the papers for. You cannot do that as a matter of law, matter of constitutional law. You either, you either leave it in the car and let them find it in the car or anything else you do is going to constitute an abandonment. And you give up your expectation. I can't think of a scenario where that's probably not going to be the case. This case is a little stronger though. And I want to focus you on the courts, the courts decision at pages four and five, where the court focuses on the fact that when a defendant disclaims ownership of it. Of the bag. That. When did he do that here? If you look hiding it, you look in the video at about one hour or two minutes and approximately 40 seconds. The police officer comes up and says, hey, found this bag. What's what's the deal with this bag? The defendant says bag. I don't know bag. I only think about a bag. The police. You're saying he abandoned it at that point? Not when he, not when he hit it. No, no, no, I'm saying that it is. Wait a minute, wait a minute, wait a minute. If you're going to rely on the officer's interrogation of him an hour later, I didn't know you would. I didn't understand that to be your argument. I'm not relying on that, but that is further. You're in the war line, but it's further evidence of the. Exactly, you're on. I mean, everybody could say, I mean, here's the thing. There are so many different ways that they already searched the bag at that point. They had your honor. Of course. They had your honor. Of course. Most remarkably, after they had searched it, and then he said, by the way, I found your ID inside the bag. His response? Oh, I lost my ID four or five months ago. I went down to the highway department. You know, so I mean he's. A bootstrapping work if you can get it. Well, that's all I can say. You certainly, you invade somebody's fourth amendment rights, assuming they exist. An hour later, you come and interrogate them. By the way, was he Miranda's? He was. Yes, yes. So he was Miranda's and then he's, and then he's questioned about the bag. And you want to bootstrap an invasion of a privacy interest an hour earlier by what he says an hour later denying any ownership. And yet you say here in a war argument, no, I'm not really relying on that in response to Judge Mike. You said, well, that just confirms what we think to be true from him hiding the bag under the car in the first place. It's further evidence that it was, it was objectively not reasonable. I mean, he was, he was getting rid of the back cases. I've had cases. I won't speak for my colleagues in which law enforcement officers didn't arrest a person in a car under these circumstances. Right? Sure. So he hid the bag before he was arrested. No question about that. Yes, yes, you're on. And in fact, he hid the bag according to the argument here. He hid the bag before the officer even developed probable cause to arrest. Would you admit that? No, he had already, he had already smelled the marijuana and viewed the marijuana leaves on the driver's lap at that. He saw that the first minute or two. The, the bag gets put underneath the court found it about 13 minute mark of the video. So there's already probable cause. But not yet. There was not yet a rest. He was waiting for backup to come and you'll see right at about the 13 through 14, 15 minute mark. He pulls the driver out. The backup arrives. The door, the passenger door opens up for about eight seconds and then. And was the rest based on Pringle? Essentially. In other words, the idea that you can arrest everybody in a car. If you find a marijuana cigarette in the car, well, the arrest of Mr. Davis was. Could be both that and the open container. Open container with the roach in the in the car. He had a, what do you have a beer? They had, well, I had a bottle of gray goose vodka and then two cups that had. The alcohol and they both admitted it. And in one of those cups was a leftover roach marijuana. Okay. Can I ask you to go back? You were in the middle of distinguishing or. Trying to distinguish the Supreme Court case. Right. And you said. You said you said you first had the first factual thing, which I think goes. He wasn't trying to get rid of the bag would be, would be the argument that when he put it on. He was simply placing it to the side because the officer was addressing him. At least that certainly is, is one way to look at it. The Supreme Court case. He was, he threw it over his shoulder. But he tossed it on the hood of the car. On the hood of a car and as I say in front of God and everyone, this man at least put it under. So it was covered in some fashion. Okay. So that's your first distinction. But I mean, I said there were three grounds. Well, I understand that one. I'm not sure. Okay. I just, just, when you don't toss it out of the way, if everyone still sees it, you have an abandon it is my point. That's the first one. The second one is unlike the Smith case. Here, there's no, and I know Judge Davis doesn't like the fact this happens afterwards. But he says, it's not my bag in this case. That was not the case in Smith. In fact, the effectively object to the search of his bag. Excuse me. Didn't he have in Smith? Yes. He was, he was, I don't know if it was a struggle because again, it's a summary disposition. But it appears that the police officer pushed him out of the way. So he's asserting some ownership of that, of the bag while that struggles happening. Then the third thing is we find ourselves in a different place in this case. In Smith, the high-out court had already found there was no abandonment. Whereas here we have the district court having found abandonment. So there have been a finding. Right. Right. And the Supreme Court just agreed with the, in some ways, I don't want to say that it was identical to here, but where there wasn't a clear error in finding that. Again, it was an alternative ground that just was thrown in. The state did not, how it didn't have a good argument for the primary issue that was before the Supreme Court in that case. So anyway, it's a peculiar case. When I came across it, I saw it as a peculiar case. It appears to still be good law. It's not been overruled. So, moving on, by chance, abandonment didn't persuade us. Do you believe this? This is a law school, this felt like a law school exam as I was going through the possibilities. Standing, the wellens case. Excuse me. The wellens case, and a couple of cases since them, have clearly held that wellens, I think, was actually a rental car that both the driver in, in this case, even more attenuated the passenger of a car that's a rental car to which you are not authorized to drive or be in. You don't have a reasonable expectation of privacy. You don't have standing. You just don't have standing. And of course this isn't found in the car. Well, and that's where I think the factual finding that has not been attacked, that the judge says it was in the car at the time. And as I believe Judge Davis said, the probable cause arose while the bag was in the car. And so, are we to say that you can circumvent a USB, a Ross and the Wyoming Supreme Court case where you're allowed to, to search all those containers within it, within the vehicle, at least within, at a minimum, the passenger, I think it's the whole car, but the passenger part of the car. You can't defeat that by tossing, I mean, literally under that theory, if you toss a bag out of the car, apparently that then falls outside of, although, I don't know how you can. I mean, in fairness, I think the defendant wouldn't make the distinction between if the officer saw you toss these things. And nobody saw him toss. Right. But there is that factual finding that the district court said it was in there and it was, and it was secreted out thrown under the car. The whole basis for standing is that you don't have any reasonable expectation of privacy given the circumstances, but if the bag is in fact outside of the vehicle, doesn't that change the calculus? If it had originally been outside there, yes, I think so, but if the whole point is that you're allowed, probably cause, allows you to search everything within there, and because of the mobility of a car, well, if a car's mobile, and we want to allow for that kind of search, certainly a bag that is attached to the car or that was originally in the car, it is at least as mobile, if not more mobile, than a vehicle would be, or anybody to snatch and grab. Which I do think, I mean, we do agree, I think, at one point. Yeah, I mean, in the best case scenario, or I think as Judge Harwell found, if the stars had aligned, he was going to either not get arrested or get arrested and double back a little bit later and get the bag. But this court, and I know that. But perhaps cause somebody and have them do it. Correct. Correct. In fact, in that phone call, again, I know it's later after he's talking to his either wife or girlfriend about, all right, now if you go and get the car, and they ask you about the bag, and any guns that are in there, you say, look, my ID got stolen, and those guns, I don't know if they were, you know, he said. And that's the support and expectation of privacy. Well, it certainly may be objectively unreasonable, but it's definitely a subjective expectation of privacy. This is a factually interesting case. There's no doubt about that. So the standing would be a ground for a firmance. It appears in the record, and even if the court district court didn't rely on it, this court in a number of instances have said, you can affirm on an any basis. The probable cause that arose from smelling the marijuana and viewing the marijuana created the ability to search the vehicle and any containers therein. And we would argue that this was a container therein that was thrown out, but still allowed for the search of it. And then the inevitable discovery, I think, is the one in the end. And let's just all stop for a moment, a police officer on the side of a busy highway. The car is rolled up onto the tow truck. Let's say that there hadn't been an arrest, and there's just a bag sitting there. What is a police officer to do? Because in the instance where they just, they, they tow away an abandoned car, right? There's the bag. What are they to do? They wouldn't even be able to get, I don't, what would imagine, they'd say, what, what are you coming to me to get a warrant for a bag on the side of the road? And I think that would open it up and figure out what's in it and who's it is. I mean, in the end, that would all, assuming everything else didn't allow for the search of the bag, inevitable discovery, certainly would. I think we understand your argument. Thanks very much. Mr. Rogers, you have any rebuttal? All right, we are going to ask the clerk to adjourn court, and then we're going to come down and greet the lawyers, and then we have some visitors with us. And we thought we would come back here on the bench and right away and answer any questions you have that we want to answer. So no questions about the cases that we've just heard. Okay, well, yes, adjourned. This honorable court stands adjourned, signed a die. God save the United States, this honorable court