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Officer’s Statements ‘Tainted’ Search

A police officer who stopped defendant’s vehicle for speeding violated defendant’s Fourth Amendment rights when he ignored defendant’s refusals to consent to a search and told defendant he could search the car based on having observed a flask in the car, without checking the flask or otherwise observing any signs defendant had consumed alcohol; the 4th Circuit reverses the denial of a motion to suppress a gun found in the vehicle’s glove compartment.

We agree with defendant that the district court erred when it failed to suppress the evidence found through search of the car because the officer was only able to obtain probable cause to conduct the search – defendant’s admission that there “might” be something in the vehicle – after falsely asserting he had probable cause to search defendant’s car.

We hold that the officer’s assertion that the existence of the hip flask provided him with probable cause to search the car was an independent, antecedent threat to violate the Fourth Amendment that ultimately fatally taints the search of the car and the seizure of the gun. We note that because this contention was not precisely raised below, we ordered supplemental briefing. We exercise our discretion to consider the contention because a litigant may make any argument on appeal in support of a federal claim properly made below. While we review the district court’s factual findings for clear error, we review its legal conclusions de novo.

The government concedes the officer’s assertion that the hip flask gave him probable cause to search the car was a misstatement of the law. We agree.  The officer admitted he never checked that the flask had alcohol (or anything else) in it. And he admitted there was no other evidence suggesting that defendant was under the influence of alcohol or intoxicated. So there was no probable cause to search the car for any crime related to alcohol in a flask and certainly not for any other crime.

We conclude the officers’ false assertion of his authority to search the car irreparably tainted defendant’s incriminatory statements and the ensuing search of the car. A search or seizure is unconstitutional if it is premised on a law enforcement officer’s misstatement of the officer’s authority. Here, we have defendant’s incriminatory statements giving rise to probable cause to search the car, not his express consent to a search of the vehicle.

The government maintains the officer’s misstatement was irrelevant because defendant’s admissions giving rise to probable cause were not a direct product of the officer’s flexing of his authority. The record overwhelmingly demonstrates otherwise. Defendant refused to consent to a search multiple times. It was only after the officer asserted that a search of the car was inevitable (by declaring he had probable cause to do so) and continued to press him with questions about the contents of the car that defendant admitted the presence of the gun in the car.

Defendant’s incriminatory statements could not, therefore, serve as a proper basis for probable cause for a search of the car. Consequently, both the statements and the tangible fruits of the ensuing search of the vehicle should have been suppressed.

Reversed, vacated and remanded; mandate shall issue forthwith.

U.S. v. Saafir (Per Curiam) No. 13-4049, June 11, 2014; USDC at Greensboro, N.C. (Eagles) John A. Dusenbury Jr., FPD, for appellant; Michael A. DeFranco, AUSA, for appellee. VLW 014-2-113, 10 pp.

VLW 014-2-113

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