Evidence in zipped backpack not usable

Two appellate courts have rendered judgment on the significance of placing items in a zipped-up backpack. The outcomes suggest a backpack could be a safe harbor in the right circumstances.

One case called for a ruling by the Virginia Supreme Court on whether a zipped backpack was a “secured container” in which a gun might be legally placed while traveling by car in Virginia. The justices unanimously reversed both the court of appeals and the trial court to answer, “Yes.”

In the other case, the 4^th U.S. Circuit Court of Appeals examined whether police can search an arrestee’s backpack when the arrestee was handcuffed and lying face down on the ground. The warrantless search was improper, the court concluded.

‘Secured’?

Virginia’s statute that generally prohibits the carrying of concealed weapons contains an exception in Va. Code § 18.2-308(C)(8) for carrying a handgun in a vehicle when the gun is “secured in a container or compartment.”

Dorain Myers was in the driver’s seat of an SUV parked at an apartment complex in Suffolk in 2017 when two officers approached, according to the facts recounted by the Supreme Court. One officer said he smelled marijuana from an open window in the vehicle. The officers ordered all three occupants out of the SUV.

A blue backpack was in the passenger’s footwell “just an arm’s reach” from the driver’s seat, the officers reported. The back pocket was zipped completely shut. One officer opened it “with ease” and the police found a .40 caliber handgun. Myers admitted owning the gun.

Myers was tried in a bench trial before Suffolk Circuit Judge Robert H. Sandwich, according to the Court of Appeals unpublished opinion. Sandwich rejected Myers’ arguments that the gun was not “about his person” and that the gun had been “secured in a container.” Sandwich convicted Myers of carrying a concealed weapon, second offense.

The Court of Appeals affirmed both rulings. The Supreme Court agreed with Myers’ backpack argument and reversed on that ground.

Writing for the court, Justice D. Arthur Kelsey said the interpretation was aided by looking at the legislative history. The container-in-a-vehicle exception was passed by the 2010 General Assembly, but using the word “locked” instead of “secured.” It was Gov. Bob McDonnell who recommended using “secured,” and the Assembly agreed.

So “secured” doesn’t necessarily mean “locked,” but it is not synonymous with “closed,” the court said. The Court of Appeals cited authority that approved of a latched gun case and a latched console or glove box, but that court concluded a zipped backback was different because it could be “opened with ease.”

“The Court of Appeals found this distinction convincing. We do not,” Kelsey wrote.

“The second or two that it would take to open a latch on a console, glove box, or gun case is no different from the second or two that it would take to open a fully zipped backpack,” the opinion said. “Truth be told, Myers’ handgun was no less ‘secured’ in his zipped backpack than it would have been in a latched gun case. If neither is locked, each could be easily opened,” Kelsey continued.

The court reversed the conviction and dismissed the indictment.

“In sum, the Court of Appeals erred in affirming Myers’ conviction for violating Code § 18.2-308(A). He lawfully possessed the handgun secured in a backpack in his personal, private vehicle,” the court concluded.

The opinion is Myers v. Commonwealth (VLW 021-6-030).

Myers was represented by Sean E. Harris of the Suffolk public defender’s office. The commonwealth was represented by Assistant Attorney General Lauren C. Campbell.

Two searches suppressed

The Fourth Circuit may have brought even better news for a North Carolina man sentenced to 35 years in 2019 for federal drug and firearm violations. The federal appeals court vacated the convictions and remanded the case to the trial court with approval of two suppression motions.

Once again, a backpack was critical to the case.

The case stemmed from a 2017 traffic stop that escalated into a pursuit by car and on foot, according to the opinion written by Judge James A. Wynn Jr.

Officers in a town outside Raleigh pulled over a car for a suspected window tint violation. As officers examined the driver’s paperwork, the man drove off. He led officers on a chase through a residential neighborhood and then took off on foot. His flight took him into a swamp where he bogged down in knee-high water.

The driver – Howard Davis – returned to dry land at gunpoint, carrying a backpack. He dropped the backpack and lay down on his stomach. An officer found a large amount of cash on Davis’ person. The officer handcuffed Davis behind his back and placed him under arrest for traffic violations and fleeing the police.

The officer then unzipped the closed backpack and found large amounts of cash and two plastic bags with what appeared to be cocaine, the opinion said. A search of the vehicle yielded bundles of cash and a scale.

According to a 2019 news release, the investigation resulted in the seizure of more than 28 grams of crack cocaine and 178 grams of powder cocaine, $67,288 and a firearm. The gun was found on Davis’ path of flight, the court said.

The trial judge in Raleigh federal court denied Davis’ motion to suppress the evidence from both the backpack and the car. A jury convicted Davis and the judge imposed the 35-year sentence. This was Davis’ third federal conviction, the government’s news release said.

Represented by Virginia attorney Marvin D. Miller, Davis appealed. The court defined the issue as whether the U.S. Supreme Court’s 2009 ruling on vehicle searches incident to arrest applies to the search of a backpack outside the automobile context.

“We join several sister circuits in answering, yes,” Wynn wrote.

The court analyzed the ruling in Arizona v. Gant and discerned that the high court’s standard for warrantless searches for officer safety and preservation of evidence were not grounded solely on the involvement of a vehicle. The Third, Ninth and 10th Circuits have reached the same conclusion, the court said.

The trial court should have suppressed the evidence found in the backpack, the 4^th Circuit ruled. There is “no doubt that Davis was secured and not within reaching distance of his backpack” when the officer unzipped and searched it, the court said.

The evidence from the car also should have been suppressed, the court ruled. The only bases for probable cause were Davis’ flight, his arrest and the cash on his person. Together, they “cannot support the warrantless search that occurred,” Wynn wrote.

Wynn seemed to anticipate law enforcement dismay.

“The thicket of nuanced exceptions to the warrant requirement may appear, at times, confusing and unnavigable,” Wynn said in summary. But, he continued, “It is the crucial role of the courts to ensure that the government conducts searches of property in which individuals have a reasonable expectation of privacy only when permitted by a warrant or when one of a handful of limited exceptions to the warrant requirement applies.”

The panel included Wynn, Chief Judge Roger L. Gregory and Judge Stephanie D. Thacker.

The opinion is United States v. Davis (VLW 021-2-167).

The government was represented by Assistant U.S. Attorney Joshua L. Rogers.