US v. Tony Majette, No. 08-4427 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4427 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TONY MAJETTE, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:07-cr-00010-jct-1) Argued: January 30, 2009 Decided: April 30, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. ARGUED: Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Christine Madeleine Spurell, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, R. Andrew Bassford, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: An evidence-producing automobile search incident to the arrest of Tony Majette for a driving offense turns out to be unlawful under the Supreme Court s new opinion in Arizona v. Gant, 556 U.S. ___, No. 07-542 (Apr. 21, 2009). vacate Majette s conviction for possession We therefore with intent to distribute cocaine base. I. Majette was stopped by a Blacksburg, Virginia, police officer on June 5, 2006, for driving a car (a Cadillac) with impermissibly dark window tint. When Officer Michael Czernicki, who made the stop, asked Majette for his driver s license and registration, suspended. Majette admitted that his license had been Officer Czernicki then checked with his dispatcher, who confirmed the license suspension and reported that Majette had three prior adult convictions for driving under a suspended license and fifteen prior suspensions of his driving privileges. Based on this information, Officer Czernicki decided to arrest Majette rather than issue a summons. The officer handcuffed Majette and secured him in the back seat of the patrol car. Thereafter, Officer Czernicki searched the passenger compartment of the stopped Cadillac. containing cocaine base, During the search he found two baggies one (with 2 20.7 grams) between the passenger seat and passenger behind the passenger seat. door and one (with 2.2 grams) The officer also found a Mason jar behind the driver seat that contained a tiny amount of a leafy substance that smelled like marijuana. Finally, the officer found a set of digital scales underneath the passenger seat. On February 22, 2007, a federal grand jury indicted Majette on one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B). Later, on October 23, 2007, Majette filed a motion to suppress the evidence (the cocaine base and scales) Because Majette driving on a seized was during detained suspended the for search the license, of the misdemeanor he claimed Cadillac. offense that of Officer Czernicki was required under Virginia Code § 19.2-74(A)(1) to issue a summons according lawful to Majette, arrest. Majette s rather arrest than the The was place car search district proper him was court under under not first arrest. incident concluded § 19.2-74(A)(1) s Thus, to a that exception that authorizes an arrest when the officer reasonably believes the person detained is likely to disregard a summons. The court then held the search of the Cadillac was lawful, incident to Majette s valid arrest. J.A. 68. The court relied on New York v. Belton, 453 U.S. 454 (1981), which it read broadly -- as did many courts, including ours -3 to allow a vehicle search incident to the arrest of an occupant, even when the arrested occupant no longer had access to the passenger compartment. See e.g., United States v. Coley, No. 92-5061, 1992 U.S. App. LEXIS 32778, at 2-4 (4th Cir. Dec. 17, 1992) (concluding that New York v. Belton allowed police to search a defendant s vehicle after he was lawfully arrested during a traffic stop, handcuffed, and placed in a patrol car.). Majette went to trial, and the government introduced the evidence of the items (the drugs and scales) discovered in the search of the Cadillac. was sentenced claiming, to among 120 other The jury convicted Majette, and he months in things, prison. that the Majette search of appeals, the car violated the Fourth Amendment. II. During oral argument on January 30, 2009, it was noted that this appeal might be controlled by the impending decision of the Supreme Court in Arizona v. Gant, No. 07-542, an automobile search case with facts strikingly similar to those presented here. Gant was decided on April 21, 2009, and it does indeed control. In Gant the Court clarified that New York v. Belton s (vehicle search) evidentiary scope justifications was limited by the underlying the reaching-distance 4 safety and rule of Chimel v. California, 395 U.S. 752 (1969). U.S. ___, ___, No. 07-542, slip op. at 1 (Apr. Gant, 556 21, 2009). Under Chimel, the Court said, police may search incident to arrest only the space within an arrestee s immediate control, meaning the area from within which he might gain possession of a weapon or destructible evidence. U.S. at 763). With this Id. (quoting Chimel, 395 explanation, the Court held that Belton does not authorize a vehicle search incident to a recent occupant s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Court also conclude[d] that Id., slip op. at 1-2. circumstances unique to The the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. Id., slip op. at 2. In this case Majette was handcuffed and secured in the patrol car when found the drugs. Officer Czernicki searched the Cadillac and Thus, the Cadillac s passenger compartment was not within [Majette s] reach at the time of the search. slip op. at 9. Id., Moreover, the officer would not have had a reasonable basis to believe he would find evidence of Majette s license suspension -- the offense Cadillac s passenger compartment. of arrest -- within the See, id., slip op. at 10. These circumstances, considered in light of Gant, require us to hold that the search of the Cadillac 5 was unreasonable. We therefore vacate Majette s conviction and remand for a new trial, if the government chooses to have one. III. Majette raises other issues in this appeal, claiming (1) that the government did not provide reasonable pretrial notice of its intent to offer evidence of other crimes or wrongs under Federal Rule of Evidence 404(b); (2) that the district court erred in its response to a jury question on the issue of intent to distribute a controlled substance; and (3) that the evidence was insufficient to sustain his conviction. Because we have concluded that a new trial is warranted due to the unlawful vehicle search, we decline for prudential reasons to consider the remaining issues. VACATED AND REMANDED 6

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