US v. Tony Majette

Filing 920090430

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 intent to

with

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

door

and

one

(with

2.2

grams)

behind the passenger seat.

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) seized during the search of the Cadillac. offense of

Because driving

Majette on a

was

detained

for

the he

misdemeanor claimed

suspended

license,

that

Officer

Czernicki was required under Virginia Code § 19.2-74(A)(1) to issue a summons to rather than the place him under was not arrest. incident concluded Thus, to a

according lawful

Majette, The was

car

search court

arrest. arrest

district proper

first

that

Majette's

under

§ 19.2-74(A)(1)'s

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 among to 120 other The jury convicted Majette, and he in prison. the Majette search of appeals, the car

months things,

claiming,

that

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. indeed control. In Gant the Court clarified that New York v. Belton's (vehicle search) scope was limited by the the "safety and Gant was decided on April 21, 2009, and it does

evidentiary

justifications

underlying" 4

"reaching-distance

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 the Court held "that

explanation,

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. unique to The the

circumstances

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 Officer Czernicki searched the Cadillac and

found the drugs.

Thus, the Cadillac's passenger compartment was Id.,

not "within [Majette's] reach at the time of the search." slip op. at 9.

Moreover, the officer would not have had a

reasonable basis to believe he would find evidence of Majette's license suspension -the offense of arrest -within the

Cadillac's passenger compartment.

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