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Tenth Circuit Throws Out Warrantless Search of Backpack: Johnson

Tenth Circuit affirmed the district court’s ruling that officers had probable cause to arrest Johnson and seize the backpack and bundle. However, the court held that when the officer felt the bundle on the bus, he conducted a warrantless search in violation of the Fourth Amendment. The officer therefore could not rely on information from the first illegal search to justify the second search at the DEA office. Because these warrantless searches violated the Fourth Amendment, the physical evidence yielded from the search must be suppressed.

Facts:  Warantless Search of Backpack, Motion to Suppress Denied in District Court

Johnson was arrested following an encounter on a Greyhound bus with law enforcement. Officers discovered two packages of methamphetamine in Johnson’s backpack, and Johnson gave some incriminating statements. In the district court, Johnson moved to suppress the physical evidence and his statements. The district court denied the motion in a short, two-page order.

On appeal, Johnson argued that (1) there was no probable cause to arrest him; (2) law enforcement illegally searched a bundle of clothing in his backpack while on the bus following the arrest; and (3) law enforcement conducted an illegal search of the backpack and bundle later at the DEA’s office.

The Tenth Circuit concluded that officers had probable cause to arrest Johnson and seize the bundle of clothing and backpack. However, the court held that while seizing the items from the bus, law enforcement conducted an illegal search of the bundle by reaching inside Johnson’s open backpack and feeling the bundle in an exploratory manner. A second warrantless search also took place at the DEA’s office when officers again went through the backpack.

The government argued that the plain-view exception to the warrant requirement applied to the officer’s actions because it was a “foregone conclusion” that the backpack contained contraband. It is well established that the plain-view exception applies if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object’s incriminating character was immediately apparent; and (3) the officer had a lawful right to access the object. But as the Tenth Circuit noted, the plain-view exception may support the warrantless seizure of a container believed to contain contraband, it does not automatically support a subsequent search of concealed contents of the container. Instead, a subsequent search is only permissible if the contents of the seized container are a “foregone conclusion.”

Holding:  Warrantless Searches that Violated the Fourth Amendment

Reviewing the district court’s denial of Johnson’s motion to suppress, the Tenth Circuit concluded that the incriminating character of the backpack and bundle was immediately apparent based on the facts supporting officer’s probable cause to arrest Johnson. As such, officers could lawfully seize those items. And, logically, in seizing those items some incidental touching will occur. However, the officer could only search the backpack and bundle if he obtained a warrant, another exception applied, or the contents were a foregone conclusion. The district court concluded that the contents were a foregone conclusion, which became the crux of Johnson’s appeal.

Notably, the government argued that the officer’s handling of the bundle on the bus was no search at all. But the Tenth Circuit expressly rejected the government’s argument noting that by manipulating the defendant’s bag in a manner that the defendant did not reasonably expect from other passengers, the officer conducted a search within the meaning of the Fourth Amendment.

Turning to whether the bundle’s contents were a foregone conclusion, the Tenth Circuit analogized the bundle of clothing to that of a container that was “unrevealing in appearance” and “did not reveal its contents.” Thus, the court concluded that the bundle’s contents were not a foregone conclusion when the officer searched it on the bus. Accordingly, the warrantless search was a violation of Johnson’s Fourth Amendment rights.

Additionally, the Tenth Circuit held that the officer’s second search of the backpack and bundle at the DEA’s office without a warrant was also a constitutional violation. The court’s analysis of the second search was essentially the same as the initial search on the bus-officers could seize the backpack and bundle, but could not search them without a warrant or some exception. The government argued that by the time the backpack had reached the DEA office, its contents were a foregone conclusion. At the time of the second search, the officer knew of a few additional facts about the bundle from his actions on the bus-the bundle was oblong shaped and was hard to the touch and had a crinkling king of feeling. But because the search on the bus was held illegal, the officer could not rely on new, unlawfully obtained facts to justify the later search at the DEA office.

Accordingly, the Tenth Circuit affirmed the district court’s ruling that officers had probable cause to arrest Johnson and seize the backpack and bundle. However, the court held that when the officer felt the bundle on the bus, he conducted a warrantless search in violation of the Fourth Amendment. The officer therefore could not rely on information from the first illegal search to justify the second search at the DEA office. Because these warrantless searches violated the Fourth Amendment, the physical evidence yielded from the search must be suppressed. The court accordingly reversed the district court’s denial of Johnson’s suppression motion, vacated Johnson’s conviction and sentence, and remanded for further proceedings.

United States v. Johnson, No. 21-2058 (10th Cir. 2022)

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