4th Circuit says evidence in zipped backpack not admissible

RICHMOND, VA — A 4th U.S. Circuit Court of Appeals decision on the significance of placing items in a zipped-up backpack suggests a backpack could be a safe harbor in the right circumstances.

The court 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.

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 3^rd, 9th and 10th Circuits have reached the same conclusion, the court said.

The trial court should have suppressed the evidence found in the backpack, the 4th 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.