JESSE M. FURMAN, District Judge.
Defendant Damon Bignon is charged with one count of being a felon in possession of a firearm in violation of Title 18, United States Code, Section 922(g). That charge arises from a search of Bignon's backpack by officers from the New York City Police Department ("NYPD") following his arrest for unlawful possession of marijuana. Bignon now moves to suppress the firearm on the ground that it was obtained in violation of his rights under the Fourth Amendment. See Docket No. 10. He argues that the police lacked probable cause to arrest him and, in the alternative, that the search of his backpack was an unlawful inventory search. See Docket No. 11 ("Def. Mem."). For the reasons stated below, Bignon's motion is DENIED.
Bignon is charged in a one-count indictment with possessing a firearm having previously been convicted of a felony after a police officer's search of his backpack revealed that he was carrying a gun. On December 3, 2018, he moved to suppress the evidence seized as a result of the search — including the gun — on the ground that it was obtained in violation of the Fourth Amendment. See Docket No. 10. The Government opposed Bignon's motion, but — in light of an affidavit submitted by Bignon — conceded the need for an evidentiary hearing. See Docket No. 15 ("Gov't Mem."), at 2. Accordingly, on February 5, 2019, the Court held a hearing at which the Government called as a witness NYPD Officer Kevin Seward, and Bignon called as a witness NYPD Officer Zachary Lavender. See Feb. 5, 2019 Hearing Tr. ("Tr.") 3, 116-17. In addition, the Court admitted various exhibits, including videotaped footage from body cameras worn by four of the NYPD officers involved in the incident. See id. at 47-49; Docket No. 13, Exh. C.
At about 2:50 p.m. on September 27, 2018, Officer Seward, Officer Lavender, and three other NYPD officers were driving northbound on the Grand Concourse in the Bronx in a marked police van conducting routine enforcement in the 44th Precinct, a relatively high-crime area. See id. at 5-6, 12-14, 18, 105. Officer Seward, prompted by another officer, looked out the window and observed Bignon, "huddled up against the wall" of a building, "with smoke coming from his mouth, smoking." Id. at 21. Officer Seward — who has participated in more than two hundred "enforcements" (that is, encounters resulting in either an arrest or the issuance of a summons) for public smoking of marijuana — suspected that Bignon was smoking marijuana based on the color and nature of the smoke and the fact that Bignon was holding the cigarette or joint "with his thumb and pointer finger." Id. at 7-8, 21-23; see also id. at 9-10 (testifying, based on his experience, that "the smoke from a cigarette" is "whiter and more thick than the smoke of a [marijuana] joint" and that "people tend to hold [a marijuana joint] with their thumb and their pointer finger" and "a cigarette, usually with their pointer finger and their middle finger").
Officer Seward and three other officers got out of the van and began to approach Bignon. Id. at 26-27. At that point, Bignon made eye contact with Officer Seward, dropped whatever he had been smoking, and began walking away from the officers. Id. at 27, 29; see also Exh. C.1, at 3:30-3:34; Exh. C.2, at 2:55-3:05 (Bignon later explaining why he dropped the cigarette when the police approached him). As Officer Seward approached Bignon, he "smelled a slight odor of weed in the air." Tr. 28. Officer Seward caught up with Bignon and he asked him "where is it," to which Bignon responded, "It's just a joint, see?" Id. at 29; see also id. at 50-52, 111-12; see also, e.g., Exh. C.1, at 3:20-3:25, 3:39-3:42 (Bignon repeatedly referring to the cigarette as a "hemp joint"). Officer Seward — who testified that, in his experience, the word "joint" refers to a marijuana cigarette and that he had never heard of someone using the word to refer to a tobacco cigarette, see id. at 9, 11 — understood Bignon to be admitting that he had been smoking marijuana. See id. at 29-30, 50. Officer Seward testified that, based on Bignon's statement and what he had observed, he was "confident" that Bignon had been smoking marijuana. Id. at 57; see also id. at 52. Officer Seward recovered the joint from the ground, after which another officer asked Bignon for his name and identification. See id. at 30-31. Bignon refused to provide either, and the officers arrested him. See id. at 31, 34-36, 38. On the way to, and at, the 44th Precinct, the officers repeatedly assured Bignon that they were going to give him a ticket and release him. See Exh. C.1, at 10:05-10:12, 14:10-14:13, 14:45-14:50; see also Tr. 38-39.
When they arrived at the 44th Precinct, the officers brought Bignon to the front desk. See Tr. 38. There, Officer Seward placed the joint he had recovered (and a couple other items taken from Bignon) into an NYPD property envelope. See Exh. C.1, at 7:45-8:05; Tr. 39-40. Bignon then gave his name and date of birth for the first time and, in a search of his person, officers found photo identification. See Tr. 38; see also Exh. C.1, at 11:35-40. Officer Seward also found $345 in cash on Bignon, which he counted out loud in a manner designed to be captured on his body camera; he advised Bignon that they were going to "hold onto" the money "for now," until they "cut [him] loose." See Exh. C.1, at 11:35-13:20. Officer Seward and Officer Lavender then escorted Bignon to cell area of the Precinct, explaining that they were going to write him a summons and then release him. See Tr. 39-40; Exh. C.1, at 14:07-54. Before they placed Bignon in the cell, Officer Seward and Officer Lavender frisked him again; removed his belt and shoelaces, placing them in an NYPD property envelope; and took custody of a backpack that Bignon had been carrying at the time of his arrest. See Tr. 39-41; Exh. C.1, at 14:18-17:30. Officer Seward proceeded "back to the office area," where he and Officer Lavender conducted an "inventory search" of the backpack and found a black handgun, a magazine, and bullets. See id. at 41, 46.
Officer Seward testified that, in his experience, it is "standard practice at the 44th Precinct to put any arrestee who's been brought back to the precinct into a cell" and that he had never seen someone arrested and brought back to the precinct not put into a cell. Tr. 42, 95; see id. at 54-55. He explained that that is the practice even if an officer plans is to issue a summons because the officer has to verify the arrestee's pedigree information, check the computer system for active warrants, and write the summons. Id. at 90-91. More relevant for present purposes, Officer Seward testified that, in his experience, when someone is put into a cell at the 44th Precinct, that person's belongings are "always searched" and that he had never seen the belongings of someone put into a cell at the 44th Precinct not searched. Id. at 42-43; see id. at 55. Officer Seward explained that such searches are "for the safety of the people who are inside the precinct, and you have to count their property in case of any accusations later on of lost property." Id. at 43; see id. at 55. He explained that if the arrestee is not released with a summons, his or her property would be "placed in a property bag and the property would get vouchered." Id. at 109-10. By contrast, when an arrestee is released with a summons, he "would typically just give" the property "back to them, not document it." Id. at 104; see id. at 107.
On October 23, 2018, the NYPD Police Laboratory performed a controlled substance analysis on the cigarette that Officer Seward recovered from the ground near Bignon. See Docket No. 13-3. It tested positive for cocaine, but negative for marijuana. See id.; see also Tr. 57. There is no indication that the Laboratory tested the cigarette for hemp, but, based on Bignon's repeated assertions that that was what he was smoking, the Court finds that the primary ingredient in the cigarette was hemp. See, e.g., Exh. C.1, at 3:20-3:25, 3:39-3:42. Notably, it is well established that hemp and marijuana are "varieties of the same species, Cannabis sativa L." Gero Leson et al., Evaluating the Impact of Hemp Food Consumption on Workplace Drug Tests, 25 J. of Analytical Toxicology 691, 692 (Nov./Dec. 2001); accord The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research, National Academies of Sciences, Engineering, and Medicine, at * 38 & n.6 (2017), available at https://doi.org/10.17226/24625. The primary difference is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9 tetrahydrocannabinol, more commonly known as THC. See Evaluating the Impact of Hemp Food Consumption, at 692; see also Agricultural Improvement Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 ("The term `hemp' means the plant Cannabis sativa L. and any part of that plant. . . . with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis."). Thus, it is fair to infer, and on that basis the Court finds, that the odor of burning marijuana and the odor of burning hemp are similar — or, more to the point, that one could reasonably mistake one odor for the other.
Bignon argues that his Fourth Amendment rights were violated in two independent ways. First, he contends that the search of his backpack was unlawful because the arrest that preceded it was unlawful. Second, he argues that the search was unconstitutional on its own terms because it did not fall within the inventory search exception to the warrant requirement. The Court will address each argument in turn.
Bignon moves to suppress, first, on the ground that his arrest was unlawful. It is well established that a lawful arrest requires probable cause. See, e.g., Virginia v. Moore, 553 U.S. 164, 177 (2008). Probable cause "exists when the officers have knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). Probable cause "is a fluid concept," Florida v. Harris, 568 U.S. 237, 244 (2013) (internal quotation marks omitted), which is "not readily, or even usefully, reduced to a neat set of legal rules," United States v. Falso, 544 F.3d 110, 117 (2d Cir. 2008) (internal quotation marks omitted). It is well established, however, that "[p]robable cause is to be assessed on an objective basis," Zellner, 494 F.3d at 369, "based on the totality of the circumstances," see United States v. Elmore, 482 F.3d 172, 179 (2d Cir. 2007). Thus, "an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." Devenpeck v. Alford, 543 U.S. 146, 153 (2004); see Whren v. United States, 517 U.S. 806, 812-13 (1996) (reviewing cases). Put differently, "an arrest is not unlawful so long as the officer has knowledge of, or reasonably trustworthy information as to, facts and circumstances sufficient to provide probable cause to believe that the person arrested has committed any crime." Zellner, 494 F.3d at 369.
Applying those standards here, the Court concludes that there was probable cause to arrest Bignon for unlawful possession of marijuana, in violation of New York Penal Law § 221.05.
It is true, of course, that Bignon's cigarette did not actually contain marijuana. At most, however, that fact calls into question the reasonableness of Officer Seward's belief that he had smelled marijuana. But Officer Seward could have reasonably, but mistakenly, believed that he smelled marijuana given the close similarity, discussed above, of marijuana and hemp (or, for that matter, for any number of reasons, including the possibility that someone else had been smoking it in the vicinity).
Bignon's alternative argument, that the search of his backpack was an unlawful inventory search, presents a closer question, but it too ultimately falls short. An "`inventory search constitutes a well-defined exception to the warrant requirement' under the Fourth Amendment." United States v. Lopez, 547 F.3d 364, 369 (2d Cir. 2008) (internal quotation marks omitted). Inventory searches "are deemed reasonable under the Fourth Amendment because [they] serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994) (internal quotation marks omitted). Pursuant to the exception, "law enforcement officials may open closed containers as part of an inventory search so long as they act in good faith pursuant to standardized criteria or established routine." United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002) (internal quotation marks and alteration omitted). "The existence of such a valid procedure may be proven by reference to either written rules and regulations or testimony regarding standard practices." Id. (internal quotation marks omitted). The procedure "may allow the searching officers sufficient discretion in deciding whether or not to open a specific container," but it "must not be a pretext for a general rummaging in order to discover incriminating evidence." Thompson, 29 F.3d at 65-66; accord Mendez, 315 F.3d at 137.
Applying those standards here, the Court concludes that the search of Bignon's backpack did not run afoul of the Fourth Amendment. NYPD Patrol Guide Procedure No. 218-13 — of which the Court can and does take judicial notice, see Williams v. City of New York, 121 F.Supp.3d 354, 369 n.16 (S.D.N.Y. 2015) — states that property that is possessed under the control of an arrested individual "`may be inventoried,'" and the word "may" suggests that "an inventory search is discretionary." See United States v. Cancel, 167 F.Supp.3d 584, 596 n.9 (S.D.N.Y. 2016) (quoting NYPD Patrol Guide Procedure No. 218-13).
In arguing otherwise, Bignon contends that "there was no apparent need to inventory the backpack's contents based on the officers' stated intent to release Mr. Bignon with a summons." Def. Mem. 7. As the Sixth Circuit has explained, however, that contention "misses the point. The rationale of [the inventory search exception] focuses upon protection of both the arrestee and police during the period a suspect is detained at the station house." United States v. McCroy, 102 F.3d 239, 241 (6th Cir. 1996). Absent changed circumstances, Officer Seward's intention was to release Bignon with a summons. See Tr. 92. But at the time of the search, Bignon was in a jail cell pending Officer Seward's search of the "police computer system to see if he had any active warrants, to verify his pedigree information" (and Bignon's unavailing argument about probable cause aside, he does not contend that that temporary detention ran afoul of the Fourth Amendment). Id. at 91. "Thus, at the time of the inventory search it was by no means certain that defendant would be released with a citation. Under these circumstances, an inventory search represents the type of `entirely reasonable administrative procedure' contemplated by [the inventory search exception]." McCroy, 102 F.3d at 241.
Citing the Supreme Court's admonition that "[t]he policy or practice governing inventory searches should be designed to produce an inventory," Florida v. Wells, 495 U.S. 1, 4 (1990), Bignon also contends that the search here violated the Fourth Amendment because Officer Seward did not make a contemporaneous record of the backpack's contents and admitted that he might not have made any record had the search not revealed evidence of a crime. See Docket No. 19, at 1-3 (citing Tr. 59, 103-04). Officer Seward's practices on that score undoubtedly stretch the inventory search exception closer to its breaking point. See, e.g., Tr. 59, 65-66. But the Court does not understand his testimony to mean that his search was not designed to produce an inventory altogether. Instead, when considered in conjunction with the body camera footage showing Officer Seward counting and recording the amount of money taken from Bignon, see, e.g., Exh. C.1, at 11:30-13:30, the Court construes his practices to involve documenting anything of value taken into police custody and creating a written inventory if evidence of a crime is found (as happened here). See Tr. 63, 107, 109. Those practices are sufficiently tethered to the purposes underlying the inventory search exception — to "deter theft by and false claims against [the police] and preserve the security of the stationhouse," Illinois v. Lafayette, 462 U.S. 640, 648 (1983) — to satisfy the Fourth Amendment. See Lopez, 547 F.3d at 371 (rejecting the argument that "the failure to itemize each object found" during an inventory search was "incompatible with the Supreme Court's warning that inventory searches should be designed to produce an inventory" and holding that a uniform policy "as to whether insignificant items of little or no value must be explicitly itemized" is not required (internal quotation marks omitted)).
Finally, at the close of the evidentiary hearing, Bignon's counsel suggested that the inventory search here was unlawful because Bignon's arrest and detention in the jail cell violated NYPD policy — most prominently, a recently adopted policy with respect to the handling of those smoking marijuana in public. See Tr. 157-58 ("[I]f they're making an arrest in violation of NYPD policy, they can't then make an inventory search because that inventory search wouldn't actually be authorized under the police department's policy"); see Tr. 140-42 (questioning Officer Seward with respect to whether the arrest of Bignon was consistent with the recently adopted policy). That policy states that "certain qualified violators . . . may be charged with Unlawful Possession of Marijuana and issued a Criminal Court summons in lieu of arrest." NYPD Patrol Guide Procedure No. 209-38 (admitted as GX-3). The Court is not convinced, however, that Bignon's arrest ran afoul of this policy because a "[d]isqualifying factor[]" is that the "[p]erson is not properly identified," id., and Bignon refused to provide his name or identification when initially confronted on the street, see Tr. 31.
But even assuming arguendo that Bignon's arrest was a violation of NYPD policy, it does not follow that the search of his backpack was a violation of the Fourth Amendment. The inventory search exception depends on the existence of an established policy or procedure and, to that extent, involves "a special incorporation of state law into Fourth Amendment jurisprudence." United States v. Gonzales, 535 F.3d 1174, 1183 (10th Cir. 2008) (internal quotation marks omitted). But Bignon fails to cite, and the Court has not found, any authority for the proposition that a search conducted in accordance with a valid inventory search policy is rendered unconstitutional because the arrest preceding the search, although supported by probable cause, did not accord with a state policy.
The Court concurs with that approach. The inventory search exception does depend on a showing that the police had "legitimate custody of the property to be inventoried, either as a result of lawful arrest or by some other method." United States v. Jenkins, 876 F.2d 1085, 1089 (2d Cir. 1989) (citations omitted); accord Mendez, 315 F.3d at 138. But here, as in the searchincident-to-lawful-arrest context, courts have "equated a lawful arrest with an arrest based on probable cause." Moore, 553 U.S. at 177; see, e.g., Thompson, 29 F.3d at 65 (rejecting a defendant's challenge to his arrest on the ground that it was "pretext for conducting an inventory search," explaining that "whether the stop was pretextual or not . . . is irrelevant to determining the arrest's validity," and then proceeding to address the validity of the ensuing inventory search separately); United States v. White, 298 F.Supp.3d 451, 457-59 (E.D.N.Y. 2018) (finding that the police had "legitimate custody" of the defendant's backpack because he had been "lawfully arrested" — that is, the police "had probable cause to arrest" him). That is for good reason. The probable cause requirement, in and of itself, provides adequate protection against unreasonable searches and seizures of the person and, by extension, any property accompanying the person. See Moore, 553 U.S. at 173-76. And so long as that requirement is met, "[t]he interests justifying" an otherwise proper inventory search "are present whenever an officer makes an arrest," without regard for whether the arrest is consistent with state policy or not. Id. at 177; see id. ("The state officers arrested Moore, and therefore faced all the risks that are an adequate basis for treating all custodial arrests alike for purposes of search justification." (internal quotation marks omitted)).
In short, an otherwise proper inventory search is not rendered unconstitutional because the arrest or detention that preceded it, while supported by probable cause, violated a state or local policy.
For the foregoing reasons, the Court concludes that the search in this case did not violate Bignon's Fourth Amendment rights. Accordingly, his motion to suppress is DENIED. The Clerk of Court is directed to terminate Docket No. 10.
SO ORDERED.
