Filed: Jun. 12, 2014
Latest Update: Mar. 02, 2020
Summary: Filed: June 12, 2014 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4049 (1:12-cr-00093-CCE-1) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAWUD ALI SAAFIR, Defendant – Appellant. O R D E R The Court amends its opinion filed June 11, 2014, as follows: On page 4, third paragraph, line 3 –- the word “opened” is corrected to read “unopened.” For the Court – By Direction /s/ Patricia S. Connor Clerk PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4049 UN
Summary: Filed: June 12, 2014 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4049 (1:12-cr-00093-CCE-1) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAWUD ALI SAAFIR, Defendant – Appellant. O R D E R The Court amends its opinion filed June 11, 2014, as follows: On page 4, third paragraph, line 3 –- the word “opened” is corrected to read “unopened.” For the Court – By Direction /s/ Patricia S. Connor Clerk PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4049 UNI..
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Filed: June 12, 2014
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4049
(1:12-cr-00093-CCE-1)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAWUD ALI SAAFIR,
Defendant – Appellant.
O R D E R
The Court amends its opinion filed June 11, 2014, as
follows:
On page 4, third paragraph, line 3 –- the word
“opened” is corrected to read “unopened.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAWUD ALI SAAFIR,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00093-CCE-1)
Argued: January 30, 2014 Decided: June 11, 2014
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Reversed, vacated, and remanded by published per curiam opinion.
ARGUED: John Archibald Dusenbury, Jr., OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant.
Michael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C.
Allen, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
PER CURIAM:
The Fourth Amendment to the United States Constitution
protects individuals from unreasonable searches and seizures:
“The right of the people to be secure . . . against unreasonable
searches and seizures, shall not be violated[.]” U.S. Const.
amend. IV. A search can be “unreasonable” in a variety of ways,
but, quintessentially, a search is “unreasonable” if it is
unsupported by probable cause, that is, where the known facts
and circumstances are insufficient to warrant a person of
reasonable prudence in the belief that contraband or evidence of
a crime will be found. Ornelas v. United States, 517 U.S. 690,
696 (1996).
Appellant Dawud Ali Saafir entered a conditional guilty
plea to one count of being a felon in possession of a firearm.
18 U.S.C. §§ 922(g)(1), 924(a)(2). A law enforcement officer
located the firearm after conducting a search of Saafir’s
vehicle during a traffic stop. Saafir challenged the legality of
the search, but the district court denied his motion to
suppress.
We hold that the law enforcement officer’s search of
Saafir’s car was unreasonable within the meaning of the Fourth
Amendment because the probable cause on which the search was
based was tainted: Saafir’s incriminatory statements that gave
rise to probable cause to search the car were elicited in
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response to the officer’s manifestly false assertion that he had
probable cause to search the car and his suggestion that, with
or without Saafir’s consent, he would proceed with the search.
The facts are undisputed. A Durham, North Carolina law
enforcement officer pulled over Saafir in a residential area for
speeding and driving a vehicle with excessively tinted windows.
The officer requested Saafir’s license and registration; Saafir
produced a valid state identification card, but told the officer
that his license had been revoked. The officer ran Saafir’s name
through the Durham Police Department’s databases, which
confirmed that Saafir’s license had been revoked. Based on the
information retrieved in the check, the officer, in his words,
“determined that Mr. Saafir was considered an armed and
dangerous person, a validated gang member, a S.T.A.R.S.
offender, that he flees,” and had an order to stay away from any
property of the Durham Public Housing Authority. J.A. 45, 63.
The officer described S.T.A.R.S. offenders as ex-offenders who
are on their “last chance”: “if they are caught selling drugs,
caught with guns, caught committing any more crimes, . . . the
state is not going to tolerate it any longer, and . . . they
will be prosecuted to the maximum [extent of the law], whether .
. . at the state . . . or federal level.” J.A. 46. After running
the check, the officer radioed for back-up.
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Although he did not write a ticket for speeding, the
officer wrote warning tickets for driving with a revoked license
and tinted windows. After instructing Saafir to exit the car so
that he could explain the tickets, the officer noticed a hip
flask commonly used to carry alcohol in the pocket of the
driver-side door. (The officer never confirmed that there was
alcohol or anything else in the flask.) Once Saafir exited the
car, the officer explained the warning tickets to Saafir and
returned his identification documents.
The officer then told Saafir that there had been shootings
and violence in the area, and he asked if he could frisk Saafir.
Saafir consented. The frisk revealed nothing. By this point, a
second uniformed officer in a marked police vehicle had arrived.
The first officer continued his investigation by asking if he
could search Saafir’s car. Saafir refused to consent, explaining
that it was not his car. The officer persisted, stating that a
temporary user of the car could consent to a search, but Saafir
demurred. As the district court found, the officer “basically
tried to talk him into letting him search the car.” J.A. 155.
A North Carolina statute makes it an infraction for any
person to “possess an alcoholic beverage other than in the
unopened manufacturer’s original container.” N.C. Gen. Stat.
§ 20-138.7(a1). Apparently relying on this statute, and faced
with Saafir’s refusal to consent to a search of the vehicle, the
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officer instructed Saafir that he had probable cause to search
the car based on the presence of the hip flask. Upon hearing
this, Saafir “bowed his head and gave out a sigh,” J.A. 63, but
did not express consent.
Having declared his authority and his intent to search the
car, the officers asked Saafir if there was anything they should
know about inside; Saafir responded that there “might” be
something. When pressed for clarification, Saafir responded that
there “might” be a gun in the vehicle, and that it “might” be
under the seat. J.A. 156. The officers searched the car, but did
not find a weapon; they located, however, a small amount of
“aged, dried-up marijuana” in the pocket of the driver-side
door. J.A. 54. Neither officer touched the flask. There was no
evidence that Saafir had been drinking - there was no odor of
alcohol on Saafir or in the car. Upon request, Saafir provided
the key to the locked glove compartment, where the pistol was
found.
A grand jury indicted Saafir on one count of violating 18
U.S.C. §§ 922(g)(1) and 924(a)(2), for being a felon in
possession of a firearm. Saafir moved to suppress the gun and
his statements relating to the gun. The district court denied
the motion, finding, among other things, that Saafir’s admission
that there “might” be a gun in the car gave the officers
probable cause to search the vehicle. Saafir entered a
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conditional guilty plea and the district court sentenced him to
23 months in custody and a three-year term of supervised
release. Saafir timely appealed the denial of the motion.
Saafir raises several arguments on appeal, but the
contention on which we focus is that the district court erred
when it failed to suppress the evidence obtained through the
search of the car because the officer was only able to obtain
probable cause to conduct the search – Saafir’s admission that
there “might” be something in the vehicle – after falsely
asserting that he had probable cause to search Saafir’s car. We
agree. We hold that the officer’s assertion that the existence
of the hip flask provided him with probable cause to search the
car was an independent, antecedent threat to violate the Fourth
Amendment that ultimately fatally taints the search of the car
and the seizure of the gun. We note that because this contention
was not precisely raised below, we ordered supplemental briefing
and we thank counsel for their submissions. We exercise our
discretion to consider the contention because a litigant may
make any argument on appeal in support of a federal claim
properly made below. Citizens United v. Federal Election
Commission, 558 U.S. 310, 330-31 (2010). While we review the
district court’s factual findings for clear error, we review its
legal conclusions de novo. United States v. Digiovanni,
650 F.3d
498, 506 (4th Cir. 2011).
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Importantly, the Government concedes that the officer’s
assertion that the hip flask gave him probable cause to search
the car was a misstatement of the law. We agree. Probable cause
to search exists “where the known facts and circumstances are
sufficient to warrant a [person] of reasonable prudence in the
belief that contraband or evidence of a crime will be found.”
Ornelas, 517 U.S. at 696. The officer admitted that he never
checked that the flask had alcohol (or anything else) in it. And
he admitted that there was no other evidence suggesting that
Saafir was under the influence of alcohol or intoxicated.
Accordingly, there was no probable cause to search the car for
any crime related to alcohol in a flask, and certainly not for
any other crime.
Accordingly, we conclude that the officer’s false assertion
of his authority to search the car irreparably tainted Saafir’s
incriminatory statements and the ensuing search of the car. A
search or seizure is unreasonable and therefore unconstitutional
if it is premised on a law enforcement officer’s misstatement of
his or her authority; this principle stretches at least as far
back as Bumper v. North Carolina, 391 U.S. 543, 547-50 (1968),
in which the Supreme Court invalidated a defendant’s consent to
the search of her home after the officer stated falsely that he
possessed a warrant. Here, we have Saafir’s incriminatory
statements giving rise to probable cause to search the car, not
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his express consent to a search of the vehicle. The distinction
matters not. The principle that animates these cases is simple:
a search is unreasonable -– and so violates the Fourth Amendment
–- if its justification is grounded in officers “engaging or
threatening to engage in conduct that violates the Fourth
Amendment.” Kentucky v. King, 131 S. Ct. 1849, 1858 (2011).
Thus, just as an officer may not manufacture exigent
circumstances to justify a warrantless search by means that run
afoul of the Fourth Amendment, id., an officer may not
manufacture probable cause by unlawful means, including by way
of a false claim of legal authority that constitutes a threat to
violate the Fourth Amendment. See United States v. Guzman,
739
F.3d 241, 247 (5th Cir. 2014). “An inadmissible statement cannot
constitute probable cause to support an otherwise illegal
search. [The officer’s] statement, that he was ‘going to search
the car,’ could constitute a false claim of lawful authority
affecting the validity of” the defendant’s subsequent statement
that he had a gun in the car.
Id. (remanding the case for
further fact-finding).
The Government concedes that a law enforcement officer may
not misstate his lawful authority, and it concedes that the
officer misstated his authority in this case, but it maintains
that the misstatement was irrelevant because Saafir’s admissions
8
giving rise to probable cause were not a direct product of the
officer’s flexing of his authority.
The record overwhelmingly demonstrates otherwise. Saafir
refused to consent to a search of the car multiple times.
Instead of consenting (as he had to the pat-down), he stoutly
resisted the officer’s efforts to, as the district court found,
“talk him into letting him search the car.” J.A. 155. It was
only after the officer asserted that a search of the car was
inevitable (by declaring that he had probable cause to do so)
and continued to press him with questions about the contents of
the car that Saafir admitted the presence of the gun in the car.
The causal connection is clear: Saafir made incriminating
statements shortly after the officer’s false assertion of the
existence of probable cause to search the car. Here, as a matter
of law, probable cause for a warrantless search of the car was
rooted directly in the elicitation of incriminating statements
made in response to the officer’s dishonest, reckless, or
objectively unreasonable asserted belief in the existence of
probable cause. Cf. United States v. Leon, 468 U.S. 897, 925
(1984).
Saafir’s incriminatory statements could not, therefore,
serve as a proper basis for probable cause for a search of the
car. Consequently, both the statements and the tangible fruits
of the ensuing search of the vehicle should have been
9
suppressed. Wong Sun v. United States, 371 U.S. 471, 487-88
(1963). We therefore reverse the district court’s order denying
the suppression motion, vacate Saafir’s conviction, and remand
this case for further proceedings consistent with this opinion.
REVERSED, VACATED, AND REMANDED;
MANDATE SHALL ISSUE FORTHWITH
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