United States v. Quentin Ferebee

957 F.3d 406

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 22, 2020
• Docket: 18-4266
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4266

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

QUENTIN JAVON FEREBEE,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:17-cr-00218-MOC-DSC-1)

Argued: January 31, 2019 Decided: April 22, 2020

Before AGEE and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Traxler wrote the majority opinion, in which Judge Agee joined. Judge Floyd wrote a dissenting opinion.

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. TRAXLER, Senior Circuit Judge:

Quentin Javon Ferebee, a convicted felon, entered a conditional guilty plea to

unlawful possession of a firearm, see 18 U.S.C. § 922(g), and was sentenced to 10 months’

imprisonment and two years’ supervised release. Ferebee’s plea preserved his right to

appeal the district court’s denial of Ferebee’s motion to suppress. We find no reversible

error and affirm. 1

I.

On March 23, 2017, Ferebee was visiting his friend Shana Dunbar at her house in

Charlotte, North Carolina. Dunbar was on probation for a state offense, although Ferebee

was unaware of that fact. Ferebee was sitting on the sofa in the living room with a

marijuana blunt in his hand when law enforcement officials arrived to conduct a

warrantless search, as authorized by the terms of Dunbar’s probation. A black backpack

was on the floor, leaning against the sofa where Ferebee was sitting. Probation Officer

Jason Bensavage asked Ferebee to stand up so he could check the sofa for weapons.

1 After oral argument in this case, the Supreme Court issued its opinion in Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that the government is obligated to prove that a defendant charged under 18 U.S.C. § 922(g) has knowledge of his relevant status that prohibits him from lawfully possessing a firearm. See id. at 2194 (“To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”). Ferebee filed a supplemental brief raising a Rehaif claim, and we placed this case in abeyance pending this circuit’s resolution of the questions arising under Rehaif. On April 16, 2020, we granted Ferebee’s request to withdraw his Rehaif claim and remove his case from abeyance.

2 Ferebee stood up, picked up the backpack with his left hand, and held it out as another

officer patted down Ferebee.

When Officer Bensavage asked Ferebee if he had any weapons on him or in the bag,

Ferebee “stated that the bag was actually not his.” J.A. 48. Officer B.M. Sinnott arrested

Ferebee for possession of marijuana and began placing Ferebee in handcuffs. As Ferebee

was being handcuffed, Officer Bensavage searched the sofa and found a handgun under

the cushions. Detective Thomas Grosse took the backpack from Officer Sinnott, who took

Ferebee outside, leaving open the door to the house as they exited. Detective Grosse

remained in the house and searched the backpack less than a minute after Officer Sinnott

took Ferebee outside. Detective Grosse found Ferebee’s identification card inside the

backpack, along with a firearm, marijuana, and drug paraphernalia.

Officers transported Ferebee to the police station after learning of his prior felony

conviction. At the station, Ferebee told police, among other things, that the backpack and

the gun inside it belonged to him.

Ferebee was indicted on a charge of unlawful possession of a firearm by a convicted

felon. He pleaded not guilty and sought to suppress the evidence recovered from the

backpack and his statements to the police. Ferebee contended that he had a reasonable

expectation of privacy in the backpack and that the warrantless search violated his Fourth

Amendment rights. At the conclusion of the hearing on the motion to suppress, the district

court issued an oral ruling denying the motion, concluding that Ferebee lacked standing to

challenge the search after denying ownership of the backpack and, alternatively, that the

search was a lawful search incident to arrest. The district court subsequently issued a

3 written order denying the motion. The written order included analysis that was not

contained in the oral ruling. Ferebee thereafter pleaded guilty but preserved his right to

appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2).

Ferebee challenges both portions of the district court’s analysis on appeal. As to the

question of standing, Ferebee relies on the “collective knowledge” doctrine to argue that

his disavowal of ownership of the backpack does not prevent him from challenging the

search because the officer who actually searched the backpack did not hear Ferebee deny

ownership. As to the search-incident-to-arrest question, Ferebee argues that the

warrantless search was improper because he was outside the house and handcuffed when

the backpack was searched.

II.

A.

We begin with the “collective knowledge” doctrine. When considering the

existence of probable cause for warrantless searches or arrests, questions sometimes arise

as to whether probable cause must be established only through the information personally

known by the arresting or searching officer, or whether information known by other

officers may also be factored into the equation. Although some circuits permit the

aggregation of individual bits of independent knowledge, see United States v. Massenburg,

654 F.3d 480, 494 (4th Cir. 2011), this circuit limits application of the doctrine to cases

where the search or arrest is directed by an officer who himself has sufficient knowledge

to amount to probable cause:

4 [T]he collective-knowledge doctrine simply directs us to substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer; it does not permit us to aggregate bits and pieces of information from among myriad officers, nor does it apply outside the context of communicated alerts or instructions.

Id. at 493; see United States v. Laughman, 618 F.2d 1067, 1072-73 (4th Cir. 1980) (“The

law seems to be clear that so long as the officer who orders an arrest or search has

knowledge of facts establishing probable cause, it is not necessary for the officers actually

making the arrest or conducting the search to be personally aware of those facts.”).

In this case, Officer Bensavage testified that Ferebee told him the backpack was not

his and that Officer Sinnott then handed the backpack to Detective Grosse, who searched

the backpack shortly thereafter. Detective Grosse did not hear Ferebee disclaim ownership,

and there is no evidence in the record that Officer Bensavage gave any instructions to

Grosse. Ferebee thus contends that the collective-knowledge doctrine prevents us from

attributing Officer Bensavage’s knowledge to Detective Grosse. And because Detective

Grosse did not know that Ferebee had disclaimed ownership of the backpack, Ferebee

argues that the warrantless search was unreasonable. We disagree. As we will explain, the

collective-knowledge doctrine simply has no bearing on the propriety of the search in this

case.

B.

As the Supreme Court has long made clear, “Fourth Amendment rights are personal

rights which . . . may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34

(1978) (internal quotation marks omitted). The “capacity to claim the protection of the

Fourth Amendment depends . . . upon whether the person who claims the protection of the

5 Amendment has a legitimate expectation of privacy in the invaded place.” Id. at 143. “In

order to demonstrate a legitimate expectation of privacy, [a defendant] must have a

subjective expectation of privacy, and that subjective expectation must be reasonable.”

United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (alteration and internal quotation

marks omitted).

The requirement that the defendant have a reasonable expectation of privacy in the

property -- often characterized as whether the defendant has “standing” to challenge the

search -- is not jurisdictional, but it is nonetheless a threshold inquiry that is preliminary to

and distinct from the question of whether a warrant was required: “The concept of standing

in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person

must have a cognizable Fourth Amendment interest in the place searched before seeking

relief for an unconstitutional search . . . .” Byrd v. United States, 138 S. Ct. 1518, 1530

(2018) (emphasis added); id. at 1526 (“Whether a warrant is required is a separate question

from the one the Court addresses here, which is whether the person claiming a

constitutional violation has had his own Fourth Amendment rights infringed by the search

and seizure which he seeks to challenge.” (emphasis added)(internal quotation marks

omitted)); United States v. Bellina, 665 F.2d 1335, 1339 (4th Cir. 1981) (“[T]he threshold

question in every suppression case is the existence of a reasonable expectation of privacy

in the area searched.” (internal quotation marks omitted)). Accordingly, if the individual

seeking to challenge a search does not have a legitimate expectation of privacy in the

property or place being searched, the individual lacks “standing” and the inquiry ends

without consideration of the merits of the search claim.

6 “The law is well established that a person who voluntarily abandons property loses

any reasonable expectation of privacy in the property and is consequently precluded from

seeking to suppress evidence seized from the property.” United States v. Leshuk, 65 F.3d

1105, 1111 (4th Cir. 1995); accord United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.

2005). That rule makes sense, as one who abandons property would have no subjective

expectation that the property would remain private, nor would society recognize any such

expectation as reasonable. For purposes of challenging a search, this court and most others

treat a disavowal of ownership of property as an abandonment of the property. See United

States v. Han, 74 F.3d 537, 543 (4th Cir. 1996) (“Denial of ownership . . . constitutes

abandonment.”); Leshuk, 65 F.3d at 1107, 1111 (defendant who disavowed ownership of

backpack and garbage bag found in field where marijuana was growing lacked a reasonable

expectation of privacy and therefore could not challenge the warrantless search); accord

United States v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994) (“One who abandons ownership

forfeits any entitlement to rights of privacy in the abandoned property, and one who

disclaims ownership is likely to be found to have abandoned ownership.” (citation

omitted)); United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991) (“It is well settled that

an otherwise legitimate privacy interest may be lost by disclaiming or abandoning property,

especially when actions or statements disavow any expectation of privacy.”); United States

v. Frazier, 936 F.2d 262, 265 (6th Cir. 1991); United States v. Ruiz, 935 F.2d 982, 984 (8th

Cir. 1991). That is likewise a sensible rule, as one who disavows ownership is

disassociating himself from the property such that any expectation that the property would

remain private would not be reasonable. See Zapata, 18 F.3d at 978 (“[D]isclaiming

7 ownership is tantamount to declaring indifference, and thus negates the existence of any

privacy concern in a container’s contents.”); Torres, 949 F.2d at 608 (“Neither possession

nor ownership of property establishes a legitimate expectation of privacy unless the party

vigilantly protects the right to exclude others.”); United States v. Lewis, 921 F.2d 1294,

1302 (D.C. Cir. 1990) (“A voluntary denial of ownership demonstrates sufficient intent of

disassociation to prove abandonment.”).

Accordingly, in cases involving ownership disclaimers, the inquiry is whether the

defendant’s words or actions can reasonably be understood as disclaiming any privacy

interests in the property. See United States v. Small, 944 F.3d 490, 502 (4th Cir. 2019)

(“Intent to abandon may be inferred from words spoken, acts done, and other objective

facts.” (internal quotation marks and alteration omitted)), cert. denied, No. 19-1102, 2020

WL 1668360 (U.S. Apr. 6, 2020); Stevenson, 396 F.3d at 546 (explaining that the test for

abandonment is whether the defendant “retains a reasonable expectation of privacy” in the

property at issue (internal quotation marks omitted)). The inquiry focuses on objective

evidence of “the intent of the person who is alleged to have abandoned the place or object.”

United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989); accord Bond v. United States,

77 F.3d 1009, 1013 (7th Cir. 1996) (“In determining whether a person has abandoned

property, we can infer from words spoken, acts done, and other objective facts whether he

voluntarily discarded, left behind, or otherwise relinquished his interest in the property in

question.” (internal quotation marks and emphasis omitted)).

While the abandonment inquiry focuses solely on the intent of the defendant, the

collective-knowledge doctrine focuses solely on the knowledge of the police officers; the

8 knowledge or intent of the defendant has no relevance to the question of whether the facts

known to the police are sufficient to establish probable cause. Given the differing focuses

of the inquiries, it is clear to us that the collective-knowledge doctrine for police officers

has no bearing on the separate question of abandonment by a defendant.

As noted, abandonment turns on the intent of the defendant as revealed through his

words or actions, and it can occur without the contemporaneous knowledge of any other

person. For example, a defendant could abandon a backpack by choosing to leave it as he

disembarks from a cross-town bus. The abandonment is complete when the defendant

deliberately walks away without the bag, even if there was no witness to the act. A

defendant could also abandon a backpack by leaving it on a sofa at a party and answering,

“it isn’t mine,” when asked by a fellow party-goer. The abandonment is complete upon

the disclaimer of ownership.

In this case, the abandonment was complete when Ferebee told Officer Bensavage

that the backpack was not his. At that point, Ferebee disassociated himself from the

backpack and lost any legitimate expectation of privacy and the “capacity” to challenge its

subsequent treatment. Rakas, 439 U.S. at 143 (explaining that the “capacity to claim the

protection of the Fourth Amendment depends . . . upon whether the person who claims the

protection of the Amendment has a legitimate expectation of privacy in the invaded

place”). Because Ferebee lost his privacy interest in the backpack after disavowing

ownership to Bensavage, it is simply irrelevant that Officer Grosse did not hear the

statement. Indeed, even if Officer Grosse believed at the time of the search that the

backpack belonged to Ferebee, our analysis would not change. The search took place after

9 conduct that the district court reasonably found sufficient to establish abandonment.

Ferebee lost any expectation of privacy at that moment, and the subsequent search therefore

did not violate Ferebee’s Fourth Amendment rights. Accordingly, Ferebee lacks the

capacity to bring a Fourth Amendment challenge to the search, without regard to Officer

Grosse’s knowledge or intent. See Han, 74 F.3d at 545 (“[W]hether the officers knew that

Han owned the bag [in which he disavowed ownership] is irrelevant. The constitutional

property right belonged to Han, and his abandonment of that right did not depend on

whether the officers knew that it existed.”).

We recognize that some out-of-circuit cases refer to the knowledge of the

“searching” or “investigating” officer when discussing the standard for abandonment. See,

e.g., United States v. Camberos-Villapuda, 832 F.3d 948, 952 (8th Cir. 2016)

(“Abandonment is determined based on the objective facts available to the investigating

officers at the time they conducted the challenged search.” (emphasis added)); United

States v. Pitts, 322 F.3d 449, 456 (7th Cir. 2003) (“To demonstrate abandonment, the

government must prove by a preponderance of the evidence that the defendant’s voluntary

words or actions would lead a reasonable person in the searching officer’s position to

believe that the defendant relinquished his property interests in the item to be searched.”

(emphasis added)). Those cases, however, did not involve a situation where only some of

the officers on the scene were aware of the facts establishing abandonment. Because that

issue was not presented, it is not surprising that the description of the evidence necessary

to establish abandonment referred to the searching or investigating officers. The courts

were not silently importing the collective-knowledge doctrine into an unrelated area of the

10 law, but were instead simply stating the rules governing abandonment in the context of the

facts of those cases. See United States v. Alexander, 573 F.3d 465, 473 (7th Cir. 2009)

(“Alexander had disclaimed that the vehicle was his. That is enough to establish

abandonment despite the officers’ belief that the [vehicle] was Alexander’s.”); United

States v. Ruiz, 935 F.2d 982, 984 (8th Cir. 1991) (disclaimer of ownership of luggage

sufficient to support district court’s conclusion that luggage was abandoned). Accordingly,

we do not believe that the cases referring to the knowledge of the searching officers can be

understood as holding that where a defendant abandons property in the presence of the

multiple law enforcement officers, a subsequent search is lawful only if it is performed by

an officer who personally and contemporaneously witnessed the evidence showing

abandonment. Indeed, such a rule would be inconsistent with the well-established rule that

a search of abandoned property does not implicate the Fourth Amendment. See United

States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997) (“A warrantless search of abandoned

property does not implicate the Fourth Amendment, for any expectation of privacy in the

item searched is forfeited upon its abandonment.”); Bond v. United States, 77 F.3d 1009,

1014 (7th Cir. 1996) (“Because Bond abandoned the suitcase before the police searched it,

our Fourth Amendment inquiry ends.”). We therefore reject Ferebee’s claim that the

collective-knowledge doctrine has any bearing on the propriety of the district court’s

conclusion that Ferebee abandoned the backpack.

C.

Ferebee raises other challenges to the district court’s abandonment finding. He

contends that his disavowal of ownership is insufficient to show abandonment given that

11 he maintained physical possession of the backpack even after his statement. We disagree.

Continued physical possession is certainly a fact that a district court may consider in a

proper case, but the court is not precluded from finding abandonment in cases where the

defendant has physical possession of the property he has disavowed.

Ferebee also contends the district court erred by concluding in its written order that

when he was being patted down, he “extended [the backpack] towards the officers,” an

action that the district court found “reinforce[d] the disclaimer.” J.A. 98; see also J.A. 97

(stating that Ferebee “disclaimed ownership of the backpack while extending the backpack

in the direction of the approaching officers”). The district court did not include that factual

finding when orally denying the suppression motion at the conclusion of the hearing.

Ferebee argues that he had the backpack in his hand as he held his arm away from his body

to facilitate the pat-down. He contends that no witness testified that Ferebee was offering

the backpack to the police and that the district court’s finding thus is not supported by the

evidence.

While Ferebee is correct that no witness directly testified that Ferebee held the

backpack out towards the officers, it is equally true that no witness directly testified that

Ferebee was holding the backpack out to facilitate the pat-down -- both versions depend

on inferences drawn from the facts as presented at the suppression hearing. As both

versions are plausible and reasonable, our standard of review requires us to defer to the

inference drawn by the district court. See, e.g., United States v. Lewis, 606 F.3d 193, 197

(4th Cir. 2010) (“In assessing a district court’s decision on a motion to suppress, . . . . we

must construe the evidence in the light most favorable to the prevailing party, and give due

12 weight to inferences drawn from those facts by resident judges and law enforcement

officers.” (internal citation and quotation marks omitted)). But even if we were to assume

that the inference drawn by the district court was not reasonable, reversal would not be

required. Even if Ferebee were simply holding the bag out from his body but not holding

it towards the officers, the district court found that Ferebee previously had made a “clear,

unequivocal statement” disavowing ownership of the backpack and that he abandoned the

backpack at that point. J.A. 82; see also J.A. 98 (“[D]efendant’s words were an affirmative

disavowal of ownership. . . .”). Although “[a]bandonment should not be casually inferred,”

Small, 944 F.3d at 502, our cases have made it clear that a disavowal of ownership is alone

enough to support a finding of abandonment. See Han, 74 F.3d at 543 (“Denial of

ownership . . . constitutes abandonment.”); accord Leshuk, 65 F.3d at 1111 (affirming

district court’s finding of abandonment where defendants disclaimed ownership of bags

found to contain marijuana). The district court’s conclusion can therefore be affirmed

without consideration of the challenged inference. See United States v. Smith, 395 F.3d

516, 519 (4th Cir. 2005) (explaining that this court may affirm a district court’s ruling on

a motion to suppress on any ground apparent from the record).

D.

The dissent contends that the district court’s determination that Ferebee abandoned

the backpack is a legal conclusion to be reviewed de novo, rather than a factual finding to

which we must defer unless clearly erroneous. We disagree.

As our cases have made clear, the ultimate question of whether a given set of facts

gives rise to a reasonable expectation of privacy is a legal question. See Stevenson, 396

13 F.3d at 545; United States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980). But it is

the district court that tells us what that set of facts is, and the district court’s determination

of those underlying facts is subject to the deferential clear-error standard of review. That

distinction is evident in Stevenson, the case upon which the dissent relies. In Stevenson,

the question was whether the defendant had abandoned his privacy interests in an apartment

he had been renting on a week-to-week basis. The district court concluded, based on a

letter written by the defendant, that the defendant “had formed an intention not to return to

the apartment,” 396 F.3d at 540, and that the defendant therefore did not have a reasonable

expectation of privacy at the time law enforcement conducted a warrantless search of the

apartment. We reviewed the district court’s determination that the letter showed the

defendant relinquished his interest in the apartment for clear error. See id. at 544 (“[T]he

district court found as facts that, by the time of the search on January 24, 2003, Stevenson

had ‘no intention of returning to his apartment’ and ‘no longer considered himself a

resident of the apartment.’. . . Applying the clearly erroneous standard to these findings,

we conclude that the district court did not clearly err.”). We then went on to consider de

novo whether the facts as found by the district court were sufficient as a matter of law to

show that the defendant had no reasonable expectation of privacy in the apartment at the

time of the search. See id. at 545 (“Having affirmed the district court’s factual finding that

Stevenson had no intention to return to the apartment, we still must turn to the question of

whether that finding leads to the legal conclusion that any expectation of privacy that

Stevenson claimed in the apartment at the time of the search was unreasonable.”). In this

case, the district court held that Ferebee abandoned his privacy interest in the backpack

14 when he disclaimed ownership of it. That is a finding of fact, just as the relinquishment

finding in Stevenson was a finding of fact, and we must defer to it unless clearly erroneous.

The dissent also contends the district court’s abandonment finding was clearly

erroneous, arguing that “the evidence of abandonment does not preponderate,” and that

while some evidence “weighs in the government’s favor,” that evidence is

“counterbalanced” by other evidence favoring Ferebee. Dissenting Opinion, infra at 28.

As those statements make clear, the dissent’s real complaint is with the weight that the

district court gave to the evidence presented at the suppression hearing. The dissent’s

approach, however, is inconsistent with our limited and deferential role applying clear-

error review.

“A court reviewing for clear error may not reverse a lower court’s finding of fact

simply because it would have decided the case differently. Rather, a reviewing court must

ask whether, on the entire evidence, it is left with the definite and firm conviction that a

mistake has been committed.” United States v. Wooden, 693 F.3d 440, 451 (4th Cir.

2012) (internal quotation marks and alteration omitted). “If the district court’s account of

the evidence is plausible in light of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470

U.S. 564, 573–74 (1985). The dissent acknowledges that there is evidence (and case law)

supporting the district court’s conclusion that Ferebee abandoned the backpack by

disclaiming ownership, and the dissent describes the issue as “a close call.” Dissenting

Opinion, infra at 28. For a factual finding to be clearly erroneous, however, the finding

15 must be “against the clear weight of the evidence considered as a whole.” United States v.

Martinez-Melgar, 591 F.3d 733, 738 (4th Cir. 2010) (internal quotation marks omitted)

(emphasis added). In our view, the district court’s resolution of a “close” factual question

that is based on evidence found credible by the district court cannot be against the “clear

weight” of the evidence. We therefore disagree with the dissent’s view that the district

court clearly erred by finding as a factual matter that Ferebee abandoned his interests in the

backpack when he disclaimed ownership of it.

E.

Because the record supports the district court’s conclusion that Ferebee clearly and

unequivocally disavowed ownership of the backpack, we affirm the district court’s

conclusion that Ferebee abandoned the backpack and any legitimate expectation of privacy

in its contents. The collective-knowledge doctrine has no application to the issue in this

case, and the fact that the officer who searched the backpack did not hear the disavowal of

ownership does not undermine or otherwise affect the abandonment finding. Even if the

searching officer believed that the backpack belonged to Ferebee, he abandoned any

legitimate expectation of privacy in the backpack before it was searched, and he therefore

lacks the capacity to challenge the subsequent search. 2

2 Ferebee also contends the district court erred by concluding in its written order that the suppression of the contents of the backpack was not required under the inevitable discovery rule. In the district court’s view, an inventory search of the backpack would have eventually been undertaken and the evidence inevitably discovered. Because the government did not raise this issue below and offered no evidence about the inventory search procedures of the law enforcement agencies involved in this case, the district court erred by relying on the inevitable-discovery doctrine. See United States v. Bullette, 854 (Continued) 16 III.

Even if we were to conclude that the district court erred by finding that Ferebee

abandoned the backpack, however, reversal would not be required. As we explain, we

agree with the district court that the search of the backpack was a proper search incident to

arrest for which no warrant was required under the facts of this case.

“A warrantless search by the police is invalid unless it falls within one of the narrow

and well-delineated exceptions” to the Fourth Amendment’s warrant requirement. Flippo

v. West Virginia, 528 U.S. 11, 13 (1999) (per curiam). One of these well-delineated

exceptions authorizes warrantless searches incident to arrest. See United States v.

Robinson, 414 U.S. 218, 224 (1973). “This exception provides that when law enforcement

officers have probable cause to make a lawful custodial arrest, they may -- incident to that

arrest and without a warrant -- search ‘the arrestee’s person and the area within his

immediate control.’” United States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006) (quoting

Chimel v. California, 395 U.S. 752, 763 (1969)). “Such searches have long been

considered valid because of the need ‘to remove any weapons that the arrestee might seek

to use in order to resist arrest or effect his escape’ and the need to prevent the concealment

or destruction of evidence.” New York v. Belton, 453 U.S. 454, 457 (1981) (alteration

F.3d 261, 265 (4th Cir. 2017) (“The inevitable-discovery doctrine . . . allows the government to use information obtained from an otherwise unreasonable search if [the government] can establish by a preponderance of the evidence that law enforcement would have ultimately or inevitably discovered the evidence by lawful means.” (emphasis added) (internal quotation marks omitted)). Nevertheless, our conclusion that the district court properly found that Ferebee abandoned the backpack makes the district court’s error harmless.

17 omitted) (quoting Chimel, 395 U.S. at 763). Nonetheless, “[t]he constitutionality of a

search incident to an arrest does not depend on whether there is any indication that the

person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone,

authorizes a search.” Michigan v. DeFillippo, 443 U.S. 31, 35 (1979).

Before the Supreme Court issued its opinion in Arizona v. Gant, 556 U.S. 332

(2009), courts routinely upheld searches incident to arrest in cases where the defendant was

handcuffed at the time of the search. See, e.g., Currence, 446 F.3d at 557-58; United

States v. McLaughlin, 170 F.3d 889, 893 (9th Cir. 1999); United States v. Abdul-Saboor,

85 F.3d 664, 668-69 (D.C. Cir. 1996); United States v. Mitchell, 64 F.3d 1105, 1110-11

(7th Cir. 1995); United States v. Helmstetter, 56 F.3d 21, 23 (5th Cir. 1995); United States

v. Horne, 4 F.3d 579, 586-87 (8th Cir. 1993). The question, then, is whether Gant changes

the analysis.

In Gant, the Supreme Court considered the scope of the search-incident-to-arrest

exception in a case involving a warrantless search of a vehicle. The Court held that, under

Chimel, a search of a vehicle incident to arrest is proper “when the arrestee is unsecured

and within reaching distance of the passenger compartment at the time of the search.” 556

U.S. at 343. The Court also held that “circumstances unique to the vehicle context justify

a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the

crime of arrest might be found in the vehicle.” Id. (internal quotation marks omitted). The

Court held that neither of those rationales applied under the facts of that case. First, the

passenger compartment of the vehicle would not reasonably have contained evidence of

the driving-under-suspension offense for which the defendant had been arrested. Id. at

18 344. Second, because the defendant had been removed from the vehicle, handcuffed, and

locked into the back seat of a police car when the search occurred, the “police could not

reasonably have believed . . . that Gant could have accessed his car at the time of the

search.” Id.

Ferebee argues that the search of his backpack was not proper under Gant because

he was handcuffed and standing outside of the house when the backpack was searched

inside. We disagree.

We need not decide whether Ferebee somehow waived his right to rely on Gant by

the manner in which he argued the issue below, as the government insists, nor need we

affirmatively decide the extent to which Gant applies to cases not involving vehicle

searches. Instead, we will assume for purposes of this case that Gant is not limited to

vehicle searches and that, under Gant, a search incident to arrest is proper only if the

defendant is “unsecured and within reaching distance” of the property being searched, such

that the police could reasonably believe that the defendant could access the property at the

time of the search. Even with that assumption, however, we cannot say the district court

erred in upholding the search, even though Ferebee was handcuffed at the time of the

search.

The information before the district court included a video recorded by Officer

Sinnott’s body camera. The video, which does not show the backpack search, begins as

Ferebee is being handcuffed behind his back and is then led by Officer Sinnott outside the

house through the open front door. The door remains open as Sinnott searches Ferebee

again. After the search, Ferebee, Sinnott and others mill about in a small area only a few

19 steps away from the open front door with the officers and backpack immediately inside the

front door. The video shows that Sinnott and Ferebee are never very far apart, but Ferebee

is not under Sinnott’s physical control. There is no impediment to Ferebee’s movement

beyond the handcuffs, and it is clear from the video that Ferebee is only a few feet outside

the house and thus could reach the other officers and the backpack within seconds.

Thus, the situation here is quite different from Gant. Whereas the defendant in Gant

was handcuffed and locked in the back of a police car, Ferebee was only a few steps away

from the backpack. He was handcuffed, but he still could walk around somewhat freely

and could easily have made a break for the backpack inside the house. Under these

circumstances, we do not believe that Ferebee was “secured” within the meaning of Gant.

As other courts have recognized, “handcuffs are not fail-safe,” United States v. Shakir, 616

F.3d 315, 320 (3d Cir. 2010), and they do not “instantly and completely eliminate all risks

that the suspect will flee or do [the officers] harm,” United States v. Sanders, 994 F.2d 200,

209 (5th Cir. 1993). Indeed, the body-camera video reveals that after Ferebee was

handcuffed and led outside, he managed to wad up and throw away his marijuana joint

without attracting the attention of the police officers around him. Thus, when considering

the propriety of the search, we need not rely solely on the speculative possibility that a

handcuffed defendant can still be dangerous, as we have in this case a handcuffed defendant

who in fact was able to tamper with evidence while handcuffed. We therefore conclude

that, despite the fact that Ferebee was handcuffed, the police reasonably could have

believed that Ferebee could have accessed the backpack. See Shakir, 616 F.3d at 321

(“[After Gant,] a search is permissible incident to a suspect’s arrest when, under all the

20 circumstances, there remains a reasonable possibility that the arrestee could access a

weapon or destructible evidence in the container or area being searched. Although this

standard requires something more than the mere theoretical possibility that a suspect might

access a weapon or evidence, it remains a lenient standard.”). Accordingly, we hold that

the warrantless search of the backpack was a proper search incident to arrest under Gant.

See United States v. Cook, 808 F.3d 1195, 1199-1200 (9th Cir. 2015) (search of backpack

was proper under Gant even though defendant was face-down on the ground with his hands

cuffed behind his back at the time of the search because there was an objectively reasonable

possibility that the defendant could break free and reach the backpack); United States v.

Perdoma, 621 F.3d 745, 750-53 (8th Cir. 2010) (warrantless search of bag in public bus

terminal was appropriate after Gant even though defendant was handcuffed and in the

presence of several police officers); Shakir, 616 F.3d at 321 (warrantless search of bag was

proper search-incident-to-arrest even though defendant was handcuffed and guarded by

two policeman when bag was at defendant’s feet and thus accessible to him). But see

United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019) (finding warrantless search of

closed purse improper under Gant where defendant was handcuffed and standing three feet

away from purse and one officer was standing next to her and two other officers were

nearby).

IV.

Accordingly, for the foregoing reasons, we reject Ferebee’s challenges to the

warrantless search of his backpack and affirm his conviction.

21 AFFIRMED

22 FLOYD, Circuit Judge, dissenting:

Unlike my colleagues in the majority, I do not believe that Ferebee abandoned his bag.

Nor do I believe that the government has shown that the warrantless search of Ferebee’s

bag fell within the search-incident-to-arrest exception. Therefore, I respectfully dissent.

1.

The threshold question in this case is whether Ferebee had a reasonable expectation of

privacy in his bag when Officer Grosse searched it. There is no serious question that

Ferebee had a reasonable expectation of privacy in his bag up to the moment he told Officer

Bensavage that the bag was not his. After all, it is well-established that people generally

have a reasonable expectation of privacy in the contents of opaque bags that they own (or

have permission to use) and that they keep within their immediate control. See, e.g., Bond

v. United States, 529 U.S. 334, 338 (2000) (bus passenger had reasonable expectation of

privacy in “opaque bag” that he had placed in overhead compartment “directly above his

seat”).

The government, however, argues that Ferebee abandoned his bag before Grosse

searched it, thereby giving up his reasonable expectation of privacy in the bag’s contents.

The argument itself is unsurprising: it has long been understood that a person cannot, under

the Fourth Amendment, challenge a warrantless search of abandoned property. Abel v.

United States, 362 U.S. 217, 241 (1960) (“There can be nothing unlawful in the

Government’s appropriation of . . . abandoned property.”). Property is abandoned when

23 the objective evidence indicates that the property owner or possessor of the property

voluntarily distanced himself from his interest in the property to such an extent that, in the

eyes of a reasonable person, it was not objectively reasonable for him to expect the property

to remain private. See United States v. Leshuk, 65 F.3d 1105, 1111 (4th Cir. 1995)

(abandonment turns on “whether the evidence sufficiently established that [the defendant]

abandoned any property interest he had” in property searched by the police); see also

United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (when government asserts

that property searched without a warrant was abandoned, “the critical inquiry is whether

the person prejudiced by the search voluntarily discarded, left behind, or otherwise

relinquished his interest in the property in question so that he could no longer retain a

reasonable expectation of privacy with regard to it at the time of the search.” (internal

punctuation and alterations omitted)).

In the proceedings below, the district court agreed with the government, concluding

that Ferebee had abandoned his bag before it was searched. According to the district court,

after the officers entered the room where he was sitting, Ferebee did two things: (1) he told

Officer Bensavage that the bag was not his, and (2) at the same time, he held the bag out

to a group officers as if inviting them to take it. The district court concluded that Ferebee,

by this combined statement and gesture, “unequivocally denied ownership of the bag”; in

doing so, he “abandoned the backpack” for purposes of the Fourth Amendment. J.A. 98,

100.

Notably, as I understand it, the district court’s conclusion that Ferebee abandoned his

bag is legal, not factual. See United States v. Stevenson, 396 F.3d 538, 545 (4th Cir. 2005)

24 (separating district court’s findings of fact from ultimate legal conclusion that defendant

had abandoned his reasonable expectation of privacy in his property). Hence, although we

review for clear error the findings of fact underlying the district court’s conclusion, we

review de novo whether those findings amount to abandonment as a matter of law. Id.

This comports with our general approach to Fourth Amendment questions involving a

reasonable expectation of privacy: as we have stated, “a lower court’s determination that a

reasonable expectation of privacy does or does not exist ‘is a legal conclusion involving

substantive Fourth Amendment analysis . . . subject to full review by this court.’” United

States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980) (quoting United States v.

Vicknair, 610 F.2d 372, 379 (5th Cir. 1980) (alteration in source)). 1

Against that background, let us first consider the district court’s factual finding that

that Ferebee “picked up the bag and extended it towards the officers” as if to say, “this is

not my bag, take it.” J.A. 98. I believe this finding to be clearly erroneous. That is, having

reviewed the record, I am “left with a definite and firm conviction that a mistake has been

made . . . .” Consol. Coal Co. v. Local 1643, United Mine Workers of Am., 48 F.3d 125,

1 This is a point of division among our sister circuits. Compare United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (whether the facts as given amount to abandonment is a matter of law subject to de novo review); and United States v. Ojeda- Ramos, 455 F.3d 1178, 1187 (10th Cir. 2006) (court reviews de novo whether defendant had an objectively reasonable expectation of privacy in property said to have been abandoned); with United States v. Crumble, 878 F.3d 656, 659 (8th Cir. 2018) (district court’s determination of abandonment is a factual finding reviewed for clear error); United States v. Stephens, 206 F.3d 914, 916–17 (9th Cir. 2000) (same); United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990) (same); United States v. Manner, 887 F.2d 317, 327 n.9 (D.C. Cir. 1989) (same).

25 128 (4th Cir. 1995).

The district court grounded its finding on a single piece of evidence: Bensavage’s

testimony. According to the district court, Bensavage “testified that he saw [Ferebee] pick

up the bag from the floor, stand, hold it out towards the officers, and disclaim ownership

of the bag.” J.A. 95. Having thus paraphrased Bensavage’s testimony, the district court

stated that “[a]t the same time [Ferebee] disclaimed ownership [of the bag], he picked up

the bag and extended it towards the officers,” thereby “reinforc[ing]” his verbal disclaimer.

J.A. 98.

As I see it, neither Bensavage’s testimony nor the record as a whole supports the district

court’s version of events. Bensavage did not testify that Ferebee held his bag out toward

the officers. See J.A. 46–58. He merely testified that Ferebee “picked up a black bag with

his left hand.” 2 J.A. 48. Indeed, none of the officers who were present during Ferebee’s

arrest described a scene like the one painted by the district court. No one but Bensavage

reported hearing Ferebee’s statement that the bag was not his, and no one—not even

Bensavage—reported that Ferebee extended the bag toward the officers. Perhaps for that

reason, in the proceedings below, the government did not argue that Ferebee had held his

2 In an earlier report on the incident, Bensavage wrote that Ferebee, having been ordered off the couch, “picked up a black backpack with his left hand as he stood up and held it out to his side as Officer B. Sinnott search[ed] his person due to his possession of marijuana.” J.A. 17. The most natural reading of this report is that while Sinnott patted him down, Ferebee held his arms away from his sides. In my view, to arrive at this understanding of events requires no inference at all: Bensavage’s report is simply a description of how any normal person, holding his or her bag, would respond to a police officer’s pat-down.

26 bag out to the officers as if inviting them to take it. Even viewed in the light most favorable

to the government, the record indicates only that Ferebee held his bag in his left hand, out

to his side, while an officer patted him down. It was clear error for the district court to find

that Ferebee disclaimed ownership of his bag while holding the bag out to the officers as

if to say, “this is not my bag, take it.” J.A. 98.

This does not end the inquiry into abandonment. According to the government, even

if the district court clearly erred in finding that Ferebee held his bag out to the officers as

if inviting them to take it, the error was harmless, because the district court could have

relied solely on Ferebee’s disclaimer of ownership to conclude that Ferebee abandoned his

bag before the search. My colleagues in the majority agree. Given the circumstances, I

cannot.

In considering this question, I would adopt two sensible principles that our sister

circuits have applied in the same context but that our own precedent has not explicitly

addressed. First, the government bears the burden of proving abandonment by a

preponderance of the evidence. United States v. Denny, 441 F.3d 1220, 1226 (10th Cir.

2006); United States v. Pitts, 322 F.3d 449, 456 (7th Cir. 2003); cf. United States v. Cofield,

272 F.3d 1303, 1306 (11th Cir. 2001) (stating that government bears burden of proving

abandonment without specifying whether government must show abandonment by a

preponderance of the evidence). Second, in deciding whether the government has met its

burden, we eschew per se rules and conduct a totality-of-the-circumstances analysis.

United States v. Lopez-Cruz, 730 F.3d 803, 808 (9th Cir. 2013); United States v. Harrison,

689 F.3d 301, 307 (3d Cir. 2012); United States v. Hawkins, 681 F.2d 1343, 1346 (11th

27 Cir. 1982) (“[A] disclaimer of ownership, while indeed strong indication that a defendant

does not expect the article to be free from government intrusion, is not necessarily the

hallmark for deciding the substance of a fourth amendment claim.”)

Viewing the present case though that lens, it seems to me that in light of the totality of

the circumstances, the evidence of abandonment does not preponderate. Ferebee’s

disavowal of ownership is evidence that he abandoned his bag, but his nonverbal conduct

is evidence that he never intended to give up his possessory interest in the bag and expected

the bag’s contents to remain private. In other words, Ferebee’s disclaimer of ownership—

an isolated statement made to Bensavage and unreported by any other officer in the room,

despite the officers’ close proximity—weighs in the government’s favor, but it is

counterbalanced by Ferebee’s conspicuous and continuous physical possession of the bag.

I do not mean to suggest that someone who is holding a bag can never abandon it—

only that someone who is treating his bag in a way perfectly consistent with an ongoing

possessory interest does not give up his reasonable expectation of privacy in the bag based

on one statement, neither unsolicited nor emphatic, made to a single law enforcement

officer in what was, in all likelihood, a confusing and stressful moment. It is true that our

cases—especially Leshuk, 65 F.3d at 1105, and United States v. Han, 74 F.3d 537 (4th Cir.

1996)—provide support for the majority and make this a close call. Yet neither Leshuk nor

Han required us to address the circumstances that face us now: a defendant who disclaimed

ownership of his property but also picked up his property when approached by law

enforcement and then held onto his property while officers searched his person and the area

around him. The distinctions I would draw are fine, but we must sometimes be willing to

28 draw fine distinctions in order to prevent the protections of the Fourth Amendment from

eroding case by case, millimeter by millimeter, over time.

In the end, I simply cannot bring myself to believe that a reasonable, objective person

watching Ferebee’s arrest would have concluded, based on the totality of Ferebee’s words

and actions, that Ferebee was indifferent to, or had no interest in, what happened to his bag,

such that he could no longer have reasonably expected the contents of the bag to remain

private. Thus, though I understand what led my friends in the majority to their conclusion,

I would hold that as a matter of law, Ferebee did not abandon his bag and has standing to

challenge the bag’s search under the Fourth Amendment.

2.

Despite holding that Ferebee abandoned his bag, the majority, in extensive dicta, goes

on to conclude that even if Ferebee had not abandoned his bag, the search would not have

required a warrant because it was incident to Ferebee’s arrest. I believe my colleagues are

mistaken.

The search-incident-to-arrest exception to the warrant requirement derives largely

from Chimel v. California. 395 U.S. 752 (1969). In that case, the Supreme Court held that

when an officer makes an arrest, it is reasonable—and therefore not prohibited by the

Fourth Amendment—for the officer to search “the arrestee’s person and the area within his

immediate control.” Id. at 763 (internal quotation marks omitted). The Court defined “the

area within the arrestee’s immediate control” as the area “from which [the arrestee] might

29 gain possession of a weapon or destructible evidence.” Id.

The search-incident-to-arrest doctrine has developed significantly in the vehicle

context. In New York v. Belton, 453 U.S. 454, 460 (1981), the Supreme Court, applying

Chimel, held that when a law-enforcement officer “has made a lawful custodial arrest of

the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search

the passenger compartment of that automobile,” as well as any containers therein. Id. This

expansive application of Chimel “was based in large part on [the Supreme Court’s]

assumption ‘that articles inside the relatively narrow compass of the passenger

compartment of an automobile are in fact generally, even if not inevitably, within ‘the area

into which an arrestee might reach.’” Arizona v. Gant, 556 U.S. 332, 341 (2009) (quoting

Belton, 453 U.S. at 460).

We, like our sister circuits, went on to apply Belton outside the vehicle context when

determining whether a search of a defendant’s bag qualified as a search incident to arrest.

For instance, we stated in Han that “Belton established that incidence to arrest continues to

justify a search even after the likelihood of danger or destruction of evidence has been

eliminated . . . .” 74 F.3d at 543. Therefore, we held that “officers may separate the suspect

from the container to be searched, thereby alleviating their safety concerns, before they

conduct” a valid search incident to arrest. Id. at 542; see also United States v. Litman, 739

F.2d 137, 139 (4th Cir. 1984) (applying Belton outside vehicle context).

But in Gant, the Supreme Court revisited Belton and recalibrated its gloss on Chimel,

holding that “the Chimel rationale authorizes police to search a vehicle incident to a recent

occupant’s arrest only when the arrestee is unsecured and within reaching distance of the

30 passenger compartment at the time of the search.” 556 U.S. at 343 (emphasis supplied).

The Supreme Court specifically reiterated that the search incident to arrest exception is

intended to protect officer safety and prevent the destruction of evidence. Id. at 339. Thus,

“[i]f there is no possibility that an arrestee could reach into the area that law enforcement

officers seek to search, both justifications for the search-incident-to-arrest exception are

absent and the rule does not apply.” Id.

Gant’s narrower interpretation of the search-incident-to-arrest exception has thus

supplanted the expansive interpretations that flowed from Belton. And like Belton, Gant

has repeatedly been applied outside the vehicle context. 3 Indeed, several of our sister

circuits have turned to Gant to decide whether the warrantless search of an arrestee’s bag

qualifies as a search incident to arrest if the search occurs after the arrestee has been

handcuffed. The Tenth Circuit, applying Gant, has recently held that the search of an

arrestee’s purse was not a search incident to arrest when the arrestee was in handcuffs and

several police officers were nearby—even though the purse was only a few feet away from

the arrestee. United States v. Knapp, 917 F.3d 1161, 1169 (10th Cir. 2019). The Ninth

and Third Circuits have held that the warrantless search of an arrestee’s bag, made

immediately after the arrestee is handcuffed, falls within the search-incident-to-arrest

exception when the arrestee remains within reaching distance of the bag and officers have

an objectively reasonable belief that the arrestee is armed and dangerous. United States v.

3 The government seeks to convince us that Ferebee waived any argument from Gant during the proceedings below. That contention is meritless. Ferebee did not waive his argument from Gant, despite the government’s selective quotation of his counsel.

31 Cook, 808 F.3d 1195, 1199–200 (9th Cir. 2015) (arrestee’s bag was “right next to him,”

officers knew that arrestee had “used the same backpack earlier in the day to transport

drugs,” and officers “had already recovered two firearms from [a] house associated with

[the arrestee’s] co-conspirator”); United States v. Shakir, 616 F.3d 315, 319, 321 (3d Cir.

2010) (arrestee’s bag was “literally at his feet,” arrest occurred “in a public place with some

20 people around,” officers “had reason to believe that one or possibly more of [the

arrestee’s] accomplices was nearby,” and one of the arrestee’s suspected accomplices “was

restrained only by two unarmed private security officers.”). The Eighth Circuit has held

that when a handcuffed arrestee remains “in close proximity” to his bag and has “already

run from the officers once,” a warrantless search of the bag falls within the search-incident-

to-arrest exception. United States v. Perdoma, 621 F.3d 745, 750–51 (8th Cir. 2010). 4

I see nothing in Gant or the opinions of our sister circuits to convince me that the

search-incident-to-arrest exception applies here. At the time of the search, Ferebee was

handcuffed and indisputably not within reaching distance of his bag. The video of the

arrest contains no inkling of physical struggle or attempted flight; what it shows is Ferebee

calmly being led outside, after which he calmly stands in the yard next to an officer. Thus,

Ferebee was restrained, physically compliant, and separated from the area to be searched.

An officer stood next to him, and multiple officers remained inside with the bag. Both

4 Compare United States v. Casper, 34 F. Supp. 3d 617, 626 (E.D. Va. 2014) (holding that search of defendant’s coat was not a lawful search incident to arrest when defendant was separated from coat, placed in handcuffs, and led outside of room before search occurred; exception did not apply because defendant “had no reasonable possibility of reaching the coat” at the time of search).

32 Ferebee and the bag were manifestly under the officers’ control, and Ferebee was

thoroughly outnumbered by the law enforcement officers on the scene. Broadly, there was

no exigency; specifically, the search-incident-to-arrest conditions established by the

Supreme Court—that the arrestee be both unrestrained and within reaching distance of the

area to be searched—were not present. See Gant, 129 S. Ct. at 1719.

It is the government’s burden to prove otherwise. Coolidge v. New Hampshire, 403

U.S. 443, 455 (1971). Yet the best the government can do is speculate that Ferebee’s

handcuffs could have spontaneously failed; or that Ferebee, still handcuffed, could have

rushed back into the house, dodged past the couch and the various officers crowding the

room, and, in a remarkable feat of dexterity, reached into his backpack to destroy evidence

or retrieve his firearm. This Court should not permit the government to circumvent the

Fourth Amendment on such patently flimsy grounds. 5 In doing so, the majority pushes the

search-incident-to-arrest exception further than the Supreme Court or any of our sister

circuits, straying from the principle that exceptions to the warrant requirement are to be

“jealously and carefully drawn.” Coolidge, 403 U.S. at 455. I cannot join them: this was

not a valid search incident to arrest. 6

5 From my perspective, that Ferebee managed to crumple up and toss away a marijuana blunt that was already in his possession while he was in handcuffs does not make it more likely that, while handcuffed, he would have been able to re-enter the house and reach into his backpack. The former is something that any average person could do. The latter would be quite exceptional. 6 A final point bears mentioning. The district court, seeking a third justification for its denial of Ferebee’s motion to suppress, concluded that the evidence recovered from Ferebee’s bag fell within the saving ambit of the inevitable-discovery rule. I agree with (Continued) 33 3.

For the reasons stated, I respectfully dissent.

my colleagues that the district court erred. When the government seeks to avoid the suppression of evidence by invoking the inevitable-discovery rule, it is the government’s burden to prove that the inevitable-discovery rule applies. United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017). Here, the government did not even argue that the inevitable- discovery rule applied; the district court raised the argument sua sponte. That was a serious mistake. When a federal court takes it upon itself to make a legal argument that the prosecution has not made, based on evidence that the prosecution has not produced, the legitimacy of our criminal-justice system is degraded. The court has a duty to ensure that the government is held to its burden of proof in every criminal case. Here, the district court turned that duty on its head.