Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 88 CR 12 -- William C. Lee, Judge.
Flaum, Ripple and Kanne, Circuit Judges.
Defendant-appellee William Trigg was charged with one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 811(1) after a search incident to a traffic arrest revealed the presence of 53 grams of cocaine in his coat pocket. Prior to trial, Trigg moved to exclude the cocaine as well as any incriminating statements he had made after being taken into custody on the grounds that the traffic arrest was a mere pretext to search for evidence of narcotics. The district court, after conducting an evidentiary hearing on the issue, granted defendant's suppression motion and the government appeals. For the reasons stated below we reverse and remand.
On February 1, 1988, Officers Philip Bird and Dan Edenfield, then assigned to the warrants and fugitive division of the Allen County Police Department, arrested defendant Trigg on an outstanding body attachment.*fn1 After transporting Trigg to the lockup, Officer Bird ran a computer check which revealed that defendant was driving on a suspended license. Trigg, however, was not informed of this fact and the license was returned to the defendant without comment when he was released from custody.
On the morning of March 16, 1988, Officer Bird, now assigned to the narcotics division, decided to investigate some of the known crack houses in town for possible drug trafficking. During the course of this investigation, Bird drove by Trigg's house where he noticed a maroon Cadillac parked in the driveway. The automobile aroused Bird's interest for he remembered seeing it parked in front of a known crack house the week before.
The dubious history of the maroon Cadillac prompted Bird to request permission to set up surveillance on the automobile. Permission was granted, and two other police cars were dispatched to the scene. Shortly, thereafter, Trigg emerged from his house, entered the maroon Cadillac and drove away. Continuing the surveillance, the three police cars followed closely behind. It is undisputed, however that the officers lacked probable cause to believe that Trigg was engaged in narcotics activity at this time.
During the course of the surveillance, Bird, remembering the events of February 1, had headquarters run another check on defendant's license which revealed that Trigg's license was still suspended. This information was relayed to Officer Royse of the Allen County Police Department who was asked to assist in the stopping of a suspended driver.*fn2 Royse complied with this request and eventually arrested Trigg for driving on a suspended license.*fn3 After Trigg was handcuffed, Officer Huffine, a narcotics officer who had arrived on the scene, conducted a full pat-down search of Trigg's person. The search revealed the presence of 53 grams of cocaine in Trigg's coat pocket. This discovery caused Trigg to utter several incriminating statements to the police officers at the scene.
The discovery of the cocaine resulted in Trigg's indictment on one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 811(1). Prior to trial, defendant moved to exclude all evidence obtained after the arrest on the grounds that the police had employed the traffic arrest as a pretext to search for evidence of narcotics. The district court, relying primarily on the fact that several narcotics officers had participated in a routine traffic arrest, concluded that the traffic arrest was a pretext to search for narcotics and granted defendant's motion.*fn4 The government appeals from this decision.
The subject of pretextual arrests presents some of the most intriguing historical, conceptual and practical issues in the often problematic area of fourth amendment jurisprudence. By definition, a pretextual arrest occurs when the police employ an arrest based on probable cause as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking. Cf. U.S. v. Guzman, 864 F.2d 1512, 1515 (10th Cir. 1988); U.S. v. Keller, 499 F. Supp. 415, 417 (N.D.Ill. 1980). As such, the arrest serves as a means to circumvent the warrant requirement of the fourth amendment. The traditional response to this police tactic has been to suppress all evidence derived from the search incident to the pretextual arrest. See Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961).
The above discussion hints at but fails to identify the source of the pretext problem. Specifically, the possibility of pretextual police activity stems from a combination of the Supreme Court's recognition of various exceptions to the fourth amendment's warrant requirement and expansive interpretation of the type of admissible evidence that may be procured through these exceptions. In the present case, the possibility that the police used the traffic arrest as a pretext to search for evidence of narcotics arises due to the confluence of three factors. The first factor is the recognition of a search incident to arrest exception to the warrant requirement. See e.g. Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969). Under this exception, a police officer may thoroughly search the person of a suspect after making a custodial arrest. The second factor is the extension of this exception to all custodial arrests including those involving traffic offenses. See United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973). The final factor is the presence of the so-called "serendipity" doctrine which deems all evidence discovered during a lawful search to be admissible in later proceedings. See Harris v. United States, 331 U.S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947). See also LaFave, Case by Case Adjudication or Standarized Procedures The Robinson Dilemma, 15 S. Ct. Rev. 127, 156 (1974). The search incident exception itself is a narrowly tailored doctrine designed to protect police officers from danger and prevent the destruction of evidence. Chimel, 395 U.S. at 768. The potential benefits to be derived from a search of the person, however, provide the police with the incentive to employ the exception as a potent investigatory tool.
The Supreme Court's response to the problem of pretextual arrests has been ambiguous. In United States v. Lefkowitz, 285 U.S. 452, 467, 76 L. Ed. 877, 52 S. Ct. 420, the Court, in dicta, asserted that, "[an] arrest may not be used as a pretext to search for evidence." The Court, however, failed to delineate the elements of a pretextual arrest and did not indicate what the appropriate response should be. Later Supreme Court cases suffer from the same ambiguity. Although several cases have expressed concern about the potential abuse of the arrest power, see e.g. Abel v. United States, 362 U.S. 217, 236, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960); United States v. Robinson, 414 U.S. 218, 238 n. 2, 38 L. Ed. ...