Search of Bag No Longer In Defendant's Possession Violated Fourth Amendment

US v. Buster: Officers responded to a report of “a domestica assault where a firearm was discharged in the air” when they spotted Buster, who they believed matched the description of the suspect. Buster did not stop when the officers asked to “talk” and eventually “took off running but tripped and fell almost immediately.” Buster had a bag strapped around his waist which was underneath him, in a location where the officers thought he might be trying to conceal it but also where the strap was choking him. Officers cut the strap and took possession of the bag, which felt “hard to the touch” and was therefore suspected of containing a weapon. An officer opened the bag and found a gun and ammunition. Officers also asked Buster numerous questions without Miranda warnings. Buster filed a motion to suppress, which the district court granted with respects to his eventual post-Miranda statements (the Government agreed not to use the pre-Miranda statements), but denied with respect to the gun and the ammunition. Buster entered into a plea agreement which “preserve[d]” his “right to appeal the denial of his motion to suppress,” pleaded guilty to being a felon in possession of a firearm, and was sentenced to 51 months in prison. 

On appeal, a divided Fourth Circuit reversed the district court’s denial of the motion to suppress with regard to the firearm and ammunition. First, the court rejected the Government’s argument that the conditional plea agreement did not adequately preserve the issue. The Government relied on a prior Fourth Circuit decision, Bundy, which held that if a conditional plea attempted to preserve an issue that was not “case dispositive” that it tainted the entire plea, such that it deprived the court of appeals of the ability to review other, case dispositive, issues. The Government argued that the pre-Miranda statements Buster made would not have been case dispositive. The court disagreed, concluding that while the defendant in Bundy sought to appeal several issues, here Buster sought only to appeal “the denial of a single motion requesting a single form of relief (suppression).” Second, on the merits, the court concluded that the district court erred by denying the motion to suppress the firearm as “the sole theory the government has pressed in support of that result does not apply here.” That theory, of a protective search under Terry, did not apply because by the time the officer opened the bag “Buster was handcuffed on the ground and had no access to it.” It could not, therefore, present any “credible threat to the officers’ safety” at the time.  As for the officer’s feeling of the bag and suspicion it might contain a weapon, “that fact alone could not generate reasonable suspicion that Buster  was ‘presently dangerous’ after he was already restrained and no longer had access to the bag.” 

Judge Richardson dissented, arguing that “Bundy’s rule is textually baseless, pragmatically unjustified, and entirely binding on this panel” and “would fully support abandoning Bundy through the proper channel – an en banc hearing.” While not specifically reaching the merits, in a footnote he noted a prior Fourth Circuit decision with similar facts and a different result, and highlighted the “majority’s comment that the government might have succeeded if it sought to justify the search on another theory; the government should now be on notice that it needs to put forth all the alternative theories that justify a search.”

Congrats to the Defender office in the Eastern District of VA on the win!