# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2004 Decided January 18, 2005

No. 04-3008

U NITED S TATES OF A MERICA

, A PPELLEE

v.

D ARRELL H

EWLETT

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00139-01)

Neil H. Jaffee

, Assistant Federal Public Defende r

, argued

the cause for appellant. With him on the briefs was A

. J.

Kramer , Federal Public Defender.

Susan A. Nellor

, Assistant U.S. Attorney, argued t he cause

for appellee. With her on the brief were K enneth L. Wai nstein

, U.S. Attorney, and John R. Fisher and Thom a s J. Tourish, Jr.

, Assistant U.S. Attorneys.

Before: G

INSBURG

, Chief Judge

, G ARLAND

, Circuit Judge,

and W ILLIAMS

, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge G ARLAND

.2

1 The record does not indicate how long it took Ashby and

Lockhart to drive from South Capitol Street to MPD headquarters. G ARLAND

, Circuit Judge : Defendant Darrell Hewlett

contends that

the district court should have granted his motion

to suppress a firearm and ammunition on the ground that the

evidence was seized from him in the course of an unlawful

arrest. Because we conclude that Hewlett’s arrest was lawful,

we reject his contention and affirm his conviction.

I

I n April 2002, FBI Special Agent Kevin Ashby receive d a

tip from a

reliable informant that Hewlett was a fugitive who

w as wanted for murder in Prince George’s County, Maryland.

Ashby ran Hewlett’s name through the National Crime

Infor mation Center database, which confirmed the existence of

an outstanding arrest warrant for Hewlett. He then notified the

FBI office with jurisdiction over Prince George’s County.

Approxim ately eleven months later, on March 13, 2003, the

same informant called Ashby to tell him that Hew lett was, at

that moment, eating lunch at a McDonald’s restaurant n e ar the

MCI Center in downtown Washington, D.C. Ashby and his

partner, Special Agent Robert Lockhart, drove from their

location on South Capitol Street, S.E., to the restaurant. Along

the way, they picked up two Metropolitan Police Department

(MPD) officers at MPD headquarters. The trip from MPD

headquarters to the McDonald ’ s took five to ten minutes. 1 The

agents did not attempt to confirm the continued validity of the

warrant while they were en route.

When they arrived at the restaurant , Ashby and Lockhart

approached Hewlett, handcuff ed him, and told him that he was

under arrest. Ashby then frisked Hewlett, discovering a loaded,3

9m m SIG-Sauer pistol in the front waistband of his pants and a

loaded ammunition magaz ine in his pocket. After Ashby

arrested He wlett, the police officers called their dispatcher, who

checked and confirmed that the Prince George’s County arrest

warrant was still outstanding.

Hewlett was charged with unlawful possession of a firearm

and amm unition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). He moved to suppress the gun and ammunition

seized by As hby on the ground that the information known to

the arresting officers was “insufficient to establish probable

c ause to arrest the defendant.” Mot. to Suppress Physical

Evidence 3. The district court denied the motion, finding that

Ashby’s knowledge of the Pri nce George’s County murder

warrant gave him probable cause to arrest Hewlett. After losing

h is motion, Hewlett entered a conditional guilty plea pursuant to

Federal Rule of Criminal Pr ocedure 11(a)(2), reserving his right

to take this appeal.

On appeal, Hewlett raises two challenges to the denial of his

motion to suppress. We consider them in Parts II and III below.

II

In Chimel v. California

, the Supreme Court held that, in the

course of making a lawful ar rest, a police officer may “search

the person arrested in order to remove any weapons that the

latter might seek to use in order to resist arrest or effect his

escape.” 395 U.S. 752, 763 (1969); s ee United States v.

Robinson

, 414 U.S. 218 (1973). Hewlett’s first contention is

that the search that yielded the gun and ammunition was

unlawful because the arrest itself was unlawful . The arrest was

unlawful, he argues, because the government never proved that

t he Prince George’s County arrest warrant was supported by

probable cause to believe that Hewlett had committed a crime.4

He cites United States v. Hensley , 469 U.S. 221 (1985), and

Whiteley v. Warden

, 401 U.S. 560 (1 9 71), for the proposition

that “when evidence is uncovered during a search inci dent to

arrest in reliance” on an ar rest warrant procured by other

officers, the constitutionality of the se arch “turns on whether the

officers” who obtained the warrant “possessed pr obable cause

to make the arrest.” Hensley , 469 U.S. at 231; see Whiteley , 401

U.S. at 568.

The government responds that Hewlett waive d the argument

that the warrant was unsupported by prob able cause when he

failed to present it to the district co urt. We agree. Rule

12(b)(3)(C) of the Federal Rules of Criminal Procedure requires

a party to make any motions to suppress evidence in adva nce of

trial, and Rule 12(e) provides that the failure to make “any Rule

1 2(b)(3) defense, objection, or request” by the pretrial deadl ine

constitutes a waiver. We have held that, “while a pretrial

motion n eed not state explicitly the grounds upon which a

motion is made, it must contain facts and arguments that make

clear the basis of defendant’s objections.” U nited St ates v.

Mitchell

, 951 F.2d 1 2 91, 1296 (D.C. Cir. 1991) (internal

quotation marks omitted).

In Mitchell

, the defendant argued on appeal that the car

search that yielded evidence against him was invalid becaus e it

was conducted without a warrant. The defendant had failed to

make that argument in his motion to suppress, contending

instead that the s earch was invalid because the police lacked

probable cause. M

itchell

, 951 F.2d at 1297. Since neither

Mitchell’s motion to supp ress nor the record of the suppression

he aring contained “any discussion of whether a warrant was

necessary,” we concluded that he had waived the argument

under Rule 12. Id.5

2 See Terry v. Ohio , 392 U.S. 1 (1968). Mitchell governs this case. Hewlett’s motion to suppress

did not suggest, much less “make clear,” id. at 1296, that he was

objecting to the a dmission of the evidence on the ground that the

Prince George’s County warra n t was unsupported by probable

cause. Rather, he argued exclusively that the arresting officers

themselves had neither probable cause for an arrest nor

reasonable suspicion for a Terry 2 stop, focusing in particular on

the officers’ failure to reco nfirm the status of the warrant before

making the arrest. See Mot. at 3, 9.

Hewlett disputes the conclusion that he waived his

challenge to the Prince George’s County warrant, noting that his

suppression motion contained citations to both United States v.

Hensley and Whiteley v. Warden

. But while the cases were

there, the proposition for which they were cited was different

from that urged

here. S ee Mot. at 5-6 (citing Hensley and

Whiteley for the propos ition that “[t]he police may rely on

hearsay information concernin g p ast conduct in making stops”

(emphasis in original)). Because Hewlett never suggested that

there was any flaw in the support for the warrant -- indeed, even

on appeal he does not say in what ma nner it was deficient -- the

district judge wo uld have to have been a mind reader to deduce

t hat Hewlett was citing H ensley and Whiteley to advance such

an argument. Although we expect many things of our district

judges, telepathic powers are not among them.

Moreover, Hewlett’s appellate brief effectively concedes

that Hewlett’s trial at

torney did not have in mind a challenge to

the validity of the warrant in the first place, because he did not

“recogniz[e]” that, under Whiteley

, the validity of the arrest

could turn o n whether there was probable cause to support the

warrant. Reply Br. at 1-2. Perhaps that was the reason trial

counsel did not a ttack the warrant -- or perhaps it was because6

3 I n A rizona v. Evans

, the Supreme Court stated that “ Whiteley

clearly retains relevance in determining whether police officers have

violated the Fourth Amendment.” 514 U.S. 1, 13 (1995). The Court

noted, however, that “a Fourth Amendment v iolation” is not

necessarily “synonymous w ith application of the exclusionary rule to

evidence secured incident to that violation.” I d. (ci ting, e.g., U

nited

States v. Leon , 468 U.S. 897 (1984)). he had no basis for doing so. In either event, the challenge was

not made in the district court and is therefore waived.

III

Hewlet t’s second contention is that his arrest was invalid

because the arresting officers lacked proba b le cause to believe

he had committed a crime. Hewlett did make this argument in

his supp ression motion, s ee Mot. at 3, and he therefore properly

preserved it for appeal. But because he waived his challenge to

the validity of the Prince George’s County warrant, Hewlett is

limited to arguing that his arrest was unlawful notwithstanding

the validity of the warrant. Hewlett cites no case (and we have

found none) in which a court has con cluded that an arrest lacked

probable cause despite the existence of a valid warrant.

An arrest warrant may be issued only if “the judicial office r

issuing such a warrant [is] supplied with suf ficient information

to support an independent judgment t hat probable cause exists

for the warrant.” Whiteley , 401 U.S. at 564. Police officers who

arrest a suspect based on a warrant that they did not themselves

seek “are entitled to assume th at the officers” who did obtain the

w arrant “offered the magistrate the information requisite to

support an independent judicial assessment of probable cause.”

Id. at 568; see Hensley , 469 U.S. at 231-32. It is only “[w]here

. . . the contrary turns out to be true” that a Fourth Amendment

violation occurs. Whiteley , 401 U.S. at 568. 37

4 Although the Maryland Code requires that a search warrant be

ex ecuted within a specified number of days after its issuance, M D

. C ODE A

NN

., C RIMINAL P ROCEDURE § 1-203(a)(4) (2004) (no more

than 15 days), the Code does not require execution of an arrest warrant

within any specific time period, see M D

. C O DE A NN

., C OURTS AND

J UDICIAL P ROCEEDINGS § 2-107 (2004); M D

. C ODE A

NN

., C RIMINAL

P ROCEDURE § 2-103 (2004). The same is true of the Federal Rules.

Compare F ED

. R. C RIM

. P. 41(e)(2)(A) (requiring execution of search

warrants within 10 days), with F ED

. R. C RIM

. P. 4(c) (specifying no

time period for execution of arrest warrants).

5 Because the government does not dispute that the passage of

some length of time without reconfirmation of the warrant’s existence

could have invalidated the arrest, we assume without deciding that to

be so. Despite the (assumed) v

alidity of the warrant in this case,

Hewlett contends on appeal -- as he did in the district court --

that Agent Ashby and the other arresting officers lacked

probable cause becau se eleven months had passed since Ashby

confirmed the existence

of the warrant. S ee Mot. at 3

(contend ing that “the failure to [re]confirm the existence of the

warrant

. . . deprived the police of probable cause”). During that

time, Hewlett argues, the warrant could hav e been quashed,

with drawn, or executed. 4 Those possibilities, he insists,

diminished the origina l support for the belief that he had

committed a crime (or at least a crime for which he had not yet

been arrested, punished, or cleared).

Perhaps they did . But under the circumstances of this case,

we cannot conclude that the passag e of eleven months so

diminished that

support as to reduce it below the level of

probable cause. 5 The nature of the charge (murder) and the

r elative brevity of the elapsed time period eliminate some

p ossibilities that might otherwise have been relevant. For

exampl e, it was quite unlikely that Hewlett already had been8

convicted and served his time, or had been tried and acqui tted,

in just eleven months. It was also relatively unlikely that he had

b een arrested and released on bond, given the nature of the

charge again st him. Nor could the warrant have been quashed

on statute of limitations grounds, as Maryland has no statute of

limitations for murder. S ee Gre co v. State , 499 A.2d 209, 213

( Md. Ct. App. 1985). And while it remained possible that the

warrant had been quashed or withdr awn on other grounds, the

implication of th

e informant’s tip was to the contrary. It was

thus reasonable for the arresting officers to believe that the

warrant, a nd the finding of probable cause that it evidenced,

remained valid in March 2003. Accordingly, Hewlett’s arrest

and the search incident thereto were lawful.

IV

We conclude that Hewlet

t’s arrest was lawful, and therefore

affirm the district court’s denial of his motion to suppress the

evidence sei

zed from him incident to that arrest. The judgment

of conviction is

Affirmed.