United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2004 Decided January 18, 2005

No. 04-3008

UNITED STATES OF AMERICA,

APPELLEE

v.

DARRELL HEWLETT,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00139-01)

Neil H. Jaffee, Assistant Federal Public Defender, 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 the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, and John R. Fisher and Thomas J. Tourish, Jr.,

Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.
2

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

Lockhart to drive from South Capitol Street to MPD headquarters.

GARLAND, 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

In April 2002, FBI Special Agent Kevin Ashby received a

tip from a reliable informant that Hewlett was a fugitive who

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

Ashby ran Hewlett’s name through the National Crime

Information 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. 

Approximately eleven months later, on March 13, 2003, the

same informant called Ashby to tell him that Hewlett was, at

that moment, eating lunch at a McDonald’s restaurant near 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, handcuffed him, and told him that he was

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

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

loaded ammunition magazine in his pocket. After Ashby

arrested Hewlett, 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 ammunition by a convicted felon, in violation of 18 U.S.C.

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

seized by Ashby on the ground that the information known to

the arresting officers was “insufficient to establish probable

cause to arrest the defendant.” Mot. to Suppress Physical

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

Ashby’s knowledge of the Prince George’s County murder

warrant gave him probable cause to arrest Hewlett. After losing

his motion, Hewlett entered a conditional guilty plea pursuant to

Federal Rule of Criminal Procedure 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 arrest, 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); see 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

the 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 (1971), for the proposition

that “when evidence is uncovered during a search incident to

arrest in reliance” on an arrest warrant procured by other

officers, the constitutionality of the search “turns on whether the

officers” who obtained the warrant “possessed probable cause

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

U.S. at 568. 

The government responds that Hewlett waived the argument

that the warrant was unsupported by probable cause when he

failed to present it to the district court. 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 advance of

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

12(b)(3) defense, objection, or request” by the pretrial deadline

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

motion need 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.” United States v.

Mitchell, 951 F.2d 1291, 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 because it

was conducted without a warrant. The defendant had failed to

make that argument in his motion to suppress, contending

instead that the search was invalid because the police lacked

probable cause. Mitchell, 951 F.2d at 1297. Since neither

Mitchell’s motion to suppress nor the record of the suppression

hearing contained “any discussion of whether a warrant was

necessary,” we concluded that he had waived the argument

under Rule 12. Id.
5

2See 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 admission of the evidence on the ground that the

Prince George’s County warrant 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 Terry2stop, focusing in particular on

the officers’ failure to reconfirm 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. See Mot. at 5-6 (citing Hensley and

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

hearsay information concerning past 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 manner it was deficient -- the

district judge would have to have been a mind reader to deduce

that Hewlett was citing Hensley 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 attorney 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 on whether there was probable cause to support the

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

counsel did not attack the warrant -- or perhaps it was because
6

3

In Arizona 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 violation” is not

necessarily “synonymous with application of the exclusionary rule to

evidence secured incident to that violation.” Id. (citing, e.g., United

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

Hewlett’s second contention is that his arrest was invalid

because the arresting officers lacked probable cause to believe

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

his suppression motion, see 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 concluded that an arrest lacked

probable cause despite the existence of a valid warrant.

An arrest warrant may be issued only if “the judicial officer

issuing such a warrant [is] supplied with sufficient information

to support an independent judgment that 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 that the officers” who did obtain the

warrant “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 568.3
7

4Although the Maryland Code requires that a search warrant be

executed within a specified number of days after its issuance, MD.

CODE ANN., CRIMINAL PROCEDURE § 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 MD. CODE ANN., COURTS AND

JUDICIAL PROCEEDINGS § 2-107 (2004); MD. CODE ANN., CRIMINAL

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

Compare FED. R. CRIM. P. 41(e)(2)(A) (requiring execution of search

warrants within 10 days), with FED. R. CRIM. P. 4(c) (specifying no

time period for execution of arrest warrants).

5Because 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) validity 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 because eleven months had passed since Ashby

confirmed the existence of the warrant. See Mot. at 3

(contending 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 have been quashed,

withdrawn, or executed.4 Those possibilities, he insists,

diminished the original 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 passage 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

relative brevity of the elapsed time period eliminate some

possibilities that might otherwise have been relevant. For

example, it was quite unlikely that Hewlett already had been
8

convicted and served his time, or had been tried and acquitted,

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

been arrested and released on bond, given the nature of the

charge against him. Nor could the warrant have been quashed

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

limitations for murder. See Greco v. State, 499 A.2d 209, 213

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

warrant had been quashed or withdrawn on other grounds, the

implication of the informant’s tip was to the contrary. It was

thus reasonable for the arresting officers to believe that the

warrant, and 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 Hewlett’s arrest was lawful, and therefore

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

evidence seized from him incident to that arrest. The judgment

of conviction is

Affirmed.