United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2007 Decided February 20, 2007

No. 05-3156

UNITED STATES OF AMERICA,

APPELLEE

v.

STERLING MAPP,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00449-01)

Ketanji B. Jackson, Assistant Federal Public Defender,

argued the cause for the appellant. A. J. Kramer, Federal Public

Defender, was on brief for the appellant. Neil H. Jaffee and Tony

Axam, Jr., Assistant Federal Public Defenders, entered

appearances.

Ann K. H. Simon, Assistant United States Attorney, argued

the cause for the appellee. Jeffrey A. Taylor, United States

Attorney, and Roy W. McLeese III and William B. Wiegand,

Assistant United States Attorneys, were on brief for the appellee.

Before: GINSBURG, Chief Judge, and HENDERSON and

GARLAND, Circuit Judges.
2

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Sterling Mapp

(Mapp) was indicted on one charge of possessing with intent to

distribute more than one hundred grams of phencyclidine (PCP)

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Mapp

moved to suppress evidence, arguing that the arresting officers’

search of his vehicle—and discovery of PCP—was not

conducted “incident to a lawful arrest” and therefore excepted

from the Fourth Amendment’s warrant requirement under

Thornton v. United States, 541 U.S. 615 (2004). The district

court denied the motion and Mapp entered a conditional guilty

plea, reserving the right to appeal the district court’s order.

Mapp now appeals. As detailed below, we affirm the district

court’s order denying Mapp’s motion to suppress.

I.

On September 6, 2004, United States Park Police Officer

James Dowd (Dowd) was in his patrol car in the left-turn lane

northbound on Martin Luther King Avenue in southeast

Washington, D.C. Although the traffic signal showed “a green

arrow allowing the left traffic lane to turn left,” the Cadillac in

front of Dowd—the first car in the turning lane—did not turn

left. 5/2/05 Tr. 11. Instead, the Cadillac allowed “the left-turn

green arrow [to] expire[]” and “southbound traffic began to

move southbound through the intersection.” Id. At that point,

the Cadillac quickly turned left without yielding to southbound

traffic, see id., and caused southbound “cars to slam on their

brakes.” Factual Proffer in Support of Guilty Plea (Factual

Proffer), reprinted in Mapp Appendix (App.) at 46. After

witnessing this maneuver, Dowd followed the Cadillac onto

Malcolm X Avenue and radioed the Park Police station for a

registration check.
3

Before receiving a response to his inquiry, Dowd observed

the Cadillac quickly pull to a stop on the right side of the street.

Dowd responded by pulling his car alongside the Cadillac as its

driver—Mapp—began to exit the vehicle and Dowd “informed

the driver that he committed a traffic violation” at the last

intersection. 5/2/05 Tr. 13. At the same time, a woman—later

identified as Keisha Napper (Napper)—exited the passenger side

of the Cadillac. Dowd reversed his police cruiser in order to

park directly behind the Cadillac, “basically . . . like a normal

traffic stop.” Id. at 14. As Dowd parked, Mapp began walking

toward him. Getting out of the cruiser, Dowd asked Mapp for

his license and registration and Mapp, continuing to approach

Dowd, began feeling around his clothing as if searching for his

license. At this point, Dowd noticed Napper walking away from

the Cadillac with “a bunch of kids.” Id. at 16.

As Mapp approached him, Dowd instructed Mapp to stop

reaching around and, when Mapp nonetheless continued to do so,

Dowd became “a little nervous” and ordered Mapp to place his

hands on the cruiser’s hood. Id. at 14. Finally, Mapp responded

that he did not have a driver’s license and Dowd placed him

under arrest for failure to display a permit, a violation of D.C.

Mun. Regs. tit. 18 §§ 100.2 and 421.1. After arresting Mapp,

Dowd placed him in the back seat of the cruiser and asked Mapp

for his car keys, intending to “do a search incident to arrest.” Id.

at 18. Mapp responded that Napper had taken the keys. Id. at

17. About this time, Napper returned, explaining that “she had

put the keys with her kids.” Id. Two other Park Police officers

who had responded to the scene went with Napper to retrieve the

keys. The officers returned with Napper within “approximately

five minutes,” id. at 34, but without the keys because Napper told

them that “she forgot where she put her kids,” id. at 17.

Ultimately, the police discovered that the rear passenger’s side

door was unlocked and began searching the vehicle.
4

1

The Drug Enforcement Administration (DEA) subsequently

tested the contents of the bottles and confirmed that they consisted of

107.8 grams of PCP. See Factual Proffer at App. 46.

2

At the station, Mapp was also given two traffic citations, one for

failure to yield and another for failure to display a “permit.”

See 5/2/05 Tr. 16.

Dowd opened the front passenger door and “immediately

[noticed] a black plastic bag . . . [on] the center console” between

the driver’s and passenger’s seats. Id. at 19. Inside the bag

Dowd observed eight bottles containing a brownish-yellow

liquid that he suspected—from past experience—to contain PCP.

See 9/9/04 Tr. 9. Knowing PCP “to be somewhat dangerous,”

Dowd asked Napper what was in the bottles and Napper

responded, “I think it’s drugs.” Id. at 10–11. Thus, “[b]etween

the color [of the liquid], the way they were packaged, and her

statements, [Dowd] was fairly certain that [he] was dealing with

PCP.” Id. at 11.1 At that point, he arrested Mapp and Napper for

possessing PCP with intent to distribute and transported them to

a Park Police station.2

On October 7, 2004, a grand jury charged Mapp on one count

of possessing with intent to distribute one hundred grams or

more of PCP in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

Mapp subsequently moved to suppress the PCP recovered from

his car “as the fruit of an illegal seizure and search.” Mot. to

Suppress Physical Evid. and Statements (Mot. to Suppress),

reprinted in App. at 22. Mapp argued that the circumstances of

his arrest neither posed a threat of evidence destruction nor

endangered the safety of the arresting officers because “Mapp

was handcuffed and under police control before the search took

place.” App. at 26 (emphasis in original). Relying on language

contained in a concurring opinion in Thornton, 541 U.S. at 625,
5

3

The district court rejected Mapp’s proposed rule by noting that

“when a person cannot produce a driver’s license and registration for

the vehicle, . . . it is appropriate for [arresting officers] to search [the

car] to find out whose vehicle it is,” 5/2/05 Tr. 69, and thus Dowd had

reason to believe the car contained evidence—such as the vehicle

registration—relevant to the crime of arrest, Mapp’s failure to present

a license or registration, see id. at 68–70. The district court also

emphasized the “very suspicious” circumstances of Mapp’s actions,

id. at 90, suggesting that Dowd had reason to suspect either

destructible evidence or weapons were in the vehicle given Napper’s

removal of the keys, see id. at 96–97. The district court also suggested

that when Mapp exited his car and began walking toward Dowd,

Dowd “would have a reason to believe [Mapp] was seeking to try to

separate himself from the vehicle for some reason.” Id. at 91.

Mapp asserted that a vehicle search is not incident to the arrest

of a recent occupant of the vehicle unless the police have reason

to “believe that evidence of the crime for which they are

arresting the person will be in the car.” 5/2/05 Tr. 68. But the

district court declined “to look through the lens of the concurring

opinion” because “the majority was clear” that the police can

“search a vehicle when somebody has been arrested, even if that

person is out of the vehicle at the time of the first contact.” Id.

at 90.3 Accordingly, the district court found the search of

Mapp’s car incident to his lawful arrest and denied the motion to

suppress. Mapp entered a conditional guilty plea and the district

court sentenced him to sixty-one months’ imprisonment. Mapp

filed his notice of appeal on September 16, 2005.

II.

The Fourth Amendment to the United States Constitution

prohibits police from “conduct[ing] a search unless they first

convince a neutral magistrate that there is probable cause to do

so” and obtain a warrant. New York v. Belton, 453 U.S. 454, 457
6

4

The Government contends that Mapp waived his probable cause

argument “because it was not presented to the district court.”

Appellee’s Br. at 31. Although Mapp focused below on the proper

(1981); see also U.S. Const. amend. IV. A warrantless search is

permitted, however, if it occurs “incident to a lawful arrest.”

See, e.g., United States v. Robinson, 414 U.S. 218, 224 (1973).

“To qualify for the exception, (i) the arrest must be lawful, and

(ii) the subsequent search must not exceed the scope permitted

by the exception.” United States v. Wesley, 293 F.3d 541, 545

(D.C. Cir. 2002). Mapp challenges the search of his car under

both criteria. In reviewing the district court’s suppression order,

“we review de novo the district court’s conclusions of law.” Id.

In contrast, we “review findings of historical fact only for clear

error and . . . give due weight to inferences drawn from those

facts.” Ornelas v. United States, 517 U.S. 690, 699 (1996).

A.

“To have been lawful, the arrest must have been based upon

probable cause to believe that a crime was being committed.”

Wesley, 293 F.3d at 545. A lawful arrest can be based on a

misdemeanor offense punishable only by a fine. See Atwater v.

City of Lago Vista, 532 U.S. 318, 323, 354 (2001). Moreover,

“[a]s a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that

a traffic violation has occurred.” Whren v. United States, 517

U.S. 806, 810 (1996). In determining whether probable cause

existed, a reviewing court does not consider “the actual

motivations of the individual officers involved.” Id. at 813.

Mapp first argues that “the alleged D.C. traffic infraction . . .

was not supported by probable cause” because “Officer Dowd

was able to make the left hand turn behind [him]” onto Malcolm

X Avenue. Appellant’s Br. at 47, 46.4

 The record, however,
7

scope of a search incident to arrest under Thornton, see Mot. to

Suppress at App. 24–26; 5/2/05 Tr. 67–95, his motion asserted that

“there was no probable cause to support [Mapp’s] arrest.” Mot. to

Suppress at App. 24. At the suppression hearing, Mapp elicited

testimony regarding Dowd’s ability to follow Mapp through the

intersection, see 5/2/05 Tr. 27, laying the foundation for his argument

that, because “Officer Dowd was able to make the left hand turn

behind [Mapp] in the ordinary course, . . . then [Mapp’s] actions in

turning the car had not created ‘an immediate hazard.’ ” Appellant’s

Br. at 46. This is sufficient for us to conclude Mapp did not waive his

probable cause argument. Cf. United States v. Redman, 331 F.3d 982,

986–87 (D.C. Cir. 2003) (defendant waived challenge by changing

legal theories at hearing and expressly abandoning initial argument).

5

Dowd learned of a second traffic violation supporting Mapp’s

arrest, namely failure to show a driver’s license, see 5/2/05 Tr. 16,

after he stopped Mapp.

indicates that Dowd had probable cause to arrest Mapp for

failure to yield. Dowd observed Mapp making an abrupt turn

after the green turn signal had expired, causing oncoming traffic

to “slam on their brakes,” Factual Proffer at App. 46, in order to

avoid an accident. 5/2/05 Tr. 10–12. That maneuver provided

Dowd with probable cause to believe that a traffic

violation—failure to yield—had occurred, see D.C. Mun. Regs.

tit. 18 § 2208.2,5 and thus to arrest Mapp, see Atwater, 532 U.S.

at 354. Mapp contends that his left turn did not create “an

immediate hazard” to oncoming traffic, and thus did not

constitute an offense, because Dowd managed to turn

immediately behind him. See Appellant’s Br. at 46. But Mapp’s

contention does not make implausible Dowd’s account of the

hazard created by Mapp’s left turn. Indeed, it is reasonable to

conclude that, after slamming on their brakes to avoid colliding

with Mapp, oncoming traffic also paused in the intersection long
8

6

Mapp also appears to question Dowd’s subjective motivation in

initiating a traffic stop, describing “the manifestly spurious nature of

the alleged traffic violation.” Appellant’s Br. at 44; see also id. at 47

(citing United States v. Bullock, 215 F. Supp. 2d 174, 177 (D.D.C.

2002) (traffic stop was mere pretext)). But the Supreme Court in

Whren rejected the suggestion that “the constitutional reasonableness

of traffic stops depends on the actual motivations of the individual

officers involved.” 517 U.S. at 813; cf. Scott v. United States, 436

U.S. 128, 137 (1978) (“[A]lmost without exception in evaluating

alleged violations of the Fourth Amendment the Court has first

undertaken an objective assessment of an officer’s actions in light of

the facts and circumstances then known to him.” (emphasis added)).

enough to permit the police cruiser to pursue Mapp. See United

States v. Broadie, 452 F.3d 875, 880 (D.C. Cir. 2006); United

States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006) (“[A]

credibility determination will be found clearly erroneous only if

the district court has chosen to credit exceedingly improbable

testimony.” (internal quotations omitted)). Accordingly, we

conclude that Dowd had probable cause to stop Mapp’s car.6

B.

“It is well settled that a search incident to a lawful arrest is a

traditional exception to the warrant requirement of the Fourth

Amendment.” Robinson, 414 U.S. at 224. The Supreme Court

outlined “the permissible scope under the Fourth Amendment of

a search incident to a lawful arrest” in Chimel v. California, 395

U.S. 752, 753 (1969). In Chimel, the Court gave two

justifications for a search incident to a lawful arrest. See id. at

762–63. Specifically:

When an arrest is made, it is reasonable for the arresting

officer to search the person arrested in order to remove

any weapons that the latter might seek to use in order to
9

resist arrest or effect his escape. Otherwise, the officer’s

safety might well be endangered . . . . In addition, it is

entirely reasonable for the arresting officer to search for

and seize any evidence on the arrestee’s person in order

to prevent its concealment or destruction. And the area

into which an arrestee might reach in order to grab a

weapon or evidentiary items must, of course, be

governed by a like rule.

Id. Thus, a search incident to a lawful arrest includes both the

arrestee and his immediate surroundings and is justified by the

twin rationales of officer safety and preservation of evidence.

The Court clarified the scope of the exception in Robinson,

414 U.S. at 220–23, a case involving a search of a traffic

offender. At the outset, the Court refused to limit the “incident

to arrest” exception to the “probable fruits or further evidence of

the particular crime for which the arrest [was] made.” Id. at 234.

It held that “[t]he authority to search the person incident to a

lawful custodial arrest, while based upon the need to disarm and

to discover evidence, does not depend on what a court may later

decide was the probability in a particular arrest situation that

weapons or evidence would in fact be found.” Id. at 235.

Instead, the Court crafted a bright-line rule: once an individual

is lawfully arrested, both he and his immediate surroundings may

be searched consistent with the Fourth Amendment. See id. (“It

is the fact of the lawful arrest which establishes the authority to

search . . . .”).

Believing a “familiar standard is essential to guide police

officers, who have only limited time and expertise to reflect on

and balance the . . . interests involved in the specific

circumstances they confront,” Belton, 453 U.S. at 458 (internal

quotation omitted), the Court continued to follow the Robinson

path by establishing another bright-line rule in Belton. Because
10

“articles inside . . . the passenger compartment of an automobile

are in fact generally, even if not inevitably, within ‘the area into

which an arrestee might reach in order to grab a weapon or

eviden[ce],’ ” id. at 460 (quoting Chimel, 395 U.S. at 763), the

Court held “that when a policeman 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.” Id. (footnote omitted). In

addition, the Court iterated Robinson’s holding that a lawful

search incident to arrest does not depend upon a case-by-case

inquiry into the likelihood that weapons or evidence would in

fact be found during the search. Id. As long as the arrest of an

occupant of a car is lawful, a search of the passenger

compartment is reasonable. “Accordingly, even though the

reasons for conducting a search incident to arrest, namely ‘to

disarm and to discover evidence,’ may be stronger in some

situations than in others, the Government is not obliged to justify

each such search in the particular context in which it occurs.”

United States v. Abdul-Saboor, 85 F.3d 664, 667 (D.C. Cir.

1996).

In Thornton, the Supreme Court declared another bright-line

rule governing the scope of a search incident to arrest. In that

case, the defendant exited his vehicle before the police made

contact with him, presenting the issue “whether Belton’s rule is

limited to situations where the officer makes contact with the

occupant while the occupant is inside the vehicle.” 541 U.S. at

617. The Court determined that “[i]n all relevant aspects, the

arrest of a suspect who is next to a vehicle presents identical

concerns regarding officer safety and the destruction of evidence

as the arrest of one who is inside the vehicle.” Id. at 621. Indeed,

A custodial arrest is fluid and ‘[t]he danger to the police

officer flows from the fact of the arrest, and its attendant

proximity, stress, and uncertainty.’ The stress is no less
11

merely because the arrestee exited his car before the

officer initiated contact, nor is an arrestee less likely to

attempt to lunge for a weapon or to destroy evidence if

he is outside of . . . the vehicle. In either case, the officer

faces a highly volatile situation. It would make little

sense to apply two different rules to what is, at bottom,

the same situation.

Id. (quoting Robinson, 414 U.S. at 234–35 & n.5) (emphasis and

alteration in original) (internal citations omitted). Consequently,

the Court “conclude[d] that Belton governs even when an officer

does not make contact until the person arrested has left the

vehicle.” Id. at 617.

Moreover, the Court continued to stress the need for a brightline rule “readily understood by police officers and not

depending on differing estimates of what items were or were not

within reach of an arrestee at any particular moment.” Id. at

622–23. Thus, once the police have probable cause to arrest a

“recent occupant” of a vehicle, “it is reasonable to allow officers

to ensure their safety and to preserve evidence by searching the

entire passenger compartment,” id. at 623, noting that “an

arrestee’s status as a ‘recent occupant’ may turn on his temporal

or spatial relationship to the car at the time of the arrest and

search,” id. at 622.

According to the record, Dowd’s first contact with Mapp

occurred as Mapp exited his vehicle, 5/2/05 Tr. at 13–14; Dowd

then arrested Mapp at the hood of Dowd’s police cruiser, id. at

14–15, which was parked behind Mapp’s vehicle, id. at 14.

Thus, Mapp was close enough to his car to justify the search.

See Michigan v. Long, 463 U.S. 1032, 1035 & n.1 (1983) (noting

officers could have searched passenger compartment of car under

Belton where occupant “met the deputies at the rear of the car”);

United States v. Poggemiller, 375 F.3d 686, 687–88 (8th Cir.
12

7

This time estimate comes from Dowd’s description of Napper’s

movements. First, Dowd noticed Napper leaving the scene with her

children as Mapp approached him (before Mapp’s arrest). 5/2/05 Tr.

16. Napper returned in “approximately five minutes”—after Mapp’s

arrest for failure to present a driver’s license. Id. at 32–33. At that

point, Dowd asked Napper for the keys to Mapp’s car and she escorted

two officers in a failed attempt to retrieve the keys, returning again in

“approximately five minutes.” Id. at 34. The police then discovered

the unlocked door and began their search. Id. Moreover, Mapp’s

assertion that the search for the car keys was “an extraordinary

‘intervening event[],’ ” Appellant’s Br. at 41 (quoting Abdul-Saboor,

85 F.3d at 668) (alteration in original), fails because the resulting

delay was entirely of Mapp’s and Napper’s making, see 5/2/05 Tr.

17–18. Napper further delayed the search by taking the other officers

to retrieve the keys only to decide that “she forgot where she put her

kids.” Id. at 17. Mapp thus “artificially segments his arrest and the

search; they were, as a practical matter, one continuous event,” AbdulSaboor, 85 F.3d at 669, which included an ongoing search for Mapp’s

car keys caused by Mapp’s and Napper’s attempts to frustrate that

effort.

2004) (defendant was recent occupant when arrested ten to

fifteen feet from his car); cf. Wesley, 293 F.3d at 549 (“[T]he

police may search the passenger compartment of the vehicle

without regard to whether the occupant was removed and

secured at the time of the search.”). Further, the search of

Mapp’s car, which occurred around ten minutes after he was

arrested, was not “so separated in time or by intervening events

that the [search] cannot fairly be said to have been incident to the

[arrest].”7 Abdul-Saboor, 85 F.3d at 668; see United States v.

Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (ten to fifteen

minute delay contemporaneous); cf. In re Six Hundred ThirtyNine Thousand Five Hundred and Fifty-Eight Dollars in U. S.

Currency, 955 F.2d 712, 717–18, 717 n.7 (D.C. Cir. 1992)
13

(search too remote where it followed arrest by “at least thirty

minutes”). We conclude that Mapp qualifies as a “recent

occupant” under Thornton and, accordingly, we find the search

of Mapp’s vehicle fits easily within the search incident to arrest

exception to the Fourth Amendment’s warrant requirement. 

For the foregoing reasons, we affirm the district court’s

denial of Mapp’s motion to suppress.

So ordered.