15‐3776‐cr

United States v. Diaz

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2016

4 (Argued:  November 29, 2016 Decided:  April 18, 2017)

5 Docket No. 15‐3776‐cr

6

7

8 UNITED STATES OF AMERICA,

9 Appellee,

10 v.

11 JOSE DIAZ,

12 Defendant‐Appellant.

13

14 Before: WALKER, SACK, and CHIN, Circuit Judges.

15 An officer observed the defendant in an apartment‐building stairwell with

16 an open container of alcohol, an apparent violation of New York Cityʹs open‐

17 container law.  The officer initially intended only to issue a summons for the

18 violation, not to make an arrest.  But after discovering a firearm in the

19 defendantʹs jacket pocket, she arrested him.  He was ultimately found guilty of

20 possessing a firearm as a previously convicted felon, in violation of 18 U.S.C.

21 § 922(g).  The principal question presented on appeal is whether the district court

22 (Jesse M. Furman, Judge) erred in denying the defendantʹs motion to suppress the
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United States v. Diaz

2

1 gun on Fourth Amendment grounds.  We conclude that it did not because the

2 officer held an objectively reasonable belief that the defendant had violated the

3 open‐container law and the gun was discovered by means of a lawful search

4 incident to an arrest.

5 AFFIRMED.  

6 ROBERT W. ALLEN (Anna M. Skotko, on the

7 brief), Assistant United States Attorney, for

8 Joon H. Kim, Acting United States Attorney

9 for the Southern District of New York, for

10 Appellee.

11 DANIEL HABIB, Federal Defenders of New

12 York, Inc., Appeals Bureau, New York, NY,

13 for Defendant‐Appellant.

14 Jordan Wells, Alexis Karteron, (on the brief),

15 for Amicus Curiae New York Civil Liberties

16 Union Foundation.

17 SACK, Circuit Judge:

18 During a routine patrol of a Bronx apartment building, New York City

19 Police Department (ʺNYPDʺ) Officer Chris Aybar observed defendant Jose Diaz

20 sitting in a stairwell while holding a plastic cup that seemed to Aybar to smell of

21 alcohol.  Officer Aybar initially intended only to issue Diaz a summons—not to

22 make an arrest—for violating New Yorkʹs open‐container law.  She ordered him

23 to stand against the wall and produce identification.  Diaz stood and then, as if to
15‐3776‐cr

United States v. Diaz

3

1 retrieve something, fumbled with his hands in his jacket pockets and rearranged

2 his waistband.  Officer Aybar frisked Diaz and felt a bulge on the side of his

3 jacket; she opened his jacket pocket and discovered a loaded handgun.  She then

4 arrested Diaz, who was later found guilty, by the presiding district judge (Jesse

5 M. Furman, Judge) acting as trier of fact, of being a previously convicted felon in

6 possession of a firearm in violation of 18 U.S.C. § 922(g).  He received a sentence

7 of thirty‐three monthsʹ imprisonment.

8 Before the trial, Diaz filed a motion to suppress evidence about the

9 presence of the gun on Fourth Amendment grounds.  The district court denied

10 the motion, concluding that the search was a lawful search incident to an arrest

11 supported by probable cause.  Having thereafter been convicted, Diaz now

12 appeals that denial, arguing that (1) Officer Aybar lacked probable cause to

13 arrest and search Diaz for violating New York Cityʹs open‐container law, N.Y.C.

14 Admin. Code § 10‐125(b), because an apartment‐building stairwell is not a

15 ʺpublic placeʺ within the meaning of that law, and (2) in any event, the

16 warrantless search was not a lawful search incident to an arrest because Officer

17 Aybar did not intend to arrest Diaz when she began the search.
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United States v. Diaz

4

1 We disagree.  We conclude that Officer Aybar had probable cause to arrest

2 Diaz inasmuch as she had a reasonable belief that an apartment‐building

3 stairwell is a public place for purposes of the open‐container law and that Diaz

4 was violating that law.  And because she had probable cause to arrest Diaz—and

5 ultimately did arrest him—the warrantless search was a lawful search incident to

6 an arrest, even though Officer Aybar testified that before finding the gun she

7 intended only to issue a summons, not to make an arrest.

8 BACKGROUND

9 On the night of March 21, 2015, NYPD Officers Chris Aybar and Jose

10 Espinal entered a four‐story, twelve‐unit private apartment building located at

11 584 East 167th Street in New York Cityʹs Borough of the Bronx, to conduct a

floor‐by‐floor patrol as part of the NYPDʹs ʺClean Hallsʺ program, 12 1 pursuant to

13 which officers enter common spaces in residential buildings with the building

14 ownerʹs consent in an effort to deter crime, principally drug dealing and

15 trespassing.  Upon entering the apartment building through the front door,

                                                            

1 This program has also been referred to as “Operation Clean Halls” and the “Trespass

Affidavit Program.”  Ligo v. City of New York, 925 F. Supp. 2d 478, 484‐85, 517 (S.D.N.Y.

2013) (explaining that the ʺprogram allows police officers to patrol inside and around

thousands of private residential apartment buildings throughout New York Cityʺ 

(internal quotation marks omitted)).
15‐3776‐cr

United States v. Diaz

5

which was propped open with a newspaper,2 1 the officers immediately smelled

2 marijuana.   

3 They proceeded to climb the stairs to the third‐floor landing, where they

4 saw three men: defendant Jose Diaz, Collin Maloney, and Joshua Knox.  Diaz

5 was sitting next to a bottle of vodka and holding a red plastic cup.  As Officer

6 Aybar approached Diaz, she saw clear liquid in the cup and smelled what

7 seemed to be alcohol.  Maloney was also holding a red plastic cup, and Knox was

8 holding a lit ʺbluntʺ (marijuana cigarette) in one hand and a box of ʺroachesʺ 

9 (butts of smoked marijuana cigarettes) in the other.

10 Officer Aybar testified that she did not initially intend to arrest Diaz, only

to issue him a summons for violating New Yorkʹs open‐container law, 11 3 which

12 provides that ʺ[n]o person shall drink or consume an alcoholic beverage, or

13 possess, with intent to drink or consume, an open container containing an

14 alcoholic beverage in any public place . . . .ʺ  N.Y.C. Admin. Code § 10‐125(b).  

15 Officer Aybar had previously received training on the open‐container law and

                                                            

2 The record does not disclose the identity of the person responsible for placing the

paper there.

3 Officer Aybar also testified that she intended to issue a summons to Maloney for an

open‐container offense, and to arrest Knox for marijuana possession.   
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United States v. Diaz

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1 had issued approximately fifty summonses for open‐container violations, often

in apartment buildings.4 2

3 Because Officer Aybar did not feel safe confronting Diaz while he was

4 seated, she ordered him to stand against the wall and produce his identification.  

5 Diaz stood, and then, as if to retrieve something, fumbled with his hands in his

6 jacket pockets and rearranged his waistband.  Fearing, because of his

7 movements, that her safety was threatened, Officer Aybar frisked Diaz and felt a

8 bulge on his jacket.  She opened his jacket pocket and discovered a loaded .380

9 caliber Taurus firearm.  She then handcuffed Diaz and transported him to the

10 police station, where she issued him a summons for the open‐container violation.   

11 On May 5, 2015, a grand jury returned a single‐count indictment charging

12 Diaz with possessing a firearm as a previously convicted felon in violation of 18

13 U.S.C. § 922(g).  Diaz filed a motion to suppress evidence concerning the firearm

14 on Fourth Amendment grounds.  On July 24, 2015, during an evidentiary hearing

15 on that motion, Diaz testified that (1) he was not drinking alcohol in the

16 apartment‐building stairwell; (2) he produced his identification when Officer

                                                            

4 Officer Aybar had previously arrested open‐container‐law violators who had open

warrants.   
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United States v. Diaz

7

1 Aybar asked for it; and (3) Officer Aybar took the jacket (which he was not

2 wearing) from him and searched it rather than frisking him.  

3 Following the hearing, the district court denied the suppression motion by

4 opinion and order dated August 14, 2015.  See United States v. Diaz, 122 F. Supp.

5 3d 165, 181 (S.D.N.Y. 2015).  Crediting the officersʹ testimony5 over that of Diaz,

6 id. at 168, the district court found that ʺOfficer Aybar indisputably had probable

7 cause to believe that Diaz was drinking alcohol or possessing alcohol with intent

8 to drink it,ʺ based on Officer Aybarʹs testimony that ʺshe smelled alcoholʺ and

9 ʺobserved Diaz holding a red [plastic] cup containing a clear liquid while sitting

10 in close proximity to an open bottle of vodka,ʺ id. at 173.

                                                            

5 The district court ʺdecline[d, however,] to credit Officer Aybarʹs testimony in one

critical respectʺ: It explained that ʺ[a]fter the [g]overnmentʹs redirect examination, in

response to additional questioning by the Court, Officer Aybar testified that Diaz

refused to give his identification to her when asked, telling her that he didnʹt have

[identification],ʺ which was ʺpotentially significantʺ because Officer Aybar had

previously testified that if an individual who had committed an open‐container

violation did not have identification, ʺshe would have to arrest him or her and verify

who they were.ʺ  Diaz, 122 F. Supp. 3d at 169 (internal quotation marks omitted).  

Notwithstanding Officer Aybarʹs testimony, the district court expressly declined to find

that Diaz had refused to provide identification because (1) ʺOfficer Aybar did not

mention Diazʹs alleged refusal [at any point] until the Courtʹs questionsʺ; and (2)

ʺalthough Officer Aybar had testified that she would have had to arrest Diaz for

violating the open‐container law if he did not have identification, she unambiguously

admitted that it was only after she found the gun in [his] pocket—which indisputably

happened after any exchange about identification—that she decided to [] arrest him.ʺ  

Id. at 170 (internal quotation marks, citations, and brackets omitted).
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United States v. Diaz

8

1 The district court rejected Diazʹs argument that Officer Aybar lacked

2 probable cause to arrest him on the ground that an apartment‐building stairwell

3 is not a ʺpublic placeʺ within the meaning of the open‐container law.  See id. at

4 173‐76.  It noted that ʺa compelling argument [could] certainly be made that the

5 common areas of residential buildings do not qualify as public places for

6 purposes of the [] law,ʺ but ultimately concluded that it ʺneed not resolve that

7 unsettled question of state law because, even if Officer Aybar was mistaken in

8 her belief that the stairwell qualified as a ʹpublic placeʹ for purposes of the open‐

9 container law, her mistake was an objectively reasonable oneʺ that did not violate

10 the Fourth Amendment.  Id. at 174.

11 The district court also rejected Diazʹs argument that the search could not

12 be justified as a search incident to an arrest because Officer Aybar did not intend

13 to arrest Diaz until after she found the gun.  See id. at 176‐81.  In reaching this

14 conclusion, it relied on United States v. Ricard, 563 F.2d 45 (2d Cir. 1977), where

15 we held that a search conducted in similar circumstances was a constitutional

16 search incident to an arrest, id. at 49. The district court noted, however, a tension

17 between Ricard and the Supreme Courtʹs subsequent decision in Knowles v. Iowa,

18 525 U.S. 113 (1998), in which it held unlawful a search conducted after an officer
15‐3776‐cr

United States v. Diaz

9

1 had already issued a citation for a traffic infraction.  See Diaz, 122 F. Supp. 3d at

178‐80 (citing Knowles, 525 U.S. at 117‐19).6 2

3 After the district court denied Diazʹs motion to suppress, the case

4 proceeded to a bench trial on stipulated facts.  On September 11, 2015, Diaz was

5 found guilty of possessing a firearm as a previously convicted felon in violation

6 of 18 U.S.C. § 922(g).  He received a sentence of thirty‐three monthsʹ 

7 imprisonment.  This appeal followed.

8 DISCUSSION

9 Diaz appeals from the denial of his motion to suppress evidence

10 concerning the gun found in his jacket on the grounds that (1) Officer Aybar

11 lacked probable cause to conduct the search, and (2) in any event, the warrantless

12 search was not justified as a search incident to an arrest because Officer Aybar

                                                            

6 The district court ʺswiftly rejectedʺ the governmentʹs alternative theory that the

search was justified as a frisk on the basis of reasonable suspicion because, at the time of

the search, there were not sufficient facts to establish reasonable suspicion that Diaz was

armed and dangerous.  Diaz, 122 F. Supp. 3d at 172 (citing Terry v. Ohio, 392 U.S. 1, 21,

27 (1968)).
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United States v. Diaz

10

1 did not intend to arrest him when she began the search.  We disagree in both

respects.7 2

3 I. Standard of Review

4 ʺOn appeal from a district courtʹs ruling on a motion to suppress evidence,

5 we review legal conclusions de novo and findings of fact for clear error.ʺ  United

6 States v. Ganias, 824 F.3d 199, 208 (2d Cir. 2016) (en banc) (internal quotation

7 marks omitted).  ʺWe also review de novo mixed questions of law and fact,ʺ and

8 ʺpay special deference to the district courtʹs factual determinations going to

9 witness credibility.ʺ  United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015)

10 (emphasis and internal quotation marks omitted).

                                                            

7 Diaz also challenges his sentence on appeal.  His only argument in this regard is that

the district court erroneously concluded that his prior conviction for possession of a

sawed‐off shotgun qualified as a ʺcrime of violenceʺ pursuant to the then‐applicable

residual clause of section 4B1.2 of the United States Sentencing Guidelines

(ʺGuidelinesʺ), U.S.S.G. § 4B1.2(a)(2) (Nov. 2015) (defining a ʺcrime of violenceʺ as an

offense that ʺis burglary of a dwelling, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury to anotherʺ 

(emphasis added)), which he contends is unconstitutionally vague in light of Johnson v.

United States, 135 S. Ct. 2551, 2563 (2015) (holding that a nearly identical residual clause

in the Armed Career Criminal Act was unconstitutionally vague).  While this appeal

was pending, however, the Supreme Court rejected this same argument on the ground

that the void‐for‐vagueness doctrine does not apply to the Guidelines.  See Beckles v.

United States, 137 S. Ct. 886, 890 (2017); see also id. at 897‐98 (Ginsburg, J., concurring)

(explaining her view that, in any event, the residual clause of section 4B1.2 is not

unconstitutionally vague as applied to a prior conviction for possession of a sawed‐off

shotgun because that offense is explicitly enumerated in the commentary of section

4B1.2).  Accordingly, we reject Diazʹs vagueness challenge.
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United States v. Diaz

11

1 II. Probable Cause

2 Diazʹs first argument fails because at the time of the search, Officer Aybar

3 had probable cause to arrest Diaz for a violation of New Yorkʹs open‐container

4 law based on a reasonable belief that an apartment‐building stairwell is a public

5 place for purposes of that law.

6 A police officer ordinarily has probable cause to arrest when he or she

7 ʺha[s] knowledge of, or reasonably trustworthy information as to, facts and

8 circumstances that are sufficient to warrant a person of reasonable caution in the

9 belief that an offense has been or is being committed by the person to be

10 arrested.ʺ  Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010)

11 (internal quotation marks omitted).  An officerʹs assessment in this regard need

12 not ʺbe perfectʺ because ʺthe Fourth Amendment allows for some mistakes on

13 the part of government officials,ʺ including ʺreasonable . . . mistakes of law.ʺ  

14 Heien v. North Carolina, 135 S. Ct. 530, 536 (2014); see also Herring v. United States,

15 555 U.S. 135, 139 (2009) (ʺWhen a probable‐cause determination was based on

16 reasonable but mistaken assumptions, the person subjected to search or seizure

17 has not necessarily been the victim of a constitutional violation.ʺ).
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United States v. Diaz

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1 Officer Aybarʹs probable‐cause determination was predicated on the New

2 York open‐container law, which provides that ʺ[n]o person shall drink or

3 consume an alcoholic beverage, or possess, with intent to drink or consume, an

4 open container containing an alcoholic beverage in any public place,ʺ N.Y.C.

Admin. Code § 10‐125(b), 5 8 where ʺpublic placeʺ is defined, in pertinent part, as

6 ʺ[a] place to which the public or a substantial group of persons has access,

7 including, but not limited to, any highway, street, road, sidewalk, parking area,

8 shopping area, place of amusement, playground, park or beach located within

9 the city,ʺ id. § 10‐125(a)(2).  Diaz argues that the apartment‐building stairwell

10 where he was found with an open container of alcohol is not a ʺpublic placeʺ 

11 because, although it is a common area, it is located within a locked residential

building.9 12   In his view, canons of construction such as ejusdem generis and noscitur

13 a sociis support his construction of the open‐container law.  But as the district

14 court correctly acknowledged, Diaz, 122 F. Supp. 3d at 174‐75, the question

15 presented here is not whether a common area of an apartment such as a stairwell

                                                            

8 There is an exception to the open‐container prohibition for ʺa block party, feast or

similar function for which a permit has been obtained.ʺ  N.Y.C. Admin. Code § 10‐

125(b).  The exception does not apply here.

9 The buildingʹs owner permitted NYPD officers to enter the property pursuant to the

ʺClean Hallsʺ program.  Although likely less pertinent, at the time the officers entered

the apartment building, the front door was propped open with a newspaper.  
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United States v. Diaz

13

1 constitutes a public place within the meaning of the open‐container law, but only

2 whether Officer Aybar had an objectively reasonable belief that it so qualified.

3 The Supreme Courtʹs decision in Heien provides clear guidance in this

4 regard.  There, two North Carolina police officers found cocaine in a vehicle they

5 had stopped because one of its two tail lights was inoperative, which the officers

6 believed to be a violation of state law.  Heien, 135 S. Ct. at 534, 540.  This belief

7 turned out to be mistaken; on appeal, a state appellate court determined that the

8 applicable state law required only one working tail light.  Id. at 535, 540.  The

9 Supreme Court held that the stop (and subsequent search), although premised

10 on an erroneous understanding of the traffic law, was nonetheless constitutional

11 because ʺreasonable suspicion can rest on a mistaken understanding of the scope

12 of a legal prohibition,ʺ id. at 536, so long as that mistaken understanding was

ʺobjectively reasonable,ʺ id. at 539 (emphasis omitted).10 13   That was so in Heien

14 because, at the time of the stop, the North Carolina tail‐light law was ambiguous,

                                                            

10 The Heien principle accommodates ʺthe reality that an officer may suddenly confront

a situation in the field as to which the application of a statute is unclear—however clear

it may later become.ʺ  Heien, 135 S. Ct. at 539 (internal quotation marks omitted).  For

example, ʺ[a] law prohibiting ʹvehiclesʹ in the park either covers Segways or not, but an

officer will nevertheless have to make a quick decision on the law the first time one

whizzes by.ʺ  Id. (citation omitted).
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United States v. Diaz

14

1 and the stateʹs appellate courts had not previously resolved the ambiguity.  See

2 id. at 540.

3 The test for whether an officerʹs mistake of law was objectively reasonable

4 ʺis not as forgiving as the one employed in the distinct context of deciding

5 whether an officer is entitled to qualified immunity,ʺ id. at 539, often where a

party brings a claim under Bivens 6 11 or 42 U.S.C. § 1983 for a violation of their

7 constitutional rights.  Cf. Heien, 135 S. Ct. at 539‐40 (ʺ[A]n officer can gain no

8 Fourth Amendment advantage through a sloppy study of the laws he is duty‐

9 bound to enforce.ʺ).  Indeed, as Justice Kagan explained in her concurring

10 opinion in Heien, ʺthe test is satisfied [only] when the law at issue is so doubtful

11 in construction that a reasonable judge could agree with the officerʹs view.ʺ  Id. at

12 541 (Kagan, J., concurring) (internal quotation marks omitted); see also United

13 States v. Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016) (concluding that statutory

14 ambiguity is a prerequisite to a determination that an officerʹs mistake of law

                                                            

11 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
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United States v. Diaz

15

1 was objectively reasonable); United States v. Alvarado‐Zarza, 782 F.3d 246, 250 (5th

Cir. 2015) (same).12 2

3 We think that Officer Aybarʹs belief that the apartment‐building stairwell

4 qualified as a ʺpublic placeʺ within the meaning of the open‐container law was

5 an objectively reasonable prediction of the scope of the law when it was made.  

6 As in Heien, her assessment was premised on a reasonable interpretation of an

7 ambiguous state law, the scope of which had not yet been clarified.  Even now,

8 the New York Court of Appeals has not addressed whether a common area

9 inside an apartment building is a ʺpublic placeʺ within the meaning of the open‐

10 container law, and the other New York courts that have done so have reached

11 conflicting conclusions.  Compare People v. Medina, 16 Misc. 3d 382, 389, 842

                                                            

12 In this respect, the label ʺmistake of lawʺ may be a misnomer that could lead to

confusion.  The notion of a mistake seems to presuppose that the legal question was

already settled, yet it is only when the legal question is unsettled that an officerʹs

erroneous assessment of the law can be objectively reasonable.  It may be useful,

therefore, to think of such an assessment instead as an inaccurate prediction of law.  In

this light, the question is whether the officerʹs prediction as to the scope of the

ambiguous law at issue was objectively reasonable—even if ultimately mistaken—such

that a reasonable judge could have accepted it at the time it was made in light of the

statutory text and the available judicial interpretations of that text.  Formulated this

way, the Heien principle has echoes of a defendantʹs due‐process right to fair warning of

the crime for which he or she is punished.  See Bouie v. City of Columbia, 378 U.S. 347, 354

(1964) (ʺIf a judicial construction of a criminal statute is unexpected and indefensible by

reference to the law which had been expressed prior to the conduct in issue, it must not

be given retroactive effect.ʺ (internal quotation marks omitted)).   
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United States v. Diaz

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1 N.Y.S.2d 227, 232, (Sup. Ct. Bronx Cty. 2007) (concluding that an apartment‐

2 building lobby is a ʺpublic placeʺ for purposes of the open‐container law), with

3 People v. Chavez, 41 Misc. 3d 526, 533‐34, 972 N.Y.S.2d 858, 862‐63, (Crim. Ct.

4 Bronx Cty. 2013) (concluding that an apartment‐building elevator is not a ʺpublic

5 placeʺ within the meaning of the open‐container law); see also United States v.

6 Brown, No. 07‐CV‐232 (JBW), 2007 WL 2121883, at *2‐4, 2007 U.S. Dist. LEXIS

7 54057, at *6‐8 (E.D.N.Y. July 25, 2007) (relying on Medina to conclude that a

8 bodega is a ʺpublic placeʺ within the meaning of the open‐container law).  In

9 light of these conflicting precedents, Officer Aybarʹs belief that an apartment‐

10 building stairwell is a public place within the meaning of the open‐container law

11 was a reasonable, even if mistaken, assessment of the scope of that law at the

12 time it was made.  Thus, contrary to Diazʹs contention, Officer Aybar had

probable cause to believe that Diaz had violated the open‐container law.13 13    

                                                            

13 We acknowledge that applying the Heien principle may come at a cost:  It may

ʺha[ve] the perverse effect of preventing or delaying the clarification of the lawʺ 

inasmuch as ʺcourts need not interpret statutory language but can instead simply

decide whether an officerʹs interpretation was reasonable[,]ʺ a ʺresult [that] is bad for

citizens, who need to know their rights and responsibilities, and . . . bad for police, who

would benefit from clearer direction.ʺ  Heien, 135 S. Ct. at 544 (Sotomayor, J.,

dissenting); see also Josh Bowers, Annoy No Cop, 166 PENN L. REV. (forthcoming 2017), at

*34‐35, available at https://ssrn.com/abstract=2928283 (last visited Mar. 22, 2017) (arguing

that the effect of Heien is asymmetrical such that it harms citizens while it benefits
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United States v. Diaz

17

1 III. Search Incident to an Arrest

2 Diaz next contends that the search was not a lawful search incident to an

3 arrest because, at the time of the search, Officer Aybar did not intend to arrest

4 Diaz and would not have ultimately done so had she not discovered the gun as a

5 fruit of the search.  We are not persuaded.

6 The search‐incident‐to‐arrest doctrine is an exception to the general

7 requirement that an officer must obtain a judicial warrant supported by probable

8 cause before conducting a search.  See Riley v. California, 134 S. Ct. 2473, 2482

9 (2014) (recognizing a search incident to an arrest as a ʺspecific exceptionʺ to the

10 Fourth Amendmentʹs warrant requirement).  It serves two interests: ʺprotecting

11 arresting officers and safeguarding any evidence of the offense of arrest that an

12 arrestee might conceal or destroy.ʺ  Arizona v. Gant, 556 U.S. 332, 339 (2009).  

13 These interests are not evaluated on a case‐by‐case basis, but are assumed to be

14 present whenever an officer is justified in making an arrest.  Riley, 134 S. Ct. at

15 2483.  It makes no difference whether the search occurs before or after the arrest,

16 see Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), so long as it is ʺsubstantially

                                                                                                                                                                                               

officers).  We make no attempt here to clarify the ambiguity in the open‐container law

because it is a question of state law, the resolution of which is unnecessary to our

conclusion.   
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United States v. Diaz

18

1 contemporaneous with the arrest and is confined to the immediate vicinity of the

2 arrest,ʺ Shipley v. California, 395 U.S. 818, 819 (1969) (internal quotation marks

3 omitted).

4 In United States v. Ricard, 563 F.2d 45 (2d Cir. 1977), we squarely addressed

5 whether a search incident to an arrest can be justified where an officer did not

6 intend to make an arrest prior to conducting the search, see id. at 48.  The officer

7 there did not initially intend to arrest a driver stopped for speeding, but after a

8 search of a small tinfoil packet revealed cocaine, the officer made an arrest.  Id. at

9 48‐49.  We held that the search was lawful because the officer had probable cause

10 to arrest the defendant for speeding, regardless of whether or not the officer

11 intended to arrest the defendant before discovering the cocaine.  Id. at 49

12 (explaining that, although ʺthe contested search was actually the cause of [the

13 defendantʹs] arrest[,] . . . the fact that [the officer] had cause to arrest [the

14 defendant] for speeding, even if he initially determined not to do so, was a

15 sufficient predicate for a full search [incident to an arrest]ʺ).

16 Diaz has conceded that Ricard controls if it continues to be precedential

17 and therefore binding on us, but contends that it does not remain binding

18 precedent in light of the Supreme Courtʹs decision in Knowles v. Iowa, 525 U.S. 113
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United States v. Diaz

19

1 (1998).  There, a police officer, who had probable cause to arrest a defendant

2 stopped for speeding, issued a citation for the speeding violation before

3 conducting a full search of the car that revealed marijuana, prompting an arrest.  

4 Id. at 114.  The Supreme Court held that the arrest could not be justified as a

5 search incident to an arrest.  Id. at 117‐19.  Although it acknowledged ʺthat the

6 authority to conduct a full field search as incident to arrest [is] a bright‐line ruleʺ 

7 that is ʺbased on the concern for officer safety and destruction or loss of evidence,

8 but which d[oes] not depend in every case upon the existence of either concern,ʺ 

9 id. at 118 (internal quotation marks), the Court ʺdecline[d]ʺ to ʺextend that

10 ʹbright‐line ruleʹ to a situation where the concern for officer safety is not present

11 to the same extent and the concern for destruction or loss of evidence is not

12 present at all,ʺ namely where a citation for speeding had already been issued

13 during a routine traffic stop, id. at 118‐19; see also id. at 117‐18 (explaining that

14 ʺ[t]he threat to officer safety from issuing a traffic citation . . . [was] a good deal

15 less than in the case of a custodial arrest,ʺ and that the need‐to‐preserve‐evidence

16 rationale was not implicated because ʺ[o]nce [the defendant] was stopped for
15‐3776‐cr

United States v. Diaz

20

1 speeding and issued a citation, all the evidence necessary to prosecute that

offense had been obtainedʺ).14 2

3 Knowles can in some respects be likened to Ricard.  The officers in both

4 cases had probable cause to arrest the defendants for speeding but initially

5 elected not to do so, and then proceeded to conduct searches that revealed

6 evidence of crimes for which the defendants were ultimately arrested.  But

7 critically, the search in Knowles occurred after the officer had completed the traffic

8 stop by issuing a citation, whereas the search in Ricard (and the case at bar)

9 occurred before any such event took place.  It thus remained uncertain in Ricard

10 (and here) whether the encounter would lead to an arrest; the dangers to the

11 officer that accompany the prospect of arrest therefore remained present.  See

12 Knowles, 525 U.S. at 117 (explaining that ʺ[t]he danger to the police officer flows

13 from the fact of arrest, and its attendant proximity, stress, and uncertaintyʺ 

                                                            

14 As Diaz notes, the Sixth and Ninth Circuits have cited Knowles for the proposition

that there can be no search or seizure incident to an arrest unless an arrest is made.  See

Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir. 2005) (ʺHad [the defendant] been

arrested, ample precedent would permit a search or seizure incident to arrest.ʺ (internal

quotation marks omitted)); Bennett v. City of Eastpointe, 410 F.3d 810, 824 (6th Cir. 2005)

(ʺThe mere fact that an officer has the authority to arrest an individual does not, and

never has, automatically permitted the officer to conduct a pat‐down search should he

choose not to effectuate the arrest.ʺ (emphasis in original)).  But those cases are of no

help to Diaz, who was in fact arrested.
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United States v. Diaz

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1 (internal quotation marks omitted)).  In Knowles, by contrast, those dangers had

2 virtually vanished by the time the officer issued the citation, which extinguished

3 the prospect of an arrest.  We therefore do not understand Knowles to foreclose a

4 search incident to an arrest in circumstances where, as in Ricard and the case

5 before us, an officer has not yet issued a citation and ultimately makes a lawful

6 arrest after conducting a search, regardless of whether or not the officer intended

7 to do so prior to the search.  Where there is a basis for an arrest, an officer has

8 reason to be concerned for her safety until she issues a citation and the stop ends.  

9 Cf. Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015) (“A seizure justified only

10 by a police‐observed traffic violation . . . becomes unlawful if it is prolonged

11 beyond the time reasonably required to complete the mission of issuing a ticket

12 for the violation.” (internal quotation marks and brackets omitted)).

13 Our conclusion comports with those of other circuits addressing the scope

14 of Knowles.  See, e.g., United States v. Chauncey, 420 F.3d 864, 872 (8th Cir. 2005)

15 (rejecting the defendantʹs ʺattempt[] to liken his case to Knowlesʺ because

16 ʺ[w]hatever the officerʹs subjective intention, [] the record does not show that the

17 officer had completed the traffic stop by the time he made a formal arrestʺ);

18 United States v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002) (limiting Knowles to
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United States v. Diaz

22

1 circumstances where ʺ[an] officer [with] probable cause to make an arrest . . .

2 issues a citation instead of arresting the defendantʺ); see also United States v.

3 Williams, 170 F. Appʹx 399, 405 (6th Cir. 2006) (unpublished opinion) (concluding

4 that there is a ʺsignificant difference between Knowles and the present caseʺ 

5 because ʺ[i]n Knowles, the officers issued the defendant a citation before they

6 searched the vehicleʺ (emphasis in original)).

7 Arguing otherwise, Diaz asserts that Knowles stands for a broader

8 proposition that overrules Ricard:  An officer may conduct a search incident to an

9 arrest only if she has already made an arrest or an arrest is impending.  In

10 support of this interpretation, he points to a recent New York Court of Appeals

11 decision addressing the scope of Knowles.  See People v. Reid, 24 N.Y.3d 615, 26

12 N.E.3d 237, 2 N.Y.S.3d 409 (2014).  There, an officer who had probable cause to

13 arrest a driver for driving while intoxicated ordered the driver out of the car,

14 patted him down, discovered a switchblade knife, and arrested him for criminal

15 possession of a weapon.  Id. at 618, 26 N.E.3d at 238, 2 N.Y.S.3d at 410.  The

16 officer testified that he did not initially intend to arrest the driver, but decided to

17 do so only after he found knife.  Id.  Relying on Knowles, the court held that the

18 search was unconstitutional on the ground that ʺto say that the search was
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United States v. Diaz

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1 incident to arrest does not make senseʺ where ʺbut for the search there would

2 have been no arrest at all.ʺ  Id. at 619, 26 N.E.3d at 239, 2 N.Y.S.3d at 411.

3 We think his rationale is mistaken for two reasons.  First, it ignores that an

4 officer who stops a person to issue a citation faces an evolving situation.  As

5 events develop and new information becomes available—the presence of a gun,

6 for example—a police officer is entitled to change her course of action.  Cf.

7 Graham v. Connor, 490 U.S. 386, 396‐97 (1989) (“The calculus of reasonableness

8 must embody allowance for the fact that police officers are often forced to make

9 split‐second judgments[ ]in circumstances that are tense, uncertain, and rapidly

10 evolving. . . .”).  Second, it appears to require a court to consider the officerʹs

11 intent at the time of arrest, an inquiry at odds with the Supreme Courtʹs

12 ʺrepeated[] reject[ion of] a subjective approachʺ in the Fourth Amendment

13 context.  Fernandez v. California, 134 S. Ct. 1126, 1134 (2014) (internal quotation

14 marks omitted); see also Kentucky v. King, 563 U.S. 452, 464 (2011) (ʺ[W]e have

15 never held, outside limited contexts such as an inventory search or

16 administrative inspection . . . , that an officerʹs motive invalidates objectively

17 justifiable behavior under the Fourth Amendment.ʺ (ellipsis in original) (internal

18 quotation marks omitted)).
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United States v. Diaz

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1 Diaz insists that no subjective inquiry is necessary to determine whether

2 an arrest was occurring or about to occur at the time of the search.  That

3 question, in his view, can be answered on a case‐by‐case basis by looking only to

4 objective evidence such as, inter alia, an officerʹs contemporaneous statements,

5 the length of any pre‐search detention, the issuance of a citation, calls for backup,

6 the presence or absence of handcuffs, and the treatment of similarly situated

7 suspects at the scene.

8 But even if limited to objective evidence, the case‐by‐case approach runs

9 counter to the principle ʺthat the authority to conduct a full field search as

10 incident to arrest [is] a bright‐line rule.ʺ  Knowles, 525 U.S. at 118 (internal

11 quotation marks omitted).  The Supreme Court has long recognized that in the

12 Fourth Amendment context, there is ʺ[a] need for [] bright‐line constitutional

13 standard[s],ʺ Virginia v. Moore, 553 U.S. 164, 175 (2008), which advance the

14 ʺessential interest in readily administrable rules,ʺ Atwater v. City of Lago Vista, 532

15 U.S. 318, 347 (2001).  This interest undergirds the well‐settled principle that

16 searches incident to arrest are categorically justified and do not require ʺcase‐by‐

17 case adjudicationʺ of their safety and evidentiary bases.  United States v. Robinson,

18 414 U.S. 218, 235 (1973).
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United States v. Diaz

25

1 Thus, we conclude that, contrary to the Reid courtʹs interpretation, Knowles

2 does not require case‐by‐case determinations as to whether or not an arrest was

3 impending at the time of the search; it instead stands for the proposition that the

4 bright‐line search‐incident‐to‐arrest doctrine does not apply where an officer has

completed the encounter by issuing a citation instead of making an arrest.15 5   That

6 proposition of law has no bearing on Ricard, which therefore remains binding

7 precedent that controls our analysis of this appeal.  Accordingly, Officer Aybarʹs

                                                            

15 Diaz also points to a recent decision by the California Supreme Court, People v.

Macabeo, 1 Cal. 5th 1206, 384 P.3d 1189, 211 Cal. Rptr. 3d 34 (2016), as further support for

his contention that a search incident to an arrest is not justified where there is no actual

or impending arrest at the time of the search.  In Macabeo, police officers stopped the

defendant for riding a bicycle through a stop sign, an infraction under California law;

during the stop, they seized his cell phone, found child pornography, and arrested him

on that basis.  See id. at 1210‐12, 384 P.3d at 1191‐92, 211 Cal. Rptr. 3d at 36‐38.  Relying

on Knowles, the California Supreme Court concluded that the cell‐phone search was not

a valid search incident to an arrest because (1) under California state law, officers could

only issue a citation—not make an arrest—for the stop‐sign infraction, and (2) there was

no ʺobjective indicia to suggest . . . that the officers would have arrested [the] defendant

[for the stop‐sign infraction].ʺ  Id. at 1219, 384 P.3d at 1197, 211 Cal. Rptr. 3d at 43‐44.  

Even assuming Macabeo is persuasive, and we are not without our doubts, it is

inapplicable here:  The state law there did not authorize the officers to arrest the

defendant for the stop‐sign infraction, id., whereas here, no New York law prohibited

Officer Aybar from arresting Diaz for the open‐container violation.  Moreover, the

analytical framework of Macabeo can be distinguished from our analysis here because

the California Supreme Court was not faced with a precedent, like Ricard, holding that a

search incident to an arrest is justified where an officer had probable cause to arrest the

individual and ultimately made an arrest, even if he or she did not intend to make the

arrest at the time of the search.  See Ricard, 563 F.2d at 48‐49.  Indeed, the Macabeo court

addressed the question as a matter of first impression in light of Knowles, whereas we

must apply Ricard, which we conclude remains binding precedent after Knowles.
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United States v. Diaz

26

1 search of Diaz was a valid search incident to an arrest, despite the fact that she

2 did not intend to arrest him when she began the search.  See Ricard, 563 F.2d at

48‐49.16 3

4 * * *

5 In sum, we conclude that in the context of the facts of the case at bar, an

6 officer like Officer Abyar, who has probable cause to believe that a person has

7 committed a crime, may lawfully search that person pursuant to the search‐

8 incident‐to‐arrest doctrine, provided that a ʺformal arrest follow[s] quickly on

9 the heels ofʺ the frisk.  Rawlings, 448 U.S. at 111.  It was irrelevant whether, at the

10 time of the search, Officer Aybar intended to arrest Diaz or merely to issue him a

11 citation.

12 CONCLUSION

13 For the foregoing reasons, we AFFIRM the judgment of the district court.

                                                            

16 We do not address whether the search was a lawful Terry search because we

conclude that the search was a lawful search incident to an arrest.