2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-14-2014

USA v. Joseph Donahue

Precedential or Non-Precedential: Precedential

Docket No. 13-4767

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 13-4767

________________

UNITED STATES OF AMERICA,

Appellant

v.

JOSEPH P. DONAHUE

 ________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 3-11-cr-00033-001)

Honorable A. Richard Caputo, District Judge

________________

Argued June 10, 2014

BEFORE: AMBRO, GREENBERG, and BARRY, 

Circuit Judges

(Filed: August 22, 2014)

______________
2

Peter J. Smith, Esq.

Todd K. Hinkley, Esq. (argued)

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

 Attorneys for Appellant

Gino A. Bartolai, Jr., Esq. (argued)

88 North Franklin Street 

Wilkes-Barre, Pennsylvania 18701

 Attorney for Appellee

______________

OPINION OF THE COURT

______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

In light of the “automobile exception” to the usual search 

warrant requirement, it is difficult to pick a worse place to 

conceal evidence of a crime than an automobile. The Supreme 

Court has interpreted—and reinterpreted—the automobile 

exception so expansively that the Court essentially has obviated 
3

the requirement that the government obtain a warrant to search a 

vehicle provided it has probable cause to believe that the vehicle 

contains evidence of a crime. Nevertheless, appellee Joseph 

Donahue made a successful challenge in the District Court to the 

warrantless search of a vehicle that he had been driving but did 

not own because the Court accepted his contention that the 

government did not have probable cause for the search. The 

government appeals from the suppression order entered on 

November 19, 2013.

We trace the immediate background of this case to 

Donahue’s conviction for fraud and related offenses and the 

resulting ten-year custodial sentence that a district court imposed 

on him in the Middle District of Pennsylvania. The court 

directed Donahue to surrender by a given time at a designated 

place to serve this sentence but he did not do so. Consequently, 

the court issued a warrant for his arrest and a short time later 

United States marshals apprehended Donahue in Las Cruces, 

New Mexico, while he was in his son’s Ford Mustang. The 

marshals took possession of the Mustang and, over the next five 

days, personnel from two different federal agencies searched the 

vehicle several times, photographed, and even x-rayed it, all 

without applying for or obtaining a search warrant. Eventually 

an FBI agent found a firearm magazine clip under the Mustang’s 

driver’s seat, a discovery that led to their finding a semiautomatic pistol in a bag that they had seized from the 

Mustang’s trunk. 

Donahue’s failure to surrender and the recovery of the 

pistol resulted in a grand jury returning indictments against him 

in the Middle District of Pennsylvania for failure to surrender 
4

under 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(i) and for firearms 

offenses under 18 U.S.C. §§ 922(g)(1), (2), 922(j), and 

924(a)(2). Donahue filed a motion to suppress evidence found 

in the Mustang and in a hotel room in Las Cruces in which he 

had registered under a false name. The District Court granted 

the motion on the ground that the government lacked probable 

cause for the searches. United States v. Donahue, No. 3:11-cr00033, 2013 WL 6080192, at *6 (M.D. Pa. Nov. 19, 2013). The 

government appealed from the suppression order to the extent 

that the Court suppressed evidence found in the Mustang. The 

government, however, did not appeal from the portion of the 

order suppressing the evidence seized in the hotel room. 

Even though it is clear that the government had the 

opportunity to seek a warrant before searching the Mustang, we 

hold that the automobile exception to the warrant requirement 

obviated its need to do so as the government had probable cause 

for the search of the Mustang and its contents.1 Inasmuch as the 

automobile exception was applicable, there were virtually no 

temporal, physical, or numerical limitations on the search’s 

scope. Thus, the government could make a broad search of the 

Mustang including its contents, even if contained in packages—

and could repeat the search as long as it remained in continuous 

control of the Mustang.2 The government took advantage of this 

 

1As we explain later, there were several searches of the Mustang 

and, because the initial search was lawful, the searches that 

followed also were lawful here. Therefore, we sometimes refer 

to all of the searches as a single search.

2We are not concerned in this opinion with a situation in which 
5

broad authority and, in making its search lawfully uncovered 

evidence that Donahue had committed weapons-related 

offenses. Consequently, the District Court should not have 

suppressed the evidence the government seized in the search. 

Accordingly, we will reverse the order suppressing the evidence 

seized in the search of the Mustang and its contents and we will 

remand the case to the District Court for further proceedings.

 

II. FACTUAL BACKGROUND

Donahue enticed individuals to engage in his business 

ventures so that he could appropriate their identities and make 

unauthorized purchases using their credit. This scheme led to 

his conviction for 16 counts of bank fraud, money laundering, 

accessing an unauthorized device, and making false statements. 

United States v. Donahue, 460 F. App’x 141 (3d Cir. 2012) 

(affirming conviction). On December 3, 2010, the District 

Court sentenced Donahue to a 121-month custodial term and 

ordered him to pay $325,414 in restitution. Id. at 142. The 

Court directed Donahue to surrender by January 4, 2011, at his 

place of confinement at Fort Dix, New Jersey. 

Donahue, however, did not surrender as ordered, and 

consequently the District Court issued a warrant for his arrest on 

January 5, 2011. Instead of surrendering, Donahue drove across 

the country in his son’s red Ford Mustang to Las Cruces in an 

attempt to avoid imprisonment. This attempt came to naught 

 

the government’s control of the vehicle was not continuous.
6

when United States marshals in Scranton, Pennsylvania, in the 

Middle District of Pennsylvania, became aware that Donahue 

might be in Las Cruces and notified authorities there of that 

information. Two weeks after Donahue should have 

surrendered, United States marshals in Las Cruces, assisted by 

New Mexico State University police, arrested him near the 

campus when they saw him exit a hotel in which he had 

registered under an alias and enter his son’s Mustang. United 

States Marshal Steven Archuleta and other officers ordered 

Donahue to exit the Mustang and he did so without incident. 

Archuleta then arrested and searched him, finding about $2,500 

in cash. 

After Archuleta handcuffed Donahue and took him to his 

patrol car, he looked into the Mustang and saw a “very messy” 

interior, J.A. 123, containing, among other items, various maps 

in plain view. Following instructions from his supervisor and a 

deputy United States marshal in Scranton, Archuleta seized the 

Mustang—a step that he acknowledged he “probably” would not 

have taken without those orders. J.A. 155. Inasmuch as 

Archuleta did not know “exactly what [evidence] was needed,” 

J.A. 147, he also entered Donahue’s hotel room to take the trash 

from it and to conduct a superficial search: he glanced around 

the room but did not open any drawers or look into the closets. 

As we have indicated, the government did not have a warrant for 

these searches. 

The government subsequently transferred the Mustang to 

a marshals’ facility in Las Cruces, where the marshals searched 

it pursuant to their inventory policy. Archuleta and two other 

deputy marshals photographed the vehicle “without essentially 
7

moving anything around,” J.A. 124, searched its trunk and cabin 

(including the glove box and other compartments), and removed 

loose items. This process revealed non-incriminating items and 

closed bags, which at that time the marshals did not open. The 

marshals then transferred the vehicle to a public garage and 

placed the bags and other items that they removed in a secure 

holding area. 

The next day, again under instructions from Scranton—

this time from an FBI regional office—an FBI agent in New 

Mexico, Amy Willeke, retrieved the Mustang and drove it to an 

FBI facility. When Willeke reached the FBI facility, she made a 

second inventory search of the Mustang during which she 

discovered a Glock .40 caliber magazine behind the driver’s 

seat. 

After logging her discovery into evidence and having the 

car x-rayed, Willeke directed another agent to obtain Donahue’s 

loose items that the Marshals still possessed so that FBI agents 

could inventory the items and transfer them to Scranton. On 

January 25, 2011, five days after Donahue’s arrest, Archuleta 

and an FBI agent opened and searched the previously seized 

bags and found a Glock semi-automatic pistol. 

III. PROCEDURAL BACKGROUND

The foregoing events led a grand jury in the Middle 

District of Pennsylvania to return an indictment against Donahue

for failure to surrender and for weapons charges. Donahue 
8

subsequently moved in the District Court to suppress all the 

evidence seized from the Mustang and the hotel room, arguing 

that the warrantless searches were unreasonable under the 

Fourth Amendment. After a hearing, the Court granted 

Donahue’s motion by order dated November 19, 2013. 

Donahue, 2013 WL 6080192.

Before addressing the substance of Donahue’s motion, 

the District Court found that he had standing to challenge the 

searches even though he had registered in the hotel under an 

alias and did not own the Mustang. Id. at *3-5. The Court then 

held that the conditions for the automobile exception, which, if 

applicable, would have allowed the government to make a 

warrantless search of the Mustang, had not been met because the 

government lacked probable cause to believe that there was 

contraband in the vehicle. Id. at *6.3 

The government appeals, making only one of the 

arguments it raised in the District Court. Challenging the basis 

for the Court’s order head-on, the government contends that it 

had probable cause to search the Mustang because it was 

reasonable to believe that Donahue would be in possession of 

items that could help him avoid detection and that the 

possession of those items would support a charge that he 

knowingly failed to surrender to serve his sentence. Appellant’s 

br. at 13-14. According to the government, none of the items 

 

3 Although Donahue at oral argument on this appeal emphasized 

that the government did not have a search warrant, in his brief 

he does not contend that it needed a warrant to make the search 

regardless of whether it had probable cause for the search.
9

found in plain view in the Mustang, including the materials that 

were not contraband (such as maps, newspapers and luggage) 

should have been suppressed. That evidence, the argument runs, 

though not contraband, helped establish probable cause for the 

government to conduct a full search of the vehicle. The 

evidence also tended to show that Donahue had planned his 

flight and acted deliberately in violation of the statute, 18 U.S.C. 

§ 3146(a)(2), that criminalizes knowing failures to surrender, 

and that his failure to surrender was not the result of 

circumstances beyond his control. The latter point was 

significant because if it could be shown that circumstances 

beyond Donahue’s control had precluded him from surrendering 

as ordered, Donahue would have had an affirmative defense to 

the failure-to-surrender charge, see 18 U.S.C. § 3146(c). 

Appellant’s br. at 16-17. 

 

IV. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. § 

3231,4and we have jurisdiction under 18 U.S.C. § 3731. “We 

review a district court’s grant of the motion to suppress for 

clear error as to the underlying facts, but exercise plenary review 

as to its legality in light of the court’s properly found facts.” 

United States v. Crandell, 554 F.3d 79, 83 (3d Cir. 2009) 

(internal quotation marks, brackets, and citation omitted). On 

 

4 Donahue does not contend on this appeal that under U.S. 

Const. art. 3, § 2, cl.3, venue for the weapons charges should 

have been in the District of New Mexico. 
10

this appeal we exercise only plenary review, as there is no 

dispute of any material fact. 

V. DISCUSSION

The Fourth Amendment protects people from 

“unreasonable searches and seizures” of their “persons, houses, 

papers, and effects.” U.S. Const. amend. IV. But this protection 

is triggered only if the state invades an area in which the person 

has a “constitutionally protected reasonable expectation of 

privacy.” New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 

965 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 

88 S.Ct. 507, 587 (1967) (Harlan, J., concurring). Thus, a 

defendant moving to suppress evidence seized in a search “bears 

the burden of proving not only that the search . . . was illegal, 

but also that he had a legitimate expectation of privacy” in the 

subject of the search. Rawlings v. Kentucky, 448 U.S. 98, 104, 

100 S.Ct. 2556, 2561 (1980). The latter inquiry turns on two 

specific questions: “(1) whether the individual demonstrated an 

actual or subjective expectation of privacy in the subject of the 

search or seizure; and (2) whether this expectation of privacy is 

objectively justifiable under the circumstances.” Free Speech 

Coal., Inc. v. Att’y Gen., 677 F.3d 519, 543 (3d Cir. 2012). 

After our initial examination of this appeal, we requested 

supplemental briefing on the question of whether Donahue, who 

was a fugitive,5could assert that he had a reasonable expectation 

 

5Although Donahue admits that he was apprehended across the 
11

of privacy in any seized object. We also directed that the briefs 

address the question of whether the government had preserved 

an expectation-of-privacy issue for our review. In this regard 

we note that inmates generally do not possess a legitimate 

expectation of privacy, Hudson v. Palmer, 468 U.S. 517, 525-26,

104 S.Ct. 3194, 3200 (1984), and other courts of appeals have 

held that prisoners do not re-acquire the right to such an 

expectation when they escape from prison, United States v. 

Lucas, 499 F.3d 769, 777 (8th Cir. 2007) (en banc); United 

 

country from New Jersey where he was to surrender to start 

serving his period of incarceration, he insists that he was not a 

“fugitive” even though the District Court had issued a warrant 

for his arrest when he did not surrender. Appellee’s 

supplemental br. at 2-3. He cites a firearms-control statute that 

defines a “fugitive from justice” as someone who “has fled from 

any State to avoid prosecution.” 18 U.S.C. § 921(a)(15). 

Donahue’s logic, it appears, is that he fled the consequences of 

his prosecution (i.e., incarceration), rather than the prosecution 

itself. But see, e.g., United States v. Bailey, 444 U.S. 394, 414 

n.10, 100 S.Ct. 624, 636 n.10 (1980) (“[A]n escaped prisoner is, 

by definition, a fugitive from justice.”). We do not comment on 

whether his interpretation of that particular statute is relevant 

because Donahue’s exact technical status as a fugitive does not 

bear on our probable-cause inquiry. Regardless of what 

circumstances result in an individual being regarded as a 

fugitive under any particular statute, the ordinary meaning of the 

word includes “[a] person who flees or escapes” and a “criminal 

suspect . . . who . . . evades . . . imprisonment.” Black’s Law 

Dictionary (9th ed. 2009) (defining “fugitive”). Consequently, 

we will refer to Donahue as a fugitive. 
12

States v. Roy, 734 F.2d 108, 111-12 (2d Cir. 1984), or when 

they abscond after a mistaken release, United States v. Ward, 

561 F.3d 414, 417-18 (5th Cir. 2009). See United States v. 

Randolph, 210 F. Supp. 2d 586, 591 (E.D. Pa. 2002), aff'd, 80 F. 

App’x 190 (3d Cir. 2003). 

Although Donahue may have forfeited any expectation of 

privacy that he arguably had in the Mustang or its contents after 

he failed to surrender, we decline to address that possibility 

because the government did not raise it in the District Court and 

thus did not preserve it for our review. See Steagald v. United 

States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1646-47 (1981) 

(precluding government from arguing for the first time on 

appeal that defendant lacked a reasonable expectation of 

privacy); see also United States v. Joseph, 730 F.3d 336, 342 (3d 

Cir. 2013). Rather, the government made the expectation-ofprivacy argument in the District Court that Donahue did not 

have an expectation of privacy in the Mustang or its contents or 

in the hotel room in the first place, a contention that, if accepted, 

would have rendered a forfeiture argument moot as Donahue 

would have had nothing to forfeit. The government, however, 

has abandoned even that narrow contention on appeal. 

Given that the government has not advanced, or at least 

preserved for our review, any expectation-of-privacy issue on 

this appeal, we limit our inquiry to the question of whether the 

automobile exception authorized the government to search the 

Mustang without a warrant.6 The automobile exception permits 

 

6 The District Court declined to apply the inventory exception or 

the inevitable discovery rule—conclusions that the government 
13

vehicle searches without a warrant if there is “probable cause to 

believe that the vehicle contains evidence of a crime.” United 

States v. Salmon, 944 F.2d 1106, 1123 (3d Cir. 1991), abrogated 

on other grounds by United States v. Caraballo-Rodriguez, 726 

F.3d 418 (3d Cir. 2013) (en banc). The government bears the 

burden of establishing the applicability of the exception, United 

States v. Herrold, 962 F.2d 1131, 1143 (3d Cir. 1992), by a 

preponderance of the evidence, United States v. Vasey, 834 F.2d 

782, 785 (9th Cir. 1987). 

Although “the scope of the warrantless search authorized 

by [the automobile exception] is no broader and no narrower 

than a magistrate could legitimately authorize by warrant,” 

 

does not challenge on appeal. Donahue, 2013 WL 6080192, at 

*7-11. In addition, although the government alluded to another, 

similar exception in its brief in the District Court, it never fully 

argued here or in that Court that it performed a valid search of 

the car incident to Donahue’s arrest. Case No. 3:11-cr-00033,

Doc. No. 188 at 8. That justification permits vehicle searches 

incident to arrest if it is “reasonable to believe evidence relevant 

to the crime of arrest might be found.” Arizona v. Gant, 556 

U.S. 332, 335, 129 S.Ct. 1710, 1714 (2009). The Gant incidentto-arrest exception is both broader and narrower than the 

automobile exception: it requires a lesser basis for a search than 

a showing of probable cause, United States v. Vinton, 594 F.3d 

14, 25 (D.C. Cir. 2010), but “does not extend to evidence of 

other offenses,” United States v. Polanco, 634 F.3d 39, 42 (1st 

Cir. 2011). Because of the limited scope of the government’s 

arguments, we consider only one potentially relevant exception 

to the search warrant requirement, the automobile exception. 
14

United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173 

(1982), the automobile exception includes two important 

elements specific to that exception: First, “[i]f probable cause 

justifies the search . . . , it justifies the search of every part of the 

vehicle and its contents that may conceal the object of the 

search.” Id., 102 S.Ct. at 2173. Second, probable cause does 

not dissipate after the automobile is immobilized because the 

exception does not include an exigency component. Maryland 

v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 2014 (1999). As a 

result, the government can search an impounded vehicle without 

a warrant even though it has secured the vehicle against the loss 

of evidence and it has the opportunity to obtain a warrant for the 

search. See Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 

3079, 3080-81 (1982); see also United States v. Johns, 469 U.S. 

478, 486-87, 105 S.Ct. 881, 886 (1985) (extending the rule to 

closed packages seized from vehicles). 

The broad sweep of the automobile exception is of 

controlling significance in this case because if we determine, as 

in fact we do, that the government had probable cause to seize 

and search the Mustang, two more conclusions will follow from 

that determination. First, the government was justified in 

opening the bag found in the Mustang’s trunk containing the 

pistol. See, e.g., United States v. Alexander, 573 F.3d 465, 475 

(7th Cir. 2009) (“[U]nder the automobile exception to the 

warrant requirement, [the police officers] were authorized to 

open the bag and seize the handgun.”). Second, the delay 

between the time that the government seized the Mustang and 

the time of the search that uncovered the weapon—five days 

after the government impounded the vehicle—was immaterial. 

See Johns, 469 U.S. at 487-88, 105 S.Ct. at 887 (holding that 
15

warrantless search of containers seized from a vehicle already 

impounded for three days “was reasonable and consistent with 

our precedent involving searches of impounded vehicles”); 

United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994) 

(upholding warrantless search of a vehicle 38 days after it was 

impounded); United States v. McHugh, 769 F.2d 860, 865-66 

(1st Cir. 1985) (approving search seven days after truck’s 

seizure because the Supreme Court declined to impose an 

“arbitrary temporal restriction” on the automobile exception).7 

As a related matter, our analysis does not distinguish 

among the government’s searches starting with Archuleta’s 

search, followed by Willeke’s search, and concluding with the 

opening of the closed bags. We see nothing in the Supreme 

Court’s jurisprudence to indicate that the automobile exception 

may justify only a single search of a seized vehicle. To the 

contrary, the Court has based its reasoning allowing warrantless 

searches of vehicles in part on the diminished expectation of 

privacy in a vehicle, and thus the Court’s reasoning supports the 

conclusion that so long as the government maintains continuous 

control over the vehicle it needs probable cause only for its 

initial search and seizure and that subsequent searches should be 

viewed as part of an ongoing process. United States v. 

Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484 (1977) (“One 

has a lesser expectation of privacy in a motor vehicle because its 

function is transportation and it seldom serves as one’s residence

or as the repository of personal effects . . . . It travels public 

thoroughfares where both its occupants and its contents are in 

 

7 Donahue has not raised any chain-of-custody issue. 
16

plain view.” (quotation marks and citation omitted)). The 

degree of expectation of privacy does not expand during the 

time that the government possesses the vehicle. Indeed, if 

anything, the seizure may lessen it.

Thus, the validity of the search in this case depends 

entirely on whether the government had probable cause when it 

seized the Mustang to believe that it contained evidence of a 

crime. The probable cause inquiry is “commonsense,” 

“practical,” and “nontechnical;” it is based on the totality of the 

circumstances and is judged by the standard of “reasonable and 

prudent men.” Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 

2317, 2328 (1983) (internal quotation marks and citations 

omitted). We evaluate “the events which occurred leading up to 

the . . . search, and then . . . [decide] whether these historical 

facts, viewed from the standpoint of an objectively reasonable 

police officer, amount to . . . probable cause.” Ornelas v. United 

States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62 (1996). 

At bottom, “we deal with probabilities,” Gates, 462 U.S. 

at 231, 103 S.Ct. at 2328. If there was a “fair probability that 

contraband or evidence of a crime” would have been found, 

there was probable cause for the search. Id. at 238, 103 S.Ct. at 

2332. To that end, we conclude that it was reasonable to believe 

that the Mustang contained items showing that Donahue 

“knowingly” failed to surrender in violation of 18 U.S.C. § 

3146(a)(2). After all, the government agents knew that Donahue

had failed to surrender as ordered, and Archuleta explained that, 

based on his extensive experience with fugitives, they are likely 

to have false identification documents, J.A. 109, which 

commonly are found in places where items are “ready and 
17

available . . . to gather up and leave quickly,” such as their cars, 

id. 108-11. 

The District Court took a different approach to the 

probable cause question. It focused on Archuleta’s concession 

at the suppression hearing that he searched the Mustang because 

the marshals in Scranton wanted him to do so. This testimony 

led the Court to suggest that Archuleta did not necessarily 

believe he had probable cause for the search. Donahue, 2013 

WL 6080192, at *7. The Court also concluded that the items in 

plain view, such as maps and newspapers, which Archuleta 

observed when he first looked into the Mustang, were not 

contraband and thus their presence could not have formed the 

basis for probable cause for a search of the vehicle. Id. Finally, 

the Court reasoned that Donahue’s “crime was completed after 

he failed to surrender for service of his sentence” and, “[a]s a 

result, there was not a fair probability that a search of the Ford 

Mustang would reveal contraband or evidence of a crime.” Id. 

We reject each of these conclusions, and do so exercising 

plenary review because the District Court did not ground its 

conclusions on findings of disputed facts. See Ornelas, 517 U.S.

at 699, 116 S.Ct. at 1663; United States v. Harple, 202 F.3d 194, 

196 (3d Cir. 1999). First, we point out that our probable cause 

inquiry “is entirely objective,” Halsey v. Pfeiffer, 750 F.3d 273, 

299 (3d Cir. 2014), and that while subjective belief may be 

relevant in a probable cause inquiry to the extent that it reveals 

facts material to a probable cause determination, Archuleta’s 

testimony with respect to his beliefs was not particularly 

enlightening in this regard. Furthermore, we find nothing in the 

record to support a conclusion that Archuleta conceded he 
18

lacked probable cause to search the Mustang; rather he testified 

that the immediate reason he undertook the search was that he 

was carrying out the instructions sent from Scranton and the 

directive from his supervisor. But his statements about fugitives 

possessing incriminating material is consistent with the 

conclusion that he believed that he had probable cause for the 

search. See J.A. 122 (“I did believe that there could be items in 

the vehicle to show that he was a fugitive and certain contraband 

could be in that vehicle, yes, sir.”). In any event, Archuleta’s 

opinion as to whether he had probable cause for a search does 

not matter because an officer might have probable cause to 

make a search even if he believes to the contrary. See United 

States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991) (“Just as a 

subjective belief by the arresting officer would not establish 

probable cause where none existed, a subjective belief by the 

arresting officer cannot destroy probable cause where it 

exists.”). 

We also reject the District Court’s suggestion that an 

officer could establish that there was probable cause for a search 

only if he believed that the search would reveal contraband. 

Donahue, 2013 WL 6080192, at *7 (concluding that the items 

that Archuleta observed in the Mustang were “not contraband” 

and thus their presence could not support the belief that the 

Mustang “contained contraband”). The courts in making Fourth 

Amendment analyses long have rejected any distinction between 

“evidence of a crime” and “contraband.” See Warden, Md. 

Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 1647 

(1967) (“Nothing in the language of the Fourth Amendment 

supports the distinction between ‘mere evidence’ and 

instrumentalities, fruits of crime, or contraband.”). And as we 
19

have indicated throughout this opinion, the prevailing standard 

for establishing probable cause refers interchangeably to 

probable cause for the presence of both contraband and evidence 

of a crime. 

Finally, we reject any contention that the answer to the 

question of whether a crime has been “completed” (as the 

District Court suggested was the case here when Donahue did 

not surrender as required) or was “continuous” could provide a 

tool helpful in an assessment of whether there was probable 

cause for a search. After all, many, if not most, crimes are 

“completed” by the time of a lawful search during the 

investigation of the crime, and frequently the perpetrator has 

been identified before the search, but investigators nevertheless 

make the search to uncover evidence useful in a prosecution. 

The determination of the point at which the elements 

constituting a crime can be said to have been completed is 

simply not material to a court’s determination of whether there 

was probable cause for a search in furtherance of the 

investigation of the crime. Accordingly, though it is clear from 

the record that the government had compelling evidence that 

Donahue had committed the crime of failing to surrender before 

its agents searched his vehicle, indeed even before its agents 

arrested him, and such evidence might have lessened the need

for a search, the search was lawful. 

VI. CONCLUSION

For the foregoing reasons, we will reverse the District 
20

Court’s November 19, 2013 order suppressing evidence found in

the Ford Mustang. Because the government has not appealed 

from the order to the extent that it suppressed evidence taken 

from Donahue’s hotel room, that aspect of the Court’s order will 

remain undisturbed. We will remand the case to the District 

Court for further proceedings consistent with the opinion.