USA v. Mundy

Filing 920100914

Opinion

P R E C E D E N T IA L U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT _____________ N o . 07-4112 _____________ U N I T E D STATES OF AMERICA v. E R IC WAYNE MUNDY, a /k /a BOOB, a /k /a J A M E S FRAZIER Eric Wayne Mundy, Appellant ______________ O n Appeal from the United States District Court f o r the Eastern District of Pennsylvania (C rim in a l No. 06-cr-00540-1) D is tric t Judge: Honorable J. Curtis Joyner A rg u e d January 8, 2009 B e f o re : CHAGARES, HARDIMAN, Circuit Judges, and E L L IS * , District Judge. ____________ (F ile d : September 14, 2010)

The Honorable Thomas Selby Ellis III, Senior District J u d g e for the United States District Court for the Eastern District o f Virginia, sitting by designation.

*

SARAH S. GANNETT (argued) A s s is ta n t Federal Defender D A V ID L. MCCOLGIN A s s is ta n t Federal Defender S u p e rv is in g Appellate Attorney M A U R E E N KEARNEY ROWLEY C h ie f Federal Defender F e d e ra l Community Defender Office f o r the Eastern District of Pennsylvania S u ite 540 West - Curtis Center 6 0 1 Walnut Street P h ila d e lp h ia , PA 19106 C o u n s e l for Appellant P A T R IC K L. MEEHAN U n ite d States Attorney R O B E R T A. ZAUZMER F R A N C IS C. BARBIERI, JR., ESQ. M A R Y KAY COSTELLO, ESQ. (argued) A s s is ta n t United States Attorney C h ief of Appeals A s s is ta n t United States Attorney 6 1 5 Chestnut Street, Suite 1250 P h ila d e lp h ia , PA 19106 C o u n s e l for Appellee ____________ O P IN IO N ____________ C H A G A R E S , Circuit Judge. E ric Wayne Mundy appeals his conviction and sentence for p o ss e ss io n of 500 grams or more of cocaine with intent to d is trib u te , in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and for p o s s e ss io n with intent to distribute 500 grams or more of cocaine in a protected area, in violation of 21 U.S.C. § 860(a). Mundy c o n te n d s that the District Court erroneously admitted evidence that w a s seized during an inventory search of his car, in violation of the F o u rt h Amendment. He also challenges the District Court's a p p lic a tio n of a United States Sentencing Guidelines ("U.S.S.G.")

e n h a n ce m e n t for possession of a controlled substance in a p ro te c te d location with intent to distribute. We will affirm. I. O n August 3, 2004, Mundy was stopped by two P h ila d e lp h ia Highway Patrol officers, James Chabot and George S o to , for making a right turn without using a turn signal and for e x c es s iv e ly dark window tinting, in apparent violation of the motor v e h ic le code. The officers stopped Mundy at 18th Street and H u n t in g Park Avenue in Philadelphia, Pennsylvania, less than 1 ,0 0 0 feet from Gratz High School. The officers approached the v e h ic le and directed Mundy to lower the driver's side window. M u n d y was unable to do so, and the officers instructed him to open h is door instead, which he did. Officer Chabot asked Mundy for h is license, insurance card, and registration. After several minutes o f searching, he was unable to locate documentation for the v e h ic le . The officers then took steps to determine whether the v e h ic le was registered. First, the officers ran a check on the v e h ic le 's public Vehicle Identification Number, and a check of the lic e n se plate number, neither of which produced a record of an o w n e r. The officers then contacted the Bureau of Motor Vehicles (th e "BMV"). The BMV reported no registration information for M u n d y's vehicle. The officers directed Mundy to exit his vehicle, a n d they placed him in their patrol car before radioing for a tow tru c k . O f f ice r Chabot began to search the interior of the vehicle a n d , using a key Mundy provided, opened the locked trunk. The o n ly items in the trunk were a tool kit and a gray plastic bag c o n ta in in g a closed shoebox. Officer Chabot removed the shoebox f ro m the plastic bag and proceeded to open it. Inside, he found a b ro w n paper lunch bag and two clear plastic zip-locked bags filled w ith a substance that appeared to be cocaine. Officer Chabot o p e n e d the paper lunch bag and found four more clear plastic ziplo c k e d bags, also containing a substance that appeared to be c o c ain e . Officer Chabot replaced the items, closed the trunk of the v e h ic le , placed Mundy under arrest, and recovered $1,107 in cash f ro m his person. The officers then notified narcotics agents. They d id not complete a Towing Report listing the items found during 3

th e search. Officer Trappler of the Narcotics Field Unit was assigned to th e investigation. He obtained and executed a search and seizure w a rra n t for Mundy's vehicle and recovered from the trunk, among o th e r things, six clear plastic bags containing a substance suspected to be cocaine. Officer Trappler also recovered from the interior of th e vehicle two plastic jars, a small amount of marijuana, and d o c u m e n ts . The Philadelphia Chemical Laboratory tested the s u b s ta n c e found in the clear plastic bags and confirmed that the s u b s ta n c e was cocaine. The cocaine weighed 746.9 grams. M u n d y was charged with one count of possession with in te n t to distribute 500 grams or more of cocaine, 21 U.S.C. § 8 4 1 (a )(1 ), (b)(1)(B), and one count of possession with intent to d is trib u te cocaine within 1,000 feet of a school zone, 21 U.S.C. § 8 6 0 (a ). Mundy moved to suppress the evidence found during the s e a rc h , arguing that both the stop and the ensuing search violated h is rights under the Fourth Amendment.1 At the hearing on the m o tio n to suppress, Officer Chabot testified that he found the c o ca in e during a routine inventory search of Mundy's car. P h ila d e lp h ia police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police from c la im s of missing property and damage. Mundy argued, in relevant p a rt, that the officers did not have probable cause to search the v e h icle , and that the inventory search policy did not sufficiently reg u late the officers' discretion with respect to closed containers f o u n d in the vehicle. The District Court denied the motion to s u p p re ss , concluding that the search was conducted pursuant to a v a lid inventory search in accordance with departmental policy. M u n d y's case was tried to a jury beginning on July 17, 2007 a n d , on July 19, 2007, the jury returned guilty verdicts against M u n d y on both counts. On October 9, 2007, the District Court s e n te n c ed Mundy on Count Two, the § 860(a) violation,2 to Mundy does not challenge the legality of the stop on a p p e al. Mundy Br. at 10-11. Section 841(a) offenses are lesser-included offenses of § 8 6 0 (a ) offenses. See United States v. Jackson, 443 F.3d 293, 2944
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s e v e n ty-e ig h t months in prison, eight years of supervised release, a fine of $10,000, and a special assessment. Mundy filed a timely n o tice of appeal. 3 II. M u n d y contends that the District Court erred in admitting in to evidence the cocaine seized during a warrantless inventory s e a rc h of his car. In reviewing the denial of a motion to suppress a lle g in g violations of the Fourth Amendment, we review factual f in d in g s for clear error and exercise plenary review over the D is tric t Court's legal conclusions. United States v. Williams, 417 F .3 d 373, 376 (3d Cir. 2005). "Because the basis for denial of the m o tio n was a determination that the search that produced the e v id e n c e was valid, we must review the propriety of the w a rra n tle ss search that led to the discovery of incriminating e v id e n c e." Id. A. T h e Supreme Court has recognized that "[t]he touchstone of th e Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U .S . 248, 250 (1991). Warrantless searches and seizures are p re su m p tiv e ly unreasonable and are therefore prohibited under the F o u r th Amendment, unless an exception applies. California v. A c e v e d o , 500 U.S. 565, 580 (1991) ("It remains a cardinal principle th a t searches conducted outside the judicial process, without prior a p p ro v a l by judge or magistrate, are per se unreasonable under the F o u r th Amendment ­ subject only to a few specifically established a n d well-delineated exceptions." (quotation marks omitted)); see a ls o Katz v. United States, 389 U.S. 347, 357 (1967). "Such e x c e p tio n s are based on the Supreme Court's determination that a p articu lar search is reasonable, that is, that the government's leg itim a te interests in the search outweigh the individual's legitimate 95 (3d Cir. 2006). The District Court had jurisdiction over the underlying c rim in a l prosecution pursuant to 18 U.S.C. § 3231. This Court has ju ris d ic tio n under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 5
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e x p e cta tio n of privacy in the object of the search." United States v. S alm o n , 944 F.2d 1106, 1120 (3d Cir. 1991). T h e Supreme Court has determined that one exception to the w a rra n t requirement is for inventory searches of lawfully seized a u to m o b iles . Colorado v. Bertine, 479 U.S. 367, 371 (1987); Illinois v . Lafayette, 462 U.S. 640, 643 (1983) ("[T]he inventory search co n stitu tes a well-defined exception to the warrant requirement."); S o u th Dakota v. Opperman, 428 U.S. 364, 372 (1976) ("[ I]n v en to ries pursuant to standard police procedures are r e a s o n a b le ." ) . Inventory procedures serve three "strong g o v e rn m e n tal interests": "[1] to protect an owner's property while it is in the custody of the police, [2] to insure against claims of lost, s to le n , or vandalized property, and [3] to guard the police from d a n g e r." Bertine, 479 U.S. at 372. L a w f u l inventory searches must be "conducted according to s ta n d a rd iz e d criteria" or established routine, consistent with the p u rp o se of a non-investigative search. Id. at 374 n.6. This re q u ire m e n t "tend[s] to ensure that the intrusion w[ill] be limited in s c o p e to the extent necessary to carry out the caretaking function." O p p e rm a n , 428 U.S. at 375. The criteria or routine must limit an o f f ic e r's discretion in two ways: first, as to whether to search the v e h ic le , and second, as to the scope of an inventory search. Salmon, 9 4 4 F.2d at 1120-21 (citing Florida v. Wells, 495 U.S. 1, 4-5 (1990); B ertin e, 479 U.S. at 374 & n.6, 375-76). These limitations ensure t h a t officers performing these caretaking functions are "`not [] a llo w e d so much latitude that inventory searches are turned into a p u rp o sef u l and general means of discovering evidence of a crime.'" Id . at 1120 (quoting Wells, 495 U.S. at 4 (quotation marks omitted)); s e e also Wells, 495 U.S. at 4 ("[A]n inventory search must not be a ru s e for a general rummaging in order to discover incriminating e v id e n c e ." ). Mundy argues that the cocaine seized from the shoebox in the tru n k of his car should have been suppressed because it was "the fru it of an illegal inventory search." Mundy Br. at 13-14. In p a rtic u la r, Mundy contends that although the Philadelphia Police D e p a rtm e n t did have a policy on inventory searches, the policy did

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n o t address explicitly how closed containers were to be treated. S e v e ra l decisions set the background for our analysis of this issue. In Colorado v. Bertine, the Supreme Court considered w h e th e r, and under what circumstances, police may inventory the c o n ten ts of closed containers found in vehicles lawfully taken into th e ir custody. During the inventory search of Bertine's impounded v e h ic le , an investigating officer opened a closed backpack, a nylon b a g within the backpack, and closed metal canisters located inside th e nylon bag. 479 U.S. at 369. The officer found controlled s u b s ta n c es , cocaine paraphernalia, and a large amount of cash in the ca n isters. Id. Reversing suppression of this evidence, the Court a c k n o w led g e d that "reasonable police regulations relating to in v e n to ry procedures administered in good faith satisfy the Fourth A m e n d m e n t." Id. at 374. The Court rejected the suggestion that p o lic e , before inventorying a container, "weigh the strength of the in d iv id u a l's privacy interest in the container against the possibility th a t the container might serve as a repository for dangerous or v a lu a b le items." Id. Rather, the Court observed, "[a] single familiar s ta n d a rd is essential to guide police officers, who have only limited tim e and expertise to reflect on and balance the social and individual in te re sts involved in the circumstances they confront." Id. at 375 (q u o ta tio n marks omitted, alteration in original). The Bertine Court added that nothing in its jurisprudence " p ro h ib its the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of s o m e th in g other than suspicion of criminal activity." Id. at 375. T h e Court held that there was no showing that the inventory search w a s "for the sole purpose of investigation." Id. at 372. Further, the C o u rt noted that standard procedures governed the inventory search a n d that those procedures "mandated the opening of closed c o n ta in e rs and the listing of their contents." Id. at 374 n.6. A c c o rd in g ly, the Court held that the Fourth Amendment did not p ro h ib it use of the evidence found during the inventory search of B e rtin e 's vehicle. In Florida v. Wells, the Supreme Court addressed how much d is c re tio n law enforcement officers may be afforded to open closed c o n ta in e rs under inventory search policies for Fourth Amendment

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p u rp o ses. The Court made clear that while law enforcement officers m u st not have "uncanalized discretion" in conducting inventory s e a rc h e s, "there is no reason to insist that they be conducted in a to ta lly mechanical `all or nothing' fashion." 495 U.S. at 4. Noting th e important purposes of inventory searches, the Court recognized th a t law enforcement officers "may be allowed sufficient latitude to d e te rm in e whether a particular container should or should not be o p e n e d in light of the nature of the search and the characteristics of th e container itself." Id. The Court further explained that "while p o licie s of opening all or no containers are unquestionably p e rm is s ib le , it would be equally permissible, for example, to allow th e opening of closed containers whose contents officers determine th e y are unable to ascertain from examining the containers' e x te rio rs ." Id. Concluding, the Court observed that "[t]he a llo w a n c e of the exercise of judgment based on concerns related to th e purposes of an inventory search does not violate the Fourth A m e n d m e n t." Id. Under the facts presented, the Wells Court held th a t marijuana discovered after police forced open a locked suitcase lo c a ted in the trunk of an impounded vehicle was properly s u p p re ss e d because the police department had "no policy whatever w ith respect to the opening of closed containers encountered during a n inventory search." Id. at 4-5. Following Bertine and Wells, this Court in United States v. S a lm o n considered whether a weapon found in a gym bag in the tru n k of a vehicle pursuant to a purported inventory search should b e suppressed. 944 F.2d at 1118. We began our analysis of the iss u e by recognizing that "pre-existing criteria or routine must limit a n officer's discretion regarding the scope of an inventory search, p a rtic u la rly with respect to the treatment of closed containers." S a lm o n , 944 F.2d at 1120 (emphasis in original). We noted that a lth o u g h there was some evidence that the local government had a p o licy that all vehicles seized for forfeiture (as in Bertine) were s e a rc h e d , we concluded that "as in Wells, the government did not p o in t to any standardized criteria or routine governing the scope of in v e n to ry searches." Id. at 1121 (emphasis in original). As a result o f "the lack of evidence of any criteria or established routine re g a rd in g the scope of an inventory search," we concluded that the o f f ic e rs had exercised "impermissible discretion regarding the scope

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o f the inventory," and we accordingly held that the inventory search w a s unlawful. Id.

B. During a lawful stop based on suspected traffic violations, P h ilad e lp h ia Highway Patrol officers determined that Mundy was in v io la tio n of § 1301(a) of the Pennsylvania vehicle code, which p ro h ib its driving an unregistered vehicle. 75 Pa. Cons. Stat. § 1 3 0 1 (a )(1 ). Under Pennsylvania law, if an officer determines that a driver is operating a vehicle in violation of, inter alia, § 1301(a), th a t vehicle may be impounded. Id. § 6309.2 The Philadelphia P o lic e Department has issued guidelines ­ known as Live Stop (the " P P D Live Stop Policy") ­ that implement the impoundment p ro v isio n s of the Pennsylvania Vehicle Code, § 6309.2. Appendix (" A p p ." ) 44.4 Once it is determined that the driver is in violation of § 6309.2, the PPD Live Stop Policy directs an investigating officer to inventory the contents of the vehicle taken into custody. App. 4546. Mundy does not challenge the investigating officers' decision
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The PPD Live Stop Policy provides, in relevant part:

[ T ]h e investigating officer[] shall . . . : 1 . Have the operator and occupants exit the vehicle and remain on lo c a tio n . . . . 2 . Complete the Towing Report by conducting a vehicle inventory d e sc rib in g any damage and/or missing equipment, personal p ro p e rty of value left in the vehicle by the operator/occupants[,] in c lu d in g the trunk area if accessible. N O T E : No locked areas, including the trunk area, will be f o rc e d open while conducting an inventory. A p p . 46.

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to conduct an inventory search following the seizure of his vehicle. In s te a d , he argues that the officers exceeded their authority when th e y searched closed containers located in the trunk of the vehicle. H e asserts that this case hews closely to Salmon and Wells, claiming th a t the PPD Live Stop Policy does not regulate inventory searches o f closed containers. O ff icer Chabot testified at trial that he searched Mundy's v e h ic le for "valuable items" and other kinds of "personal effects" b e f o re it was impounded, in accordance with the PPD Live Stop P o lic y. App. 92. The terms of that policy require the investigating o f f ic e r to "[c]omplete the Towing Report by conducting a vehicle in v e n to ry describing any . . . personal property of value left in the v e h icle by the operator/occupants[,] including the trunk area if a c c e s s ib le ." App. 46. The PPD Live Stop Policy also limits the s c o p e of the inventory search, instructing that "[n]o locked areas, i n c lu d in g the trunk area, will be forced open while conducting an in v e n to ry." Id.5 M u n d y contends that, because the PPD Live Stop Policy does n o t specifically mention the opening of closed containers, officers m ay not search closed containers found during a vehicle inventory se a rc h . We disagree. Inventory searches are not "totally m e c h a n ica l" procedures. Wells, 495 U.S. at 4. Standardized criteria o r routine may adequately regulate the opening of closed containers d is c o v e re d during inventory searches without using the words " c lo se d container" or other equivalent terms. We decline to create a rule of constitutional dimension that requires an inventory search p ro to c o l to predict every conceivable scenario an officer may "The existence of . . . a valid [standardized inventory s e a rc h ] procedure may be proven by reference to either written ru le s and regulations or testimony regarding standard practices." U n ite d States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994) (citations o m itted ); see also United States v. Como, 53 F.3d 87, 92 (5th Cir. 1 9 9 5 ) (upholding inventory search in the absence of a written p o lic y, explaining that "testimony regarding reliance on s ta n d a rd iz e d procedures is sufficient"). Here, both the written PPD L iv e Stop Policy and Officer Chabot's testimony established the s ta n d a rd departmental procedure regulating inventory searches. 10
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h a p p e n upon while conducting an inventory search, and to provide a formulaic directive for each and every one. Such a requirement w o u ld not only prove unworkable, but would run contrary to the le tte r and spirit of Bertine and Wells. See United States v. Andrews, 2 2 F.3d 1328, 1336 (5th Cir. 1994) (upholding inventory search in v o lv in g an officer's reading of incriminating evidence inside a n o te b o o k recovered pursuant to an inventory search, reasoning that n eith er Bertine nor Wells "requires a law enforcement agency's in v e n to ry policy to address specifically the steps that an officer s h o u ld take upon encountering a closed container"). Instead, "reasonable police regulations relating to inventory p ro c e d u re s," Bertine, 479 U.S. at 374, mean that "[t]he policy or p ra c tic e " is "designed to produce an inventory," Wells, 495 U.S. at 4 , and that the criteria do not allow officers "so much latitude that in v e n to ry searches are turned into `a purposeful and general means o f discovering evidence of a crime.'" Id. (quoting Bertine, 479 U.S. a t 376 (Blackmun, J., concurring)).6 Those principles are satisfied Accord United States v. Matthews, 591 F.3d 230, 238 (4th C ir. 2009) ("[W]ithin the constraints of the [applicable] policy, o f f ic e rs may exercise discretion in deciding whether or not to open a particular container."); United States v. Hall, 497 F.3d 846, 852 (8 th Cir. 2007) ("That the Policy allows some discretion . . . does n o t make the inventory search unconstitutional."); United States v. T a c k ett, 486 F.3d 230, 232 (6th Cir. 2007) ("[O]fficers may e x e r c is e some judgment based on concerns related to the purpose o f an inventory search; for example, they may decide to open p a rtic u la r containers if they cannot determine the contents." (q u o ta tio n marks omitted)); United States v. Thompson, 29 F.3d 6 2 , 65-66 (2d Cir. 1994) ("Although the [established inventory s e a rc h ] procedure must not be a pretext `for a general rummaging in order to discover incriminating evidence,' it may allow the s e a rc h in g officers sufficient discretion in deciding whether or not to open a specific container." (quoting Wells, 495 U.S. at 4)); U n ite d States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991) ("The p o lic e department's inventory procedures can allow an officer `la titu d e to determine whether a particular container should or s h o u ld not be opened in light of the nature of the search and c h a ra c te ris tic s of the container itself.'" (quoting Wells, 495 U.S. at 11
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h e re . The PPD Live Stop Policy explicitly sets out its objectives, n a m e ly, to protect the owner's property and shield the officers from c la im s of loss or damage. The Policy also sufficiently regulates the sc o p e of the search, directing investigating officers to search all a c ce ss ib le areas of the vehicle (including the trunk), provided that th e y are not forced open, to determine if they contain "any . . . p e rs o n a l property of value," or other effects. App. 46. A search of u n lo c k e d containers that may hold such property or effects, as h ap p en ed here, falls comfortably within the PPD Live Stop Policy's g e n e ra l directive, and therefore does not violate the Fourth A m e n d m e n t. See Wells, 495 U.S. at 4. M u n d y's reliance on Wells and Salmon is misplaced. In each o f those cases, the courts found that there was no standard policy or p ro c e d u re governing the scope of inventory searches. In Wells, the c lo s e d container at issue was a locked suitcase that was forced open a t the direction of a state trooper, and there was "no policy whatever w ith respect to the opening of closed containers." 495 U.S. at 4. T h e Court concluded that the search of the suitcase was unlawful, e x p la in in g that officers may not be given total discretion to decide w h e t h e r to open a closed container found during an inventory s e a rc h . Id. at 4-5. Similarly, in Salmon, the complete absence of a re le v a n t inventory search protocol underscored our decision. In d e e d , we explained that the Government had failed to "point to an y standardized criteria or routine governing the scope of inventory s e a rc h e s." Salmon, 944 F.2d at 1121 (emphasis omitted). Wells and S a lm o n , therefore, exemplify "a prime danger of insufficiently re g u la te d inventory searches: police may use the excuse of an `in v e n to r y search' as a pretext for broad searches of vehicles and th e ir contents." Wells, 495 U.S. at 5 (Brennan, J., concurring). In the present case, by contrast, the PPD Live Stop Policy re stric te d Officer Chabot from forcing open the trunk or any other 1)); United States v. Judge, 864 F.2d 1144, 1145 (5th Cir. 1989) (n o tin g that "Bertine does not condemn all forms of police d is c re tio n , but only `evidentiary' discretion which is exercised on th e basis of suspicion of criminal activity"). 12

lo c k e d areas of the vehicle. The Policy instructed him to inventory, in te r alia, "any . . . personal property of value left in the vehicle by th e operator/occupants[,] including the trunk area if accessible." A p p . 46. By specifically authorizing the search of the trunk "if a ccessib le," and by forbidding any "locked areas, including the trunk a re a ," from being "forced open," the Policy: (1) authorized Officer C h a b o t to inventory "any personal property of value" left in the tru n k once Mundy provided the keys to it; and (2) simultaneously c u rta ile d his authority to embark on a generalized search for in c id e n ts of crime. Though the PPD Live Stop Policy does not c o n tain magic words relating specifically to closed containers, its re f e re n c e to "any . . . personal property of value" sufficiently reg u lated the scope of a permissible inventory search, and therefore a u th o riz e d the opening of the shoebox in Mundy's trunk to d e te rm in e if such property was contained therein. Officer Chabot a c te d in accordance with standardized criteria; there is no evidence th a t he exercised unbridled discretion in choosing to open the u n lo c k e d container. Our sister courts of appeals have reviewed questions similar to that posed here. In United States v. Wilson, 938 F.2d 785 (7th C ir. 1991), the Court of Appeals for the Seventh Circuit held that the in v e n to ry search policy governing the Illinois state police "clearly e sta b lis h e [ d ] the policy that closed containers can be opened," id. at 7 9 0 , even though the policy did not use the "buzz words `closed c o n ta in e r,'" id. at 789. The court held that the policy's requirement th a t the investigating officer examine and inventory the "contents" o f the vehicle, together with the direction to restrict the search to a re a s where owners or operators would normally place personal p ro p e rty, sufficiently limited the officers' discretion. Id. at 790; see also United States v. Richardson, 121 F.3d 1051, 1055-56 (7th Cir. 1 9 9 7 ) (reaffirming the holding in Wilson). In United States v. Thompson, 29 F.3d 62 (2d Cir. 1994), the C o u rt of Appeals for the Second Circuit considered facts that closely p a ra lle l this case. There, the court reviewed an inventory search of a locked briefcase (to which the defendant had provided the key) re c o v ere d from an impounded vehicle. Id. at 64. At issue was w h e th e r the applicable inventory search regulations provided

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s u f f ic ie n tly standardized criteria to the officers conducting the in v e n to ry search. Id. at 65. The regulations stated in pertinent part: " A member of the Department who impounds any motor vehicle s h a ll inventory the contents of the vehicle and record the results. . . . It is not necessary to enter locked portions of any vehicle to c o n d u c t an inventory search when keys to enter are not available." Id . at 66 (emphases in original). The court rejected the argument th a t police officers "used impermissible discretion in conducting the in v e n t o ry search because the regulations refer to `locked portions' a n d do not specifically mention the term `closed containers.'" Id. C itin g Wilson, the court explained that "[t]he terms `contents' and `lo c k e d portions' in the regulations provide sufficient elucidation to s a tis f y the constitutional requirements for an inventory search of a c lo s e d container when keys are available." Id.7 M o re recently, in United States v. Matthews, 591 F.3d 230 (4 th Cir. 2009), an officer conducting an inventory search of an i m p o u n d e d vehicle discovered, inter alia, a substantial quantity of p a c k ag e d cocaine in a closed suitcase recovered from the trunk. The d e f e n d a n t challenged the inventory search on the basis that the o f f ic e r "could not have followed standardized criteria because the D e p a rtm e n t's policy does not specify how an officer should handle c lo se d containers." Id. at 236. The Court of Appeals for the Fourth C irc u it cited as authority Wilson, Richardson, and Thompson, and h e ld that "[a] police department's policy on inventory searches does n o t have to specifically use the phrase `closed containers' to permit th e search and seizure of such items." Id. The court rejected the d e f e n d a n t 's challenge to the inventory search, reasoning as follows: L ik e the policies discussed in T h o m p s o n , Wilson, and Richardson, th e Department's policy, though not See also State v. Mesa, 717 N.E.2d 329, 334 (Ohio 1999) (u p h o ld in g an inventory search where departmental policy " re q u ire [ d ] that `open compartments of the vehicle are to be sea rch ed [, ]' and that `locked compartments shall not be opened,'" a n d concluding that "[b]y its very terms, this language does not p ro h ib it officers from searching closed compartments[,]" but only p ro h ib its opening those "that are locked"). 14
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e x p lic itly using the phrase "closed c o n ta in e rs ," sufficiently regulates the o p e n in g of such containers to provide sta n d a rd ize d criteria to justify Deputy C la r k 's search of Matthews's bags. T h a t policy requires, in relevant part, f o r "[a] complete inventory [to] be ta k e n on all impounded or confiscated v e h ic le s including the interior, glove c o m p a r tm e n t and trunk." Only by o p e n in g all closed containers could a p o lice officer effectively comply with th is requirement for a "complete in v e n to ry." . . . The circumstances in this case represent t h e typical situation in which the n e c e s s ity of an inventory search arises. A s the policy in question reflects, the p u rp o se of conducting the inventory se a rc h is to protect the owner's property w h ile in the custody of the police from " lo s s or theft." Only by performing a f u ll inventory of the car ­ which in c l u d e s opening closed containers ­ c o u ld an officer identify all the v e h icle 's valuables and effectively s e c u re them. Accordingly, we agree w ith the district court that because the D e p a rtm e n t's policy authorizes the opening of closed containers e n c o u n te re d during an inventory search a n d Deputy Clark adhered to that p o licy, Deputy Clark's search falls w i th in the inventory search exception a n d thus does not violate the Fourth A m e n d m e n t.

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Id . at 237-38 (citations omitted).8 F o r the reasons we have articulated, we agree with these co u rts. The inventory search protocols at issue in those cases are c o n stitu tio n a lly indistinguishable from the PPD Live Stop Policy th a t Mundy challenges here. We hold that the Policy provided s u f f ic ie n tly standardized criteria regulating the scope of a p e rm is s ib le inventory search ­ including searches of closed c o n ta in e rs ­ and that Officer Chabot's search adequately complied w ith those criteria. M u n d y also argues that the officers' reliance on the PPD Live S to p Policy was a pretext for an investigatory search because the o ff icers did not complete a Towing Report and because the officers b e lie v e d that they would find narcotics in the vehicle. First, the f a ilu re of the investigating officers to complete a Towing Report d o e s not demonstrate that the officers conducted the inventory s e a rc h as pretext or in bad faith. The record indicates that Officer T ra p p le r produced an inventory of items seized from the vehicle on p ro p e rty receipts, including the narcotics, but that the officers did n o t complete a Towing Report describing personal effects left in the v e h ic le . App. 61. Although compliance with procedures "tends to ensure the in tru s io n is limited to carrying out the government's caretaking f u n c tio n ," failure to follow through with standard procedures does n o t necessarily render the search unreasonable. United States v. M a yf ie ld , 161 F.3d 1143, 1145 (8th Cir. 1998); see also Whren v. U n ite d States, 517 U.S. 806, 816 (1996) ("[I]t is a long leap from the p ro p o s itio n that following regular procedures is some evidence of la c k of pretext to the proposition that failure to follow regular p ro c e d u re s proves (or is an operational substitute for) pretext." (e m p h a s is in original)); United States v. Trullo, 790 F.2d 205, 206 (1 s t Cir. 1986) ("We will not hold that the officer's failure, Notably, the Matthews court distinguished our decision in S a lm o n , emphasizing ­ as we have above ­ that there, "the law en f o rc e m en t agency had `no written policy regarding inventory s e a rc h procedures,' much less one addressing closed containers." M atth ew s, 591 F.3d at 236 n.8 (quoting Salmon, 944 F.2d at 1121). 16
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t e c h n ic a lly, to follow the inventory form procedures for valuables m e a n t [that] it was not an inventory search."). The search in this c a se was undertaken pursuant to established procedures and s ta n d a rd i z e d criteria designed to produce an inventory. After d isco v erin g controlled substances, the officers ended the inventory a n d called in narcotics investigators. "This change of plans does not re n d e r the search unreasonable . . . ." United States v. Woolbright, 8 3 1 F.2d 1390, 1394 (8th Cir. 1987). Mundy also argues that the officers were motivated by the e x p e cta ti o n of finding criminal evidence in his vehicle. Officer C h a b o t testified that, while Mundy was looking for his registration a n d insurance information, he observed what he believed to be a s m a ll marijuana bud on the driver's side of the car. App. 91, 95. O f f ic e r Soto testified that he noticed two vials "normally used for n a rc o tics " in the center console. App. 100. In addition, both O f f ic e rs Chabot and Soto testified that they detected a strong odor in the vehicle, which they identified as cocaine based on anecdotal e v id e n c e, including its distinctive scent. App. 95-96, 100. Such in itia l observations alone do not suggest that the subsequent in v e n to ry search was conducted in bad faith. See United States v. L o p e z , 547 F.3d 364, 372 (2d Cir. 2008). As the court reasoned in Lopez, T h e Fourth Amendment does not p e r m it police officers to disguise w a rra n tle ss , investigative searches as in v e n to ry searches. However, the S u p r e m e Court has not required an a b se n c e of expectation of finding c rim in a l evidence as a prerequisite to a la w f u l inventory search. When o f f i c e r s , following standardized in v e n to ry procedures, seize, impound, a n d search a car in circumstances that s u g g e st a probability of discovering c rim in a l evidence, the officers will i n e v i ta b ly be motivated in part by c rim in a l investigative objectives. Such

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m otivatio n , however, cannot reasonably d is q u a l if y an inventory search that is perform ed under standardized p ro c e d u re s for legitimate custodial p u rp o s e s . Id. (citations omitted). The District Court in the present case found that the officers " to o k the normal steps one would take" to search the vehicle prior to impoundment. App. 64. We see no error in this finding, and have n o reason to doubt that the Supreme Court's standards for a w a rra n tle ss inventory search were satisfied. * * * *

W e conclude that the search here did not violate the Fourth A m e n d m e n t. The PPD Live Stop Policy adequately regulated the s c o p e of the inventory search with respect to closed containers, and th e search of Mundy's vehicle, conducted in accordance with those s ta n d a rd iz e d procedures, was reasonable. III. M u n d y next argues that the District Court erred in applying a two-level enhancement to his U.S.S.G. offense level pursuant to U .S .S .G . § 2D1.2(a)(1). We engage in plenary review of the District C o u rt's legal interpretation of the Guidelines. United States v. A q u in o , 555 F.3d 124, 127 n.5 (3d Cir. 2009). S e c tio n 2D1.2 provided for a two-level enhancement to the G u id e lin e s offense level for, inter alia, offenses committed in v io la tio n of 21 U.S.C. § 860. See U.S.S.G. § 1B1.2(a) (requiring re f ere n c e "to the Statutory Index (Appendix A) to determine the C h a p te r Two offense guideline"); U.S.S.G. App. A (2007) (making § 2D1.2 enhancement applicable to offenses committed under 21 U .S .C . § 860).9 Mundy was convicted of possession of more than Citing U.S.S.G. § 1B1.2(a), Mundy argues that the " G u id e lin e s require that the district court apply the guideline 18
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5 0 0 grams of cocaine within 1,000 feet of a school, in violation of 2 1 U.S.C. § 860(a). The District Court, therefore, applied the twolev e l enhancement. M u n d y makes two arguments as to why § 2D1.2(a)(1) n e v e rth e le ss should be read not to apply to his possession with intent to distribute conviction, neither of which we find persuasive. First, M u n d y argues that § 2D1.2(a)(1) does not apply because there is no e v id e n c e that he intended to distribute any drugs within 1,000 feet o f a school (though he did possess them there). He argues s p e c i f i c a l l y: It is uncontested that Mr. Mundy did n o t choose to stop in a protected lo c a tio n ; he was ordered to stop within 1 ,0 0 0 feet of a school by police officers w h o observed his alleged commission o f moving violations. But for the tra f fic stop, Mr. Mundy would have c o n tin u e d through the school zone and o n to his ultimate destination. M u n d y Br. at 27. "[I]mportant public policy reasons," Mundy c o n te n d s, dictate that the Guidelines treat possessors who do intend to distribute within a protected area different from possessors who in te n d to distribute elsewhere. Id. at 25. W e previously addressed a very similar issue ­ whether 21 U.S.C. § 860 (which triggers the § 2D1.2(a)(1) enhancement at issue here) a p p lie s to a possessor who did not intend to distribute in a protected are a ­ in United States v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992). In Rodriguez, the defendant argued that § 860 does not apply to a assigned to each statute of conviction in Appendix A, not in the c o m m e n tar y," and that "Appendix A lists § 2D1.1 as the applicable g u id e lin e in § 860(a) cases." Mundy Reply Br. at 10. Mundy m is re a d s Appendix A. Section 2D1.2 applies to violations of 21 U .S .C . § 860(a). See U.S.S.G. App. A (2007). Section 2D1.1 a p p lie s to violations of 21 U.S.C. § 860a ­ a statute different from § 860. 19

d e f en d a n t who possesses drugs within 1,000 feet of a school but in te n d s to distribute them elsewhere. 961 F.2d at 1091. After re v ie w in g the plain language of the statute, as well as the legislative h is to ry, we concluded that § 860 applies to a defendant who p o s s e ss e s drugs within 1,000 feet of a school, even if the defendant in te n d s to distribute them elsewhere. Id. at 1092. We rejected the a rg u m e n t that the statute should not apply to possessors who do not e v id e n c e an intent to distribute in a protected area, such as "a d e f en d a n t who speeds by a school in a train or other vehicle on the w a y to a narcotics sale." Id. at 1094. Indulging this argument, we re a so n e d , "would make the statute inapplicable in several situations in which the mere possession of sizeable quantities of drugs near a s c h o o l would create an increased risk for students." Id. Some of th o s e risks include increased chance of violence, as well as loss, th e f t, or abandonment of the drugs. Id.1 0 Our reasoning in R o d rig u e z , which led us to the conclusion that § 860 applies to p o s s e ss o rs who do not intend to distribute in a protected area, s u g g e sts that § 2D1.2(a)(1) ­ a sentencing enhancement triggered by a violation of § 860 ­ applies to those possessors as well. Thus, M u n d y' s first argument fails. M u n d y's second argument fares no better. He points to an A p p lica tio n Note to § 2D1.2, which provided, in relevant part, "This g u id e lin e applies only in a case in which the defendant is convicted o f a statutory violation of drug trafficking in a protected location." U .S .S .G . § 2D1.2 cmt. n.1 (emphasis added). "Drug trafficking" is n o t a defined term for purposes of § 2D1.2. Mundy contends that p o s s e ss io n with intent to distribute does not constitute "drug tra f fic k in g " because "drug trafficking" entails the actual sale or d is trib u tio n of drugs, and therefore does not trigger the § 2 D 1 .2 (a )(1 ) enhancement. In support of his contention, Mundy n o te s that Congress, for the purposes of 21 U.S.C. § 862, defines " d ru g traffick[ing]" to require actual distribution. See 21 U.S.C. § 8 6 2 . Mundy posits that the phrase should carry that same meaning We also noted that the statute may apply to a defendant w h o intends to sell drugs in a protected area, even when there is no in c re a se d risk to students, such as when school is not in session. Id . at 1094-95.
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w h e n used in the Application Note to U.S.S.G. § 2D1.2, an e n h a n ce m e n t triggered by the violation of § 862's neighbor, § 860. M u n d y Br. at 25. Mundy's argument is unpersuasive in light of the C o m m e n ta ry to § 2D1.2's unequivocal instruction that § 2D1.2(a)(1) a p p lie s to drug offenses ­ like Mundy's ­ committed in violation of § 860. See U.S.S.G. § 2D1.2 cmt. Thus, Mundy's second argument f a ils . W e hold that the District Court did not err in applying a twolev e l enhancement to Mundy's Guidelines offense level under § 2 D 1 .2 ( a ) ( 1 ) . IV . F o r the reasons stated above, we will affirm the judgment of c o n v ic tio n and sentence of the District Court.

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