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
2 1
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
3
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
6
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
7
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
8
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
4
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.
9
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
5
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
6
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
13
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
7
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.
15
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
8
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
17
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
9
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.
10
20
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.
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?