United States v. David Allen

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Raymond W. Gruender AUTHORING JUDGE:Diana E. Murphy (PUBLISHED) [4027443] [12-2613]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2613
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
David Brian Allen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: March 15, 2013
Filed: April 22, 2013
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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
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MURPHY, Circuit Judge.
During an arrest of three individuals for attempting to pass counterfeit checks
in Bryant, Arkansas, officers found a receipt for a room at the Comfort Inn Hotel in
Little Rock. After Little Rock police officer Rusty Rothwell received this
information, he went with his partner Fred Lee to the Comfort Inn to investigate and
conduct surveillance. They discovered that David Allen had rented two rooms in the
hotel, including the one for which the receipt had been recovered in Bryant. Allen

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was later observed disposing of counterfeit checks in the hotel parking lot. He
subsequently was arrested, and his car and luggage cart were searched. Thereafter
Allen was indicted for conspiracy to make, utter, and possess counterfeit securities in
violation of 18 U.S.C. §§ 371 and 513. His motion to suppress was denied by the
district court,1 and Allen then entered a conditional guilty plea, reserving the right to
appeal the denial of his suppression motion. He now appeals, alleging Fourth
Amendment violations. We affirm.
I.
After Rothwell and Lee went to the Comfort Inn, they spoke to the desk clerk
who informed them that the room listed on the receipt recovered in Bryant had been
rented to a man who had identified himself as "Darryl Brown." Rothwell and Lee
returned to their vehicle in the hotel parking lot and "sat there, just kind of talking it
over" because they did not think they had "enough probable cause . . . to make
contact." While the two officers were talking, they saw an unknown man leave the
hotel with a white plastic bag, walk behind the building, and return to view within
seconds without the bag. The officers sat in their car for a few more minutes and then
"decided to go in and make contact with the clerk once more and let him know that
[they] were going to leave." At the hotel desk the clerk told them that the man they
had seen abandon the plastic bag was Darryl Brown. Officer Lee then went outside
to locate the small white bag he had seen Darryl Brown discard and found it contained
torn up checks.
Rothwell and Lee then went back to the station where they confirmed that the
checks recovered from the plastic bag matched those found during the arrest of the
1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendation of the
Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District
of Arkansas.
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suspected coconspirators in Bryant, Arkansas. Rothwell later explained that "the
names and the businesses [from the torn up check fragments] were matching up with
the ones they had confiscated down in Bryant." While Lee was preparing an
application for a search warrant, the desk clerk called to inform the officers that Darryl
Brown had indicated he was planning to check out of the hotel.
Rothwell and Lee returned to the hotel where uniformed officers met them. In
the parking lot they saw a man beside a black Lexus who was loading items from a
luggage cart into the car. Two black duffel bags and a combination printer, scanner,
and copier machine were visible on the luggage cart, and officers discovered
approximately $500 and a Mississippi identification card with the name "Darryl
Brown" on the suspect. When asked his name, the suspect replied that he was David
Allen. Officers also identified a woman named Tangela Dean in the driver seat of the
vehicle. Allen was arrested and secured in the squad car, and Dean was also taken
into custody after outstanding warrants for her arrest were discovered. Officers
searched the Lexus and found thousands of dollars in cash inside it. They also
searched the items on the luggage cart and found a laptop computer, check stock, and
blank checks in the black duffel bags.
Allen was indicted for conspiracy to make, utter, and possess counterfeit
securities in violation of 18 U.S.C. §§ 371 and 513(a). He moved to suppress the
evidence discovered during the search of his car and the luggage cart. The matter was
referred to a magistrate judge who held a hearing on the motion to suppress. Officer
Rothwell testified that a combination printer, scanner, and copier machine is often
associated with counterfeit check cases. Rothwell also explained that the items on the
luggage cart next to Allen's vehicle would have inevitably been inventoried because
officers would not have "left all the property there in the parking lot."
The magistrate judge recommended denial of Allen's motion to suppress,
concluding that the officers had probable cause to arrest Allen and that the searches
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of the car and the items on the luggage cart were legal because they had occurred
incident to Allen's arrest. The magistrate judge alternatively reasoned that all of the
items would have been inevitably discovered when the vehicle and the luggage cart
were inventoried by police. The district court adopted the magistrate judge's findings
and conclusions. Allen then entered a conditional guilty plea, reserving the right to
appeal the denial of his motion to suppress.
II.
Allen argues that the officers lacked probable cause for his arrest and that the
search of the property in his car and on the luggage cart violated the Fourth
Amendment. On appeal from the denial of a motion to suppress, we review findings
of fact for clear error and legal conclusions de novo. United States v. OliveraMendez, 484 F.3d 505, 509 (8th Cir. 2007).
The Fourth Amendment protects "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." A
warrantless arrest by an officer is reasonable under the Fourth Amendment "where
there is probable cause to believe that a criminal offense has been or is being
committed." United States v. Jones, 535 F.3d 886, 890 (8th Cir. 2008). Probable
cause to make a warrantless arrest exists if "the facts and circumstances are sufficient
to lead a reasonable person to believe that the defendant had committed or is
committing an offense." United States v. Torres-Lona, 491 F.3d 750, 755 (8th Cir.
2007). A "probability or substantial chance of criminal activity, rather than an actual
showing of criminal activity" is sufficient. Id. at 756 (citation omitted). To determine
whether an officer "had probable cause to arrest an individual, we examine the events
leading up to the arrest, and then decide whether these historical facts, viewed from
the standpoint of an objectively reasonable police officer, amount to probable cause."
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation and internal quotation marks
omitted).
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With these principles in mind, we conclude that probable cause existed to arrest
Allen for possession of counterfeit checks. Evidence the Little Rock police obtained
in connection with the arrest of the three individuals in Bryant, Arkansas for
attempting to pass counterfeit checks had alerted the police to the possibility that other
conspirators were staying in a specific room at the Comfort Inn Hotel in Little Rock.
Officers Rothwell and Lee subsequently obtained physical evidence in the form up
torn up checks found in the bag that Allen had abandoned outside the hotel. Officer
Lee confirmed that "the names and the businesses [on the torn up check fragments]
were matching up with the ones that they had confiscated down in Bryant." The Little
Rock officers also saw Allen had a combination printer, scanner, and copier machine
on his luggage cart, and there was evidence that such a machine is typically associated
with counterfeit check cases. These facts and circumstances provided the officers
with a "probability or substantial chance" that Allen was involved in a conspiracy to
possess counterfeit securities, Torres-Lona, 491 F.3d at 756 (citation omitted), and
probable cause thus existed for his arrest, Jones, 535 F.3d at 890.
We turn next to Allen's challenge of the search of his car incident to his arrest.
Searches conducted without prior judicial approval "are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and welldelineated exceptions." Arizona v. Gant, 556 U.S. 332, 338 (2009) (citation omitted).
A search of items incident to an arrest lawfully extends to "the arrestee's person and
the area within his immediate control," which means "the area from within which an
arrestee might reach in order to grab a weapon or evidentiary items." Chimel v.
California, 395 U.S. 752, 763 (1969). The Supreme Court has explained that officers
can constitutionally search items in a vehicle incident to an arrest "(1) if the arrestee
is within reaching distance of the vehicle during the search, or (2) if the police have
reason to believe that the vehicle contains evidence relevant to the crime of arrest."
Davis v. United States, 131 S. Ct. 2419, 2425 (2011) (internal quotation marks
omitted) (citing Gant, 556 U.S. at 344). Even after an arrestee has been secured in the
back of a police car, officers may search the vehicle incident to an arrest if their
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observations provide a “reasonable basis” to conclude that evidence of the crime of
arrest “might be found in the vehicle.” See United States v. Tinsley, 365 F. App'x
709, 711 (8th Cir. 2010) (per curiam).
We conclude that the officers in this case lawfully searched Allen's car incident
to his arrest because they had reason to believe that the vehicle contained evidence
relevant to the crime of conspiracy to possess counterfeit securities. Gant, 556 U.S.
at 344. Little Rock officers reasonably believed that Allen had been involved in check
forgery because earlier in the evening they had seen him throw away a plastic bag that
was found to contain torn up checks. It was also reasonable for officers to conclude
that Allen had items used to forge checks in his car because he was checking out of
the hotel with all of his luggage. Officers in fact observed a combination printer,
scanner, and copier machine on Allen's luggage cart which gave them adequate reason
to believe that other materials used to forge checks might be found in the vehicle.
Cf. United States v. Hambrick, 630 F.3d 742, 747 (8th Cir. 2011). Based on these
facts it was reasonable for officers to believe that the car contained evidence of check
counterfeiting, and officers could thus lawfully search his vehicle incident to his
arrest. Gant, 556 U.S. at 344.
Allen also argues that the district court erred in denying his motion to suppress
the evidence discovered on the luggage cart. Even if officers could not search the
items on the luggage cart incident to Allen's arrest since he had already been secured
in the patrol car, see United States v. Perdoma, 621 F.3d 745, 752 (8th Cir. 2010), the
evidence found on the luggage cart may still be admissible if the government can
show it would have been inevitably discovered. See United States v. James, 353 F.3d
606, 616–17 (8th Cir. 2003). If the government "can establish by a preponderance of
the evidence that the information ultimately or inevitably would have been discovered
by lawful means . . . [then] the evidence should be received." Nix v. Williams, 467
U.S. 431, 444 (1984). For that exception to apply the government must show (1) a
reasonable probability that the evidence would have been discovered by lawful means
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in the absence of police misconduct, and (2) an active pursuit of a substantial,
alternative line of investigation at the time of the constitutional violation. United
States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997).
In this case there is a reasonable probability that the evidence on the luggage
cart would have been discovered after Allen's arrest during an inventory search and
that the police were pursing an alternative line of investigation. Inventory searches
may be conducted without a warrant or probable cause to search, United States v.
Taylor, 636 F.3d 461, 464 (8th Cir. 2011), so long as they are reasonable under the
totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir. 2007).
An inventory search protects an owner's property while in police custody as well as
protecting the police from danger and from subsequent claims about stolen property.
South Dakota v. Opperman, 428 U.S. 364, 369 (1976). Officers have broad authority
to conduct inventory searches of items "found on the person or in the possession of
an arrested person who is to be jailed." Illinois v. Lafayette, 462 U.S. 640, 646
(1983). Examining "all the items removed from the arrestee's person or possession
and listing or inventorying them is an entirely reasonable administrative procedure."
Id.
At the suppression hearing the government entered into evidence a police
department policy governing inventory searches. When asked whether there was "any
way [the police] would have just left the items as they were out on the street," an
officer answered that they would not "have just taken the two subjects from the
vehicle and left all the property in the parking lot." The officer explained that since
both Allen and Dean were arrested at the scene, the items on the luggage cart would
have been taken to the police station for safekeeping and inventoried to guard against
loss or theft. Lafayette, 462 U.S. at 644–46. There was also evidence the officers
were in active pursuit of a substantial, alternative line of investigation because Lee
had been preparing an application for a search warrant. See Conner, 127 F.3d at 668.
The only event that stopped Lee from completing his application was a call from the
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desk clerk informing the officers that Allen was planning to check out of the hotel.
See United States v. Hammons, 152 F.3d 1025, 1030 (8th Cir. 1998). Since the
evidence showed that all the items on the luggage cart would have inevitably been
discovered and that the officers were pursuing an alternative line of investigation, Nix,
467 U.S. at 433, the district court did not err in denying Allen's motion to suppress.
III.
For these reasons we affirm the judgment of the district court.
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