United States v. DeWayne Cartwright ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1879
U NITED S TATES OF AMERICA,
Plaintiff-Appellee,
v.
D EWAYNE C ARTWRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 08-CR-142—William T. Lawrence, Judge.
A RGUED O CTOBER 18, 2010—D ECIDED D ECEMBER 29, 2010
Before
P OSNER and W OOD , Circuit Judges, and
A DELMAN, District Judge.Œ
A DELMAN, District Judge. Police pulled Dewayne Cart-
wright over for a traffic violation, arrested him when
he failed to produce a driver’s license and gave a false
name, then searched the car incident to his arrest,
locating a gun in the back seat. Charged with possessing
Œ
Of the Eastern District of Wisconsin, sitting by designation.
2 No. 10-1879
a firearm as a felon, see 18 U.S.C. § 922(g)(1), Cart-
wright moved to suppress the firearm, relying on
Arizona v. Gant, 129 S. Ct. 1710 (2009), a decision that
came down subsequent to his arrest and which nar-
rowed the scope of a permissible automobile search
incident to arrest. The district court held an evidentiary
hearing, then denied the motion, concluding that the
police would have inevitably discovered the firearm
pursuant to an inventory search of the car. Cartwright
entered a conditional guilty plea, and the district court
sentenced him to 84 months in prison. Cartwright
now appeals the denial of his motion to suppress,
arguing that the district court erred in applying the
inevitable discovery doctrine. We affirm.
I. BACKGROUND
On August 12, 2008, at about 9:00 p.m., Officer Richard
Stratman of the Indianapolis Metropolitan Police Depart-
ment (“IMPD”), while on routine patrol, noticed a
vehicle without an illuminated rear license plate, a viola-
tion of Indiana law. See Ind. Code § 9-19-6-4(e). Stratman
stopped the vehicle, which pulled into a grocery store
parking lot, stopping between two rows of parking
spaces but not in a designated spot. The car was
occupied by the driver, Cartwright; a front seat pas-
senger, Ciera Golliday, who owned the car; and in the
back seat, Golliday’s two- or three-year-old child.
Stratman asked Cartwright for his driver’s license,
but Cartwright replied that he did not have one in his
possession. Stratman asked the driver for his name, and
No. 10-1879 3
Cartwright gave a name Stratman could not confirm.
Based on Cartwright’s nervous demeanor and refusal to
identify himself, Stratman removed him from the car,
handcuffed him, and placed him under arrest. See
Ind. Code § 34-28-5-3.5 (“A person who knowingly or in-
tentionally refuses to provide either the person’s:
(1) name, address, and date of birth; or (2) driver’s
license, if in the person’s possession; to a law enforce-
ment officer who has stopped the person for an infraction
or ordinance violation commits a Class C misdemeanor.”).
In the meantime, Officer James Barleston arrived on the
scene and removed Golliday and her child from the car.
Subsequent to Cartwright’s arrest, Barleston searched
the back seat and found a loaded Ruger semi-automatic
pistol. After removing and securing the gun, Barleston
completed a search of the car, finding nothing other
than old clothes.
Pursuant to IMPD policy, Stratman had the car towed,
as Cartwright was under arrest and Golliday did not
have a driver’s license. Also pursuant to IMPD policy,
Barleston performed an inventory search of the car prior
to its impoundment, finding nothing of value, and
filled out a tow slip, listing the reason for the tow as
“arrest.” However, contrary to IMPD policy, Barleston
failed to list all of the car’s contents, only the keys. He
testified that, although he usually lists the inventory of
a vehicle on the tow slip, he did not do so in the present
case because he found nothing of importance.
Golliday testified that upon learning the car would be
towed she asked the officers to allow her to have some-
4 No. 10-1879
one else move it, but they refused. She stated that
because she lacked the funds to retrieve the car from
impoundment she would have allowed anyone, even
a stranger, to move the car. Stratman and Barleston testi-
fied that they did not recall Golliday making any
such request.
At the time of this encounter, our circuit allowed
police to search a vehicle incident to the driver’s arrest
even after having removed and secured the driver. See,
e.g., United States v. Sholola, 124 F.3d 803, 817-18 (7th Cir.
1997); see also New York v. Belton, 453 U.S. 454, 460
(1981) (holding that when an officer has made a lawful
custodial arrest of the occupant of an automobile, he
may, as a contemporaneous incident of that arrest,
search the interior of that automobile). However, in Gant,
the Supreme Court narrowed the rule, holding that:
Police may search a vehicle incident to a recent occu-
pant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time
of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest. When
these justifications are absent, a search of an arrestee’s
vehicle will be unreasonable unless police obtain a
warrant or show that another exception to the war-
rant requirement applies.
129 S. Ct. at 1723-24.
In response to Cartwright’s motion to suppress below,
the government acknowledged that Gant made a search
incident to arrest improper but argued that the police
would have inevitably discovered the gun pursuant to
No. 10-1879 5
the inventory search. The district court agreed and
denied the motion.
II. DISCUSSION
A. Standard of Review
We apply a dual standard of review to a district court’s
denial of a suppression motion, reviewing legal conclu-
sions de novo and findings of fact for clear error. United
States v. Jackson, 598 F.3d 340, 344 (7th Cir.), cert. denied,
131 S. Ct. 435 (2010). In the context of an inven-
tory search, we review for clear error a district court’s
conclusion that the police followed standard impound-
ment procedures, but our review of the reasonableness
of the inventory search and seizure is plenary. United
States v. Cherry, 436 F.3d 769, 772-73 (7th Cir. 2006).
B. Inevitable Discovery
Under the inevitable discovery doctrine, if the gov-
ernment can establish that the evidence at issue, even
though unlawfully obtained, would have inevitably been
discovered through lawful means, then the deterrence
rationale animating the exclusionary rule has so little
basis that the evidence should be admitted. Nix v.
Williams, 467 U.S. 431, 444 (1984). To obtain the benefit
of the doctrine, the government must show a chain of
events that would have led to a warrant or some other
justification independent of the unlawful search. United
States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995).
6 No. 10-1879
Inventory searches constitute a well-recognized excep-
tion to the warrant requirement and are reasonable
under the Fourth Amendment. See South Dakota v.
Opperman, 428 U.S. 364, 376 (1976). In Opperman, the
Supreme Court noted that local police departments
routinely inventory and secure the contents of im-
pounded automobiles. Doing so protects the police from
potential danger, protects the owner’s property while
it remains in police custody, and protects the police
against claims of lost, stolen, or damaged property. Id.
at 369. An inventory search is lawful if (1) the
individual whose possession is to be searched has been
lawfully arrested, and (2) the search is conducted as part
of the routine procedure incident to incarcerating an
arrested person and in accordance with established
inventory procedures. United States v. Jackson, 189 F.3d
502, 508-09 (7th Cir. 1999). “Both the decision to take
the car into custody and the concomitant inventory
search must meet the strictures of the Fourth Amend-
ment.” United States v. Duguay, 93 F.3d 346, 351 (7th
Cir. 1996). “[T]he decision to impound (the ‘seizure’) is
properly analyzed as distinct from the decision to in-
ventory (the ‘search’).” Id.In the present case, the district court found that, pursu-
ant to IMPD policy, the officers towed the vehicle from
the scene because Golliday, the passenger/owner, did not
have a driver’s license and Cartwright was under ar-
rest. The district court further noted that under IMPD
policy the police conduct inventory searches prior to
impounding a vehicle. The district court found that the
police conducted such a search in the present case and
No. 10-1879 7
concluded that had they not already found the gun,
they would inevitably have done so.
Cartwright argues the district court ignored Golliday’s
testimony that she could have found someone to move
the car, making impoundment unnecessary. He relies
primarily on Duguay, in which we found unreasonable
the decision to impound a car in which the defendant
was a passenger because the defendant’s girlfriend, the
driver, could have moved it. We said that: “The decision
to impound an automobile, unless it is supported by
probable cause of criminal activity, is only valid if the
arrestee is otherwise unable to provide for the speedy
and efficient removal of the car from public thorough-
fares or parking lots.” Duguay, 93 F.3d at 353. This case
is nothing like Duguay, and we find that the officers
acted reasonably in impounding the car here.
As we have noted, the police followed IMPD policy in
deciding to tow the car. While that fact is important, it
is not dispositive for purposes of the Fourth Amend-
ment. The existence of a police policy, city ordinance, or
state law alone does not render a particular search or
seizure reasonable or otherwise immune from scrutiny
under the Fourth Amendment. See Sibron v. New York,
392 U.S. 40, 61 (1968) (“The question in this Court upon
review of a state-approved search or seizure is not
whether the search (or seizure) was authorized by state
law. The question is rather whether the search was rea-
sonable under the Fourth Amendment.”); Miranda v.
City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (ex-
plaining that “the decision to impound pursuant to
8 No. 10-1879
the authority of a city ordinance and state statute does
not, in and of itself, determine the reasonableness of the
seizure under the Fourth Amendment”). We must there-
fore take an independent look at the policy Indianapolis
followed.
Unlike the police department in Duguay, which had no
standardized procedure, see id. at 352, the IMPD has a
comprehensive towing and impoundment policy, which
the government introduced at the evidentiary hearing
below. The policy sets forth the circumstances under
which the police may tow a car, establishes the pro-
cedures officers must follow in calling for a tow, requires
an inventory search whenever an officer takes a vehicle
into custody, and specifically forbids inventory searches
“motivated by an officer’s desire to investigate and seize
evidence of a criminal act.” See Cherry, 436 F.3d at 776-77(Posner, J., dissenting) (explaining that established inven-
tory search procedures protect against such pretext
searches). As is pertinent here, the IMPD policy permits
the impoundment of vehicles “operated by a non-licensed
or suspended driver” or “by [a] person under custodial
arrest for any charge.” Because Golliday was unlicensed
and Cartwright under arrest, the policy permitted im-
poundment in the present case. See United States v.
Velarde, 903 F.2d 1163, 1166 (7th Cir. 1990) (upholding
police impoundment where neither driver nor passenger
had a valid driver’s license). The IMPD policy is suffi-
ciently standardized, the district court committed no
clear error in finding that the officers followed the
policy, and, for the reasons that follow, we find the offi-
cers’ actions reasonable under the circumstances.
No. 10-1879 9
Unlike Duguay, where the officers impounded the car
despite the presence on the scene of a licensed driver
readily able to move it, 93 F.3d at 353, the record in
this case shows that the unlicensed Golliday had no
means of ensuring the “speedy and efficient” removal of
her car from the parking lot. At the evidentiary hearing,
Golliday testified that she called “someone” to come
and pick up the car, but she never identified that person
or stated how long it would have taken him/her to
get there. Golliday mentioned that her mother-in-law
worked at the grocery store, but she was not working on
the night of this encounter. Golliday said that she was
“vaguely familiar” with some of the store’s other em-
ployees, but the record contains no evidence that any
of those acquaintances were present and willing to
assume responsibility for the car. Ultimately, Golliday
stated that she would have allowed anyone, even a li-
censed stranger, to move the car. The Fourth Amend-
ment does not require that the police offer these sorts
of alternatives to impoundment. See Colorado v. Bertine,
479 U.S. 367, 373-74 (1987) (holding that the police need
not give a motorist “an opportunity to make alternative
arrangements” that avoid impoundment and inventory);
United States v. Clinton, 591 F.3d 968, 972 (7th Cir.)
(“That Clinton’s girlfriend, the owner of the car, could
have been called to take possession of the car, is irrele-
vant.”), cert. denied, 131 S. Ct. 246 (2010); Cherry, 436 F.3d
at 775 (stating that officers need not invite or accept
input from the motorist as to the appropriate disposition
of his vehicle; “nor does the Fourth Amendment demand
that police offer a motorist an alternative means of re-
10 No. 10-1879
moving his vehicle that will avoid the need to tow it and
conduct an inventory search”); United States v. Privett,
68 F.3d 101, 104 (5th Cir. 1995) (finding a search within
the inventory exception, even though the vehicle could
have been towed to the motorist’s home rather than an
impound lot); United States v. Skillern, 947 F.2d 1268,
1275-76 (5th Cir. 1991) (holding that the police were not
required to offer a motorist an alternative to impound-
ment).1
1
At oral argument, Cartwright’s lawyer advised that the
grocery store permitted abandoned vehicles to remain in the
parking lot for seventy-two hours, possibly enough time for
Golliday to find a licensed driver or fix the license plate
lamp. However, the Fourth Amendment did not require the
officers to explore such alternatives with the store owner. Nor
were the officers obliged to leave the car where it was—stopped
between two rows of parking spaces—as this may have
created a hazard to others using the lot or rendered the police
vulnerable to claims had the car been stolen, vandalized, or
damaged. See, e.g., United States v. Brown, 787 F.2d 929, 932
(4th Cir. 1986) (“[W]e are of opinion that the police officer in
this case could reasonably have impounded Brown’s vehicle
either because there was no known individual immediately
available to take custody of the car, or because the car could
have constituted a nuisance in the area in which it was
parked [i.e., a private lot adjacent to apartments and a busi-
ness.]”); Cabbler v. Superintendent, Va. Penitentiary, 528 F.2d
1142, 1143, 1146 (4th Cir. 1975) (holding that the police do not
violate the Fourth Amendment when they tow a vehicle to
protect it or to remove a nuisance after arresting the driver
(continued...)
No. 10-1879 11
Moreover, no one could have lawfully driven
Golliday’s car from the scene, as it did not have the
functional license plate lamp required by Indiana law.
Ind. Code § 9-19-6-4(e) (“Either a tail lamp or a separate
lamp must be placed and constructed so as to illuminate
the rear registration plate with a white light and make
the plate clearly legible from a distance of fifty (50) feet
to the rear.”). In the absence of such a lamp, the car was
not lawfully operable. See, e.g., Freeman v. State, 904
N.E.2d 340, 342 (Ind. Ct. App. 2009).
Finally, Cartwright argues that Barleston did not
conduct the inventory search properly, failing to make a
complete list of the property he found in Golliday’s car.
While Cartwright correctly points out that IMPD policy
required Barleston to make such a list, Barleston’s
failure to do so does not undermine the proposition
that the police would inevitably have found the gun
through a lawful inventory search. In determining
1
(...continued)
away from home if the driver has no means immediately
available for safekeeping of the vehicle); United States v.
Cauthen, 669 F. Supp. 2d 629, 633-36 (M.D.N.C. 2009) (discussing
the need to impound a vehicle for the purpose of protecting
it after the arrest of the driver, even when the vehicle was
parked in a private lot); Hess v. Ryan, 651 F. Supp. 2d 1004, 1045
(D. Ariz. 2009) (“The police generally have the authority to
impound a vehicle following an arrest of its driver, as part of
their ‘care-taking’ functions, whether to avoid safety concerns,
to insure the safety of the vehicle, or simply to keep it from
being abandoned on another’s property.”).
12 No. 10-1879
whether the inevitable discovery doctrine applies, the
court considers a hypothetical situation. Of course, by
the time Barleston conducted the actual inventory
search here, the gun had already been seized, and Cart-
wright was already under arrest. But the district court
found, based on the evidence and the IMPD policy,
that an inventory search would have been conducted
and that the gun would have been found pursuant to
such a search. The evidence supports that conclusion.
In any event, we have held that minor deviations
from department policy do not render an inventory
search unreasonable. See United States v. Lomeli, 76 F.3d
146, 148-49 (7th Cir. 1996).2
III. CONCLUSION
For the foregoing reasons, we A FFIRM Cartwright’s
conviction.
2
Because we affirm based on inevitable discovery, we need
not address the government’s alternate argument that the
search should be upheld under the good faith doctrine.
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