Raymond Marling v. Richard Brown ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3077
RAYMOND MARLING,
Petitioner-Appellee,
v.
FRANK LITTLEJOHN, Deputy Warden, Wabash Valley Correc-
tional Facility,
Respondent-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:19-cv-00002-JRS-DLP — James R. Sweeney II, Judge.
____________________
ARGUED APRIL 28, 2020 — DECIDED JULY 13, 2020
____________________
Before EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.
EASTERBROOK, Circuit Judge. After Raymond Marling was
arrested, on a warrant, while driving his car, police in Indi-
ana took an inventory of its contents. The trunk held a
locked box. An officer opened the box with a screwdriver
and found illegal drugs. Together with other evidence (in-
cluding the fact that Marling was armed, despite felony con-
victions that made this unlawful), these drugs played a role
2 No. 19-3077
in his convictions and 38-year sentence, which includes a 20-
year enhancement for being a habitual criminal.
Marling’s lawyer asked the trial court to suppress the
contents of the box, arguing that opening it was improper.
That argument lost in the trial court and lost again on ap-
peal. Marling v. State, 2014 Ind. App. Unpub. LEXIS 1305(Sept. 30, 2014). He filed a collateral aeack, this time arguing
that his trial and appellate lawyers had furnished ineffective
assistance by not presenting the best reasons for objecting to
the box’s opening. He contended that counsel should have
argued that opening his box damaged it, violating the police
department’s policy. The post-conviction court held a hear-
ing, took evidence, and rejected this contention. The court of
appeals affirmed, concluding among other things that coun-
sel’s omission was not prejudicial because the record did not
show that the box had been damaged. 2018 Ind. App. Un-
pub. LEXIS 610 (May 25, 2018). But a federal district court is-
sued a writ of habeas corpus, 2019 U.S. Dist. LEXIS 163777(S.D. Ind. Sept. 24, 2019), ruling that a photograph in the rec-
ord shows damage to the box’s lock. This meant, the judge
stated, that the state court’s finding had been rebueed by
clear and convincing evidence. 28 U.S.C. §2254(e)(1).
A factual mistake by a state court does not support col-
lateral relief, unless a correction shows that the petitioner “is
in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. §2254(a). Ineffective assis-
tance of counsel suffices, because it violates the Sixth
Amendment (applied to the states by the Fourteenth). Indi-
ana has assumed that failure of counsel at trial and on ap-
peal to choose the best argument in support of a motion can
violate the Sixth Amendment, despite many cases holding
No. 19-3077 3
that it is essential to evaluate counsel’s overall performance
rather than find a single error. See, e.g., Strickland v. Washing-
ton, 466 U.S. 668, 691–96 (1984); Williams v. Lemmon, 557 F.3d
534, 538–40 (7th Cir. 2009). Because Indiana has not made
this potential argument we do not pursue it. See United
States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Still, it re-
mains necessary to show that counsel’s decision was both
substantively deficient and prejudicial. The state’s appellate
court applied the Strickland standard, and our review of the
outcome under §2254(d) has been called “doubly deferen-
tial”. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The district judge found both deficient performance and
prejudice because Florida v. Wells, 495 U.S. 1 (1990), holds
that the validity of an inventory search depends on the po-
lice department having a policy about when to take invento-
ries. The judge read Wells to say that compliance with this
policy is essential, which implies that a violation of a local
policy also violates the Constitution. The judge read the local
policy at issue to forbid damage to a container, which led
him to find a constitutional error, which counsel had failed
to call to the state court’s aeention. We think that the judge
has misunderstood both Wells and the local policy.
Wells holds that a policy is important, but not because the
Constitution demands that states suppress evidence ac-
quired through violations of state or local rules. That possi-
bility was rejected in Virginia v. Moore, 553 U.S. 164 (2008),
among many other decisions. See also, e.g., Wilson v. Corco-
ran, 562 U.S. 1, 5 (2010) (federal court may not issue a writ
under §2254 based on an asserted error of state law). Wells
explained why a policy maeers:
4 No. 19-3077
Our view that standardized criteria or established routine must
regulate the opening of containers found during inventory
searches is based on the principle that an inventory search must
not be a ruse for a general rummaging in order to discover in-
criminating evidence. The policy or practice governing inventory
searches should be designed to produce an inventory. The indi-
vidual police officer must not be allowed so much latitude that
inventory searches are turned into a purposeful and general
means of discovering evidence of crime.
But in forbidding uncanalized discretion to police officers con-
ducting inventory searches, there is no reason to insist that they
be conducted in a totally mechanical “all or nothing” fashion.
“[I]nventory procedures serve to protect an owner’s property
while it is in the custody of the police, to insure against claims of
lost, stolen, or vandalized property, and to guard the police from
danger.” A police officer may be allowed sufficient latitude to
determine whether a particular container should or should not
be opened in light of the nature of the search and characteristics
of the container itself. Thus, while policies of opening all con-
tainers or of opening no containers are unquestionably permissi-
ble, it would be equally permissible, for example, to allow the
opening of closed containers whose contents officers determine
they are unable to ascertain from examining the containers’ exte-
riors. The allowance of the exercise of judgment based on con-
cerns related to the purposes of an inventory search does not
violate the Fourth Amendment.
495 U.S. at 4 (cleaned up). Thus “open all containers” is a
valid policy. So is “exercise discretion”. What maeers is that
there be some policy that makes the inventory something
other than a search based on belief that it will turn up evi-
dence of crime. The Justices did not suggest that every de-
parture from any policy violates the Fourth Amendment.
Suppose a local policy calls for opening a locked box with a
hammer and chisel, while one officer uses a lockpick instead.
Or suppose a policy says that items are to be stored in evi-
dence bags, while one officer put them in boxes. Such depar-
No. 19-3077 5
tures from a policy lack constitutional significance under the
rationale of Wells.
The North Vernon Police Department, whose officers
stopped Marling’s car and opened the box, has an inventory
policy. Section 49.3.2 of General Order 49 provides:
Inventory the contents of suitcases, boxes, and other containers.
…
Closed and/or Locked Containers - Inventory all closed or locked
containers. If a situation exists that requires extreme measures
(extensive time, manpower and equipment), and/or unreasona-
ble potential damage to property, the officer should avoid open-
ing the container, but should document why the container was
not opened.
This says that all locked containers are to be opened and in-
ventoried, though the officer “should avoid” opening a con-
tainer when that would cause “unreasonable potential dam-
age” to property. The policy is valid under Wells: it combines
a presumptive rule of opening everything with a discretion-
ary (“should”) exception when the damage would be “un-
reasonable” in the officer’s judgment. And because the poli-
cy is valid, the search is valid too. A federal judge’s disa-
greement with how an officer exercises discretion under a
local policy does not make a search unconstitutional in ret-
rospect. See United States v. Cartwright, 630 F.3d 610, 616 (7th
Cir. 2010). Any other understanding would amount to using
the Constitution to enforce the details of local law, which
Moore and many other decisions say is improper.
It follows that the district judge’s disagreement with the
state judiciary about whether the officer followed the local
policy is not a sufficient ground for collateral relief. And, for
what it is worth, we do not see a violation of the local policy.
6 No. 19-3077
The judge included in his opinion a picture showing
some damage to the box’s lock. That was enough, he
thought, to establish the policy’s violation, even though Mar-
ling did not draw this picture to the aeention of the state’s
appellate court. Let us suppose that the judges should have
examined the picture anyway. Still, the policy does not for-
bid all damage; it forbids unreasonable damage. This box was
intact, and the lock could have been fixed or replaced. Why
was the damage “unreasonable”? The judge did not say.
Then there is the discretionary language in the General Or-
der. The judge apparently understood Wells to forbid the use
of discretion, such as evaluating when a potential for dam-
age would be “unreasonable”. Yet the principal holding of
Wells is that discretion about inventory searches is compati-
ble with the Fourth Amendment. The Justices wrote:
Nothing in South Dakota v. Opperman, 428 U.S. 364 (1976), or Illi-
nois v. LafayeLe, 462 U.S. 640 (1983), prohibits the exercise of po-
lice discretion so long as that discretion is exercised according to
standard criteria and on the basis of something other than suspi-
cion of evidence of criminal activity.
Wells, 495 U.S. at 3–4 (cleaned up), quoting from Colorado v.
Bertine, 479 U.S. 367, 375 (1987). The officer who opened and
inventoried the contents of this box acted within the scope of
discretion granted by General Order 49. As Wells requires,
discretion under the policy is unrelated to beliefs about the
container’s contents. If the officer did too much (“unreason-
able”) damage, that could have been the basis for a tort claim
under state law. It is not a basis for a conclusion that the
Fourth Amendment required the suppression of incriminat-
ing evidence. It follows that counsel did not violate the Sixth
Amendment by omieing this line of argument.
REVERSED