United States v. Michael Nevatt ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3555
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Ryan Nevatt
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 14, 2020
Filed: June 1, 2020
[Published]
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Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
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PER CURIAM.
A jury convicted Michael Ryan Nevatt of conspiracy to distribute
methamphetamine and six related gun and money laundering counts. The district
court1 sentenced Nevatt to 460 months’ imprisonment. On appeal, Nevatt argues that
the district court (1) erroneously denied his motion to suppress evidence and (2)
imposed a substantively unreasonable sentence. We affirm.
I. Background
In mid-July 2015, Detective Jason Copley of the Springfield, Missouri Police
Department received information through his chain of command that Nevatt was
trafficking large amounts of methamphetamine from Texas and Oklahoma to Branson
and Springfield, Missouri. Detective Copley conducted a criminal history check on
Nevatt and learned that Nevatt had prior felony offenses, including violent offenses.
On July 29, 2015, Detective Copley learned that Nevatt had ridden a
motorcycle to Mercy Hospital in Springfield, Missouri. Detective Copley drove to the
hospital in an unmarked police car, found Nevatt’s motorcycle, and waited for Nevatt
to return. Eventually, Nevatt left the hospital carrying a drawstring bag. He drove
away on his motorcycle.
Detective Copley followed Nevatt. He noted that Nevatt appeared very
uncomfortable operating the motorcycle. Specifically, Nevatt appeared very rigid,
was accelerating so slowly that he impeded traffic, and had difficulty maintaining his
balance. Detective Copley saw Nevatt violate traffic laws by impeding and
obstructing traffic and by failing to maintain his lane. Detective Copley, who had
previously worked in a patrol capacity, believed Nevatt to be impaired. Detective
Copley’s partner called Officer Jim Cooney and asked him to conduct a traffic stop
on Nevatt based on the detectives’ suspicion that Nevatt was intoxicated or impaired.
According to Detective Copley, he had no reason to believe that Nevatt was carrying
1
The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
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something of evidentiary value on the motorcycle; the only information Detective
Copley had was that Nevatt was involved in a drug-trafficking conspiracy.
Officer Cooney stopped Nevatt approximately two miles from the hospital.
Officer Cooney had Nevatt get off the motorcycle. He told Nevatt that he was going
to perform a pat-down search. Nevatt consented. Officer Cooney then asked for
Nevatt’s consent to search the motorcycle, but Nevatt declined consent. Officer
Cooney informed Nevatt that he stopped him based on another officer’s observations
of Nevatt’s possible impairment while driving. Nevatt admitted his driving was not
perfect, but he attributed it to his being a novice rider who had not mastered operation
of his recently purchased motorcycle. Officer Cooney administered a field sobriety
test. Based on Nevatt’s performance and Officer Cooney’s interaction with Nevatt,
Officer Cooney determined that Nevatt was not impaired.
Officer Cooney conducted a records check on Nevatt. Nevatt had a valid
driver’s license, but he did not have a proper endorsement for driving a motorcycle
or insurance for the motorcycle under Missouri law. Officer Cooney cited Nevatt for
not having a motorcycle endorsement. Officer Cooney gave Nevatt a verbal warning
for not having insurance.
Officer Cooney decided to tow Nevatt’s motorcycle because (1) Nevatt was not
insured to operate the motorcycle; (2) Nevatt was not under arrest and therefore
would continue to have access to the motorcycle despite his lack of insurance; and
(3) the motorcycle remained in the street, where it created a safety hazard. Officer
Cooney also noted that Nevatt admitted he could not safely operate the motorcycle.
Officer Cooney did not consult with the detectives about his decision to tow the
motorcycle; he explained, “Because at that point it was my traffic stop and, you know,
that was—they had their side of it and then I had my obligations and the side of my
stop.” R. & R. at 4, ¶ 7, United States v. Nevatt, No. 4:16-cr-00150-DGK (W.D. Mo.
Mar. 8, 2018), ECF No. 445 (internal quotation omitted).
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At the time of the traffic stop, the Springfield Police Department Standard
Operating Guideline (“Guideline”) governed custody and non-custody tows. The
Guideline defined “[c]ustody [t]ow” as including a vehicle “[o]rdered removed by the
Police Department or other authorized agent of the City because of a violation of
law.” Ex. A at 1, United States v. Nevatt, No. 4:16-cr-00150-DGK (W.D. Mo. Dec.
27, 2017), ECF No. 381-1. The Guideline directed that “[o]fficers . . . may
immediately tow a vehicle from the public right-of-way or City-owned property . . .
[w]hen the vehicle creates a safety hazard.” Id. at 4. The Guideline advised that
“[w]hen Custody Towing a vehicle, personnel shall complete a Tow Report (Missouri
Department of Revenue Crime Inquiry and Inspection Report / Authorization to Tow,
DOR Form # 4569) which shall serve as the written record of all vehicles towed at
the direction of police personnel.” Id. at 2–3. The Tow Report’s “inventory section
must be completed in all cases,” and “[a]ll property with an estimated value of $25
or more shall be documented.” Id. at 3.
Officer Cooney inventoried the property found on the motorcycle. The
motorcycle was equipped with a saddlebag. Inside the saddlebag, Officer Cooney
found two cell phones, a drawstring-type bag containing a GoPro camera, a tablet,
and a plastic bag containing a large amount of cash. Officer Cooney seized the
property as evidence.
After Officer Cooney discovered the money, he asked Nevatt if it belonged to
him. According to Officer Cooney, he questioned Nevatt about the money in
“relat[ion] to towing and inventory” to “establish[] ownership of items.” Suppression
Hr’g at 62, United States v. Nevatt, No. 4:16-cr-00150-DGK (W.D. Mo. Feb. 9,
2018), ECF No. 428. Nevatt “denied knowing it was in there,” “denied ownership of
it,” and “denied knowing how much it was.” Id. at 61–62. Officer Cooney also asked
Nevatt, “[H]ow do you not know this large amount of many bundles of 20s and 100s
is in this motorcycle that you’re driving around[?]” Id. at 62. Nevatt replied that he
wanted his lawyer. Officer Cooney asked no more questions.
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Officer Cooney notified the detectives of the results of the inventory search.
Detective Copley’s partner went to the site of the traffic stop to retrieve the items. He
advised Nevatt that he was going to take the money and the electronic items as part
of an ongoing investigation.
Officer Cooney did not fill out the Tow Report’s inventory section. Detective
Copley explained that “[t]hose items were initially located during an inventory and
later logged as evidence. They weren’t going to be left with the motorcycle, therefore,
they weren’t logged as an inventory.” Id. at 40. According to Officer Cooney, the
inventory sheet contains only items that are left with the vehicle during the tow to
prevent claims against the police and the tow company while the vehicle is stored.
Items seized as evidence, Officer Cooney noted, are included in a police report under
the property tab section instead of the inventory section. Indeed, the police report
documented Nevatt’s seized items. The tow sheet was included as part of the police
report.
After Officer Cooney ticketed Nevatt, the tow service arrived to take the
motorcycle. Nevatt requested to take the money with him. Officer Cooney told him
no and that he needed to leave. Nevatt left.
Detective Copley used the information obtained from the traffic stop in an
affidavit to obtain search warrants for the devices found in Nevatt’s bag during the
traffic stop and a search warrant for Nevatt’s hotel room. The subsequent search of
Nevatt’s hotel room uncovered a large sum of U.S. currency, controlled substances,
cell phones, tablets, and a firearm, which the officers seized.
Ultimately, Nevatt was charged in a seven-count superseding indictment with
conspiracy to distribute 500 grams or more of methamphetamine (“Count 1”);
conspiracy to carry, use, and possess various firearms in furtherance of the conspiracy
to distribute methamphetamine (“Count 2”); possession of firearms in furtherance of
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a drug trafficking crime (“Count 3”); conspiracy to commit money laundering
(“Count 4”); engaging in monetary transactions in property derived from specified
unlawful activity (“Counts 5 and 6”); and laundering of monetary instruments
(“Count 7”).
Nevatt moved to suppress the evidence. The magistrate judge held a hearing,
made factual findings, and recommended denial of the motion. The district court
overruled Nevatt’s objections and adopted the magistrate judge’s report and
recommendation, denying the motion.
A jury found Nevatt guilty on all seven counts. A presentence investigation
report (PSR) calculated a Guidelines range of life imprisonment, plus a mandatory 60
months consecutive on Count 3, based on a total offense level of 50 (reduced to the
maximum of 43) and a criminal history category of V. The district court imposed a
below-Guidelines sentence of 460 months’ imprisonment: 360 months’ imprisonment
on Count 1; 20 years on each of Counts 2, 4, 5, 6, and 7, to be served concurrently;
and 100 months’ imprisonment on Count 3, to be served consecutively.
II. Discussion
On appeal, Nevatt argues that the district court (1) erroneously denied his
motion to suppress evidence and (2) imposed a substantively unreasonable sentence.
A. Motion to Suppress
Nevatt argues that the inventory search was merely a pretext to search for
incriminating evidence. Nevatt further asserts that “Officer Cooney did not impound
the vehicle pursuant to law enforcement’s legitimate community caretaking or public
safety functions.” Appellant’s Br. at 10. He maintains that his “motorcycle was
lawfully parked alongside the road,” “did not present a hazard to other drivers at that
location[,] and did not jeopardize public safety in any way.” Id. He also seeks
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suppression of the evidence seized from his hotel room as fruit of the poisonous tree
stemming from the illegal motorcycle impoundment and search.
“Reviewing the denial of a motion to suppress, this court reviews ‘legal
conclusions de novo and factual findings for clear error.’” United States v. Morris,
915 F.3d 552, 555 (8th Cir. 2019) (quoting United States v. Woods, 747 F.3d 552,
555 (8th Cir. 2014)). “We . . . review the district court’s findings of fact regarding
the circumstances of an inventory search for clear error, including the question of
pretext.” United States v. Taylor, 636 F.3d 461, 463–64 (8th Cir. 2011) (internal
citation omitted). “A credibility determination made by a district court after a hearing
on the merits of a motion to suppress is virtually unassailable on appeal.” Morris, 915
F.3d at 555 (quoting United States v. Frencher, 503 F.3d 701, 701 (8th Cir. 2007)).
The general rule is that a search conducted without a warrant is unreasonable;
however, inventory searches are one exception to that rule. United States v. Smith,
715 F.3d 1110, 1117 (8th Cir. 2013). “The purpose of an inventory search is to
protect the owner’s property while it remains in police custody, as well as to protect
police against claims or disputes over lost or stolen property and from potential
dangers.” Id. (cleaned up). “An inventory search must be reasonable under the totality
of the circumstances”; therefore, law enforcement may not use an inventory search
as “a ruse for general rummaging in order to discover incriminating evidence.” Id.
(internal quotation omitted). But “[t]he police are not precluded from conducting
inventory searches when they lawfully impound the vehicle of an individual that they
also happen to suspect is involved in illegal activity.” United States v. Harris, 795
F.3d 820, 822 (8th Cir. 2015) (internal quotation omitted).
“The reasonableness requirement is met when an inventory search is conducted
according to standardized police procedures, which generally remove the inference
that the police have used inventory searches as a purposeful and general means of
discovering evidence of a crime.” Smith, 715 F.3d at 1117 (quoting Taylor, 636 F.3d
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at 464). “[W]hen police are conducting inventory searches according to such
standardized policies, they may keep their eyes open for potentially incriminating
items that they might discover in the course of an inventory search, as long as their
sole purpose is not to investigate a crime.” Harris, 795 F.3d at 822 (internal quotation
omitted).
We have recognized that “inventory searches need not be conducted in a totally
mechanical, all or nothing fashion.” Smith, 715 F.3d at 1117 (internal quotation
omitted). As a result, “[e]ven if police fail to adhere to standardized procedures, the
search is nevertheless reasonable provided it is not a pretext for an investigatory
search.” Taylor, 636 F.3d at 465. “There must be something else; something to
suggest the police raised the inventory-search banner in an after-the-fact attempt to
justify a simple investigatory search for incriminating evidence.” Smith, 715 F.3d at
1117–18 (internal quotations omitted). In other words, “[s]omething else must be
present to suggest that the police were engaging in their criminal investigatory
function, not their caretaking function, in searching the defendant’s vehicle.” Taylor,
636 F.3d at 465 (internal quotation omitted).
Nevatt first argues that Officer Cooney did not lawfully impound his
motorcycle.2 He asserts that his “motorcycle was lawfully parked alongside the road”
and “did not present a hazard to other drivers at that location and did not jeopardize
public safety in any way. Nor was the vehicle at risk of being stolen or vandalized.”
Appellant’s Br. at 10.
Officer Cooney testified that the motorcycle was “barely off Jefferson there still
in the street.” Suppression Hr’g at 54. The district court credited Officer Cooney’s
testimony that he towed the motorcycle because of Nevatt’s lack of insurance, the
motorcycle being in the street, Nevatt’s access to the motorcycle, and Officer
2
Nevatt does not challenge the lawfulness of the traffic stop.
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Cooney’s inability to jail Nevatt or separate Nevatt from the motorcycle. Officer
Cooney explained that he towed Nevatt’s motorcycle based on
all the contributing factors that I previously expressed, for him having
no endorsement, him admitting that he can’t safely operate the
motorcycle because he’s just learned on or just bought it and hasn’t
officially learned on it yet. Him also not having any proof of insurance
and the motorcycle being still in the street where him not going to jail,
he technically has access to it and it creates a safety hazard if we were
to just leave and trust that he would not come back to it.
Id. at 63–64 (emphases added). Officer Cooney confirmed that he did not “consult
with Copley or [Detective Copley’s partner] about that decision” “[b]ecause at that
point it was my traffic stop and, you know, that was—they had their side of it and
then I had my obligations and the side of my stop.” Id. at 57.
The district court did not clearly err when it credited Officer Cooney’s
testimony. Based on that testimony, a lawful basis existed for the impoundment of
Nevatt’s motorcycle. “The authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and convenience is beyond
challenge.” South Dakota v. Opperman, 428 U.S. 364, 369 (1976); see also Harris,
795 F.3d at 823. Officer Cooney testified that the motorcycle was “in the street” and
“create[d] a safety hazard.” Suppression Hr’g at 64. Nevatt could not lawfully remove
it because he lacked insurance.
The next question is whether Officer Cooney complied with the Springfield
Police Department’s inventory search policy. The district court concluded “that the
inventory search of the motorcycle was conducted pursuant to standardized police
procedures.” R. & R. at 10.
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“Even if [Officer Cooney] fail[ed] to adhere to standardized procedures, the
search is nevertheless reasonable provided it is not a pretext for an investigatory
search.” Taylor, 636 F.3d at 465. Nevatt argues that the following facts show pretext:
the motorcycle was lawfully parked alongside the road, the vehicle was not a hazard
to other drivers, the vehicle was not at risk of being stolen or vandalized, he was
released at the scene, he was not under the influence, he was not cited for the lack of
proper licensing or insurance, and he was not found to have any drugs in his
possession. But the district court credited Officer Cooney’s version of events.
Detective Copley requested that Officer Cooney conduct the traffic stop based on a
belief that Nevatt was impaired. Although Nevatt was not impaired, a records check
revealed that Nevatt lacked the proper endorsement and had no insurance. Officer
Cooney decided to tow the motorcycle because it was in the street and was a safety
hazard. Because Nevatt lacked insurance, he could not lawfully drive the motorcycle.
Officer Cooney did write Nevatt a citation for operating the motorcycle without the
proper license endorsement. Officer Cooney did not consult with the detectives before
deciding to have Nevatt’s vehicle towed and searched. With these facts, the district
court concluded that the inventory search was not a pretext for an investigatory
search. We affirm this conclusion.
Accordingly, we hold that the inventory search of Nevatt’s motorcycle was
lawful; therefore, the district court did not err in denying Nevatt’s motion to suppress
evidence.
B. Substantive Reasonableness
Nevatt argues that his 460-month sentence is substantively unreasonable
because the court failed to adequately consider the 18 U.S.C. § 3553(a) factors. He
contends that in explaining the sentence, the district court conceded that it
disregarded the need to avoid unwarranted sentencing disparity. Additionally, he
asserts that the district court erroneously failed to consider mitigating factors raised
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in the PSR and in his sentencing memorandum, including his significant mental
health and emotional issues that have been exacerbated by a history of drug abuse.
Nevatt’s Guidelines range was life imprisonment, but the district court
sentenced him to 460 months’ imprisonment. “[W]hen a district court has sentenced
a defendant below the advisory [G]uidelines range, it is nearly inconceivable that the
court abused its discretion in not varying downward still further.” United States v.
Merrell, 842 F.3d 577, 585 (8th Cir. 2016) (internal quotation omitted). The record
shows that the district court discussed the § 3553(a) factors. As to the need to avoid
unwarranted sentencing disparity, the district court did not disregard it, but it instead
accorded it little weight in relation to other factors, including Nevatt’s criminality.
“The court’s emphasis on the defendant’s criminal history and the nature of the
offense falls within a sentencing court’s substantial latitude to determine how much
weight to give the various factors under § 3553(a).” United States v. Timberlake, 679
F.3d 1008, 1012 (8th Cir. 2012) (internal quotation omitted). Furthermore, while the
district court did not expressly discuss Nevatt’s mental health and emotional issues
as mitigating factors, the court indicated that it had reviewed Nevatt’s sentencing
memorandum that identified these mitigating factors. “Because these mitigating
factors were presented both in his sentencing memorandum and in his arguments at
the sentencing hearing, we may presume that the court considered them and found
them unpersuasive.” United States v. Hager, 768 F. App’x 583, 585 (8th Cir. 2019)
(per curiam) (citing Timberlake, 679 F.3d at 1012). Nevatt “has failed to establish that
[his] is the rare case in which a decision not to vary further amounted to an abuse of
discretion.” Merrell, 842 F.3d at 585.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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