United States v. Rudolph Jackson , 682 F.3d 448 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0181p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-3688
v.
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Defendant-Appellant. -
RUDOLPH V. JACKSON,
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Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:10-cr-407-1—Dan A. Polster, District Judge.
Argued: June 8, 2012
Decided and Filed: June 19, 2012
Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Wendi L. Overmyer, FEDERAL PUBLIC DEFENDER’S OFFICE, Akron,
Ohio, for Appellant. Daniel R. Hurley, ASSISTANT UNITED STATES ATTORNEY,
Ann Arbor, Michigan, for Appellee. ON BRIEF: Wendi L. Overmyer, FEDERAL
PUBLIC DEFENDER’S OFFICE, Akron, Ohio, for Appellant. Daniel R. Hurley,
ASSISTANT UNITED STATES ATTORNEY, Ann Arbor, Michigan, for Appellee.
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OPINION
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GRIFFIN, Circuit Judge. Defendant Rudolph Jackson conditionally pled guilty
to the charge of being a felon in possession of a firearm and ammunition in violation of
18 U.S.C. § 922(g)(1), reserving the right to appeal the district court’s denial of his
motion to suppress the firearm discovered in the vehicle he was driving. On appeal, he
1
No. 11-3688 United States v. Jackson Page 2
challenges the legality of the traffic stop and inventory search of the vehicle that led to
his arrest. For the reasons that follow, we affirm.
I.
During a roll call meeting on the afternoon of August 17, 2010, supervisors at the
Akron, Ohio, Police Department (“APD”) issued a “BOLO” (be on the lookout) alert for
a suspect involved in a recent nightclub shooting. The suspect was thought to be driving
a black Chevrolet Tahoe with yellow stripes and chrome wheels. Almost immediately
after starting his afternoon shift in a marked patrol car, APD Officer Troy Meech, who
was familiar with the suspect, spotted a vehicle that resembled the Tahoe. It was
traveling in the opposite direction on Rhodes Avenue, a two-lane residential street. The
yellow stripes and the chrome wheels on the SUV caught Officer Meech’s attention. As
soon as it passed by him, Officer Meech looked in his rear-view mirror and saw the
brake lights come on, “as if [the driver] was waiting to see what [Meech] was going to
do.” Meech turned around and followed the SUV while attempting to read a temporary
license tag on the back of it. As he did so, the driver made a quick left turn into the
driveway of a house at 83 Rhodes Avenue without using a turn signal. After observing
this traffic infraction, Officer Meech activated his lights and siren and performed a
traffic stop. He radioed the vehicle’s license number to APD dispatch and exited his
patrol car.
As Officer Meech approached the vehicle, the driver, later identified as defendant
Jackson, opened his door. Officer Meech saw that Jackson and his passenger, Kenard
Gay, were each holding open, partially consumed bottles of Heineken beer as they sat
in the vehicle. Officer Meech asked Jackson whether he had a valid driver’s license.
Jackson responded that he did not.
Officer Meech testified at the suppression hearing that once he saw Jackson
sitting in the SUV, he realized that neither Jackson nor the vehicle had any connection
with the incident that precipitated the BOLO alert. The vehicle was a dark blue and
No. 11-3688 United States v. Jackson Page 3
yellow GMC Yukon, an SUV very similar in style and design to the Chevy Tahoe.1
Officer Meech nonetheless removed Jackson from the vehicle and placed him under
arrest for having an open container of an alcoholic beverage in a motor vehicle. He then
conducted a background check on both Jackson and Gay. APD dispatch reported that
Jackson not only had a suspended license, but also an outstanding warrant for his arrest.
Gay, too, had a suspended license.
Officer Meech determined that in accordance with APD’s Vehicle Impoundment
and Inventory Procedure Policy (“the APD Policy”), the Yukon would have to be towed
from the scene because it was illegally parked in the driveway of a residence with no
discernible connection to either Jackson or Gay,2 and neither Jackson nor Gay could
drive it to another location in light of their consumption of alcohol and suspended
licenses.
Before releasing the vehicle to the towing company, Officer Meech performed
an on-site inventory search of the interior and exterior of the Yukon, pursuant to the
APD Policy. Inside the vehicle was a six-pack of Heineken beer with two opened
bottles. While checking under the driver’s seat, Officer Meech noticed that “part of the
carpet on the floor board had been ripped up and just appeared to be like loose as if
someone could have put something underneath there. I went to lift it up and noticed
there was [a] loaded .380 Cobra handgun on the floor of the car.” He further explained:
Where the emergency brake pedal is and the brake pedal, the carpet that
goes underneath that, you know how they kind of fold it over, and I mean
it looks like it’s supposed to look. That was tor[n] up and the carpet was
like pushed up against it so the extra carpet was just up against the –
under the dash there. It was obvious it had been tor[n] up.
1
Subsequent to Jackson’s arrest, authorities determined that Jackson’s fiancée purchased the
vehicle on the morning of August 17, 2010, and placed a thirty-day license tag on the rear of the vehicle.
2
The addresses given by Jackson and Gay differed from the Rhodes Avenue address where they
stopped, Jackson did not tell Officer Meech that he had permission to park in the driveway or indicate that
he knew the homeowners, and there was no contact with the homeowners.
No. 11-3688 United States v. Jackson Page 4
Officer Meech testified that there were no nails or fasteners to remove from this
area, and in the process of lifting the carpet, he did not damage it in any way. He
“simply checked under [the carpet]” by lifting the loose flap and discovered the loaded
firearm. When asked about the gun, Jackson claimed that he did not know it was in the
vehicle, stating that he had just purchased the car a couple of weeks ago. Officer Meech
informed Jackson that the firearm would be tested for fingerprints and asked him if his
fingerprints would be found on it, to which Jackson replied, “they might be.” After
Jackson’s arrest, Officer Meech issued him a traffic citation for driving with a suspended
license and failure to use a turn signal.3 The vehicle was then towed and impounded.
As a result of the traffic stop and discovery of the firearm, Jackson was indicted
in federal district court on one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Before trial, he moved to suppress the firearm,
arguing that the traffic stop and inventory search were illegal. The district court
conducted an evidentiary hearing, at which Officer Meech was the lone witness. The
court found that because there was no indication in the record that the BOLO
information came from a credible source, it would not rely upon Officer Meech’s
suspicion of criminal activity as a lawful basis for the stop. The district court held,
however, that the traffic violation of failure to signal, albeit “a minor one,” provided an
independent basis to justify the stop. The court also determined that there were three
legitimate grounds for Jackson’s arrest – the open container violation, driving with a
suspended license, and the outstanding arrest warrant. The court further found that it
was necessary for the APD to tow the Yukon because Jackson and Gay had suspended
licenses and had consumed alcohol, and because the Yukon was illegally parked in
someone else’s driveway. Finally, the court held that Officer Meech’s inventory search
did not exceed the bounds of a reasonable search under the Fourth Amendment. It
therefore denied Jackson’s motion to suppress.
Jackson subsequently pled guilty to the charge but reserved his right to appeal
the denial of his suppression motion. The district court imposed a below-Guidelines
3
Gay was ticketed for an open-container violation and released at the scene.
No. 11-3688 United States v. Jackson Page 5
sentence of forty-eight months of imprisonment, followed by three years of supervised
release. Jackson timely appeals, challenging the district court’s decision denying his
motion to suppress.
II.
When reviewing the district court’s ruling on a motion to suppress, we review
findings of fact for clear error and legal conclusions de novo. United States v. Tackett,
486 F.3d 230, 232 (6th Cir. 2007). “When the district court has denied the motion to
suppress, we review all evidence in a light most favorable to the Government.” United
States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006) (citation and internal quotation marks
omitted).
Jackson first challenges the legality of the traffic stop, arguing that the stop was
in reality based upon Officer Meech’s unreasonable suspicion, originating from the
unreliable BOLO alert, that he was involved in criminal activity. We disagree.
“An ordinary traffic stop by a police officer is a ‘seizure’ within the meaning of
the Fourth Amendment. Accordingly, any evidence seized during an illegal traffic stop
must be suppressed as fruits of the poisonous tree.” United States v. Blair, 524 F.3d 740,
748 (6th Cir. 2008) (citations and internal quotation marks omitted). It is well
established that a police officer lawfully may stop a car when he has probable cause to
believe that a civil traffic violation has occurred, or reasonable suspicion of an ongoing
crime. Id. at 748; see also United States v. Street, 614 F.3d 228, 232 (6th Cir. 2010)
(“[T]here is nothing unreasonable about stopping a vehicle whose driver has just
committed a traffic violation.”) (citing Whren v. United States, 517 U.S. 806, 810
(1996)). The fact that a traffic violation is not an arrestable offense does not divest the
police of authority to stop the vehicle. Street, 614 F.3d at 232 (upholding the legality
of a traffic stop made for a seatbelt violation); United States v. Anderson, 458 F. App’x
440, 442 (6th Cir. 2012) (holding that a license-plate violation provided probable cause
to make a traffic stop).
No. 11-3688 United States v. Jackson Page 6
A driver’s failure to use a turn signal provides probable cause to justify a traffic
stop irrespective of the officer’s subjective intent. See Whren, 517 U.S. at 819 (holding
that vehicle was properly stopped for, inter alia, failure to signal in violation of a District
of Columbia traffic code); United States v. Ware, No. 09-4419, 2012 WL 695452, at
*5 (6th Cir. Mar. 1, 2012) (unpublished) (“[T]he district court determined that the
detectives had probable cause to stop the car when Ware committed a traffic violation
by turning right without using a turn signal. Because probable cause existed for the
traffic stop, the district court correctly held that the officers’ subjective or pretextual
motivation for making the stop was not relevant under Whren[.]”); United States v.
Miller, 413 F. App’x 841, 843 (6th Cir. 2011) (“[E]ven if [the officer] used the failure
to signal as a pretext to initiate a traffic stop of an otherwise-suspicious vehicle, this fact
does not undermine the probable cause that existed to make the stop if [the defendant]
failed to signal his turn.”); United States v. Akram, 165 F.3d 452, 455 (6th Cir. 1999)
(“[The officer] had probable cause to stop the truck because it failed to signal before
changing lanes, in violation of Ohio law.”).
Here, as the district court properly held, regardless of whether Officer Meech had
reasonable suspicion to stop Jackson’s vehicle based on its similarity to the BOLO
suspect’s vehicle, the traffic stop was nonetheless constitutional because Officer Meech
observed Jackson making a left turn without activating his turn signal, in violation of
Ohio law and Akron ordinances. See O.R.C. 4511.39(A); Akron, OH, Code of
Ordinances, title VII, ch. 72, art. 1, § 72.15. Jackson’s Fourth Amendment rights were
not implicated by Officer Meech’s decision to follow the Yukon because it matched the
BOLO description. Officer Meech did not effectuate a seizure until he activated the
lights and siren of the patrol car, which did not occur until after Jackson made the illegal
left turn into the driveway. At that point, Meech had an adequate legal basis to detain
Jackson to investigate the infraction. United States v. Hill, 195 F.3d 258, 269 (6th Cir.
1999). The district court found Officer Meech’s uncontradicted testimony in this regard
to be credible, a conclusion entitled to deference on appeal. United States v. McCauley,
548 F.3d 440, 447 (6th Cir. 2008). We find no error in the district court’s determination
that the traffic stop was lawful.
No. 11-3688 United States v. Jackson Page 7
To the extent Jackson challenges his arrest, his argument is meritless. He
contends that once Officer Meech realized that he was not the BOLO suspect, the traffic
stop should have ended. However, he admits that Officer Meech’s observation of him
with an open container of beer in hand “complicates matters.” This is an
understatement. There existed not one, but three, independent bases to arrest Jackson:
his possession of an opened alcoholic beverage while operating a motor vehicle, in
violation of O.R.C. § 4301.62(B)(4); his driving with a suspended license; and the
existence of an active warrant for his arrest. See, e.g., United States v. Murphy, 278 F.
App’x 577, 581 (6th Cir. 2008) (“[The deputy] . . . had probable cause to arrest [the
defendant], having discovered after the lawful stop of the vehicle that [the defendant]
smelled of alcohol, had an open container of alcohol in plain view on the truck’s console
and more beer in a sack inside the truck, and had neither a valid driver’s license nor
insurance.”); United States v. Black, 240 F. App’x 95, 101-02 (6th Cir. 2007) (“The
officers . . . had probable cause to arrest [the defendant] for driving while intoxicated,
possessing an open alcoholic beverage container in an automobile, and driving with a
suspended license.”).
Jackson further contends that Officer Meech’s decision to tow the vehicle from
the scene was unreasonable under the circumstances. He points out that (1) the APD
Policy informs officers that “having the authority to tow does not mean having the need
to tow,” (2) in some circumstances, the Policy allows improperly licensed drivers to
drive away in their vehicles after receiving a citation, and (3) the Akron Code of
Ordinances allows a vehicle to remain on private property with permission of the
property owner. (Akron Code of Ord. § 70.50(B), at A-9). Jackson maintains that
Officer Meech failed to follow the ordinance and APD Policy by ordering that the
Yukon be towed without first contacting the Rhodes Avenue homeowner or the owner
of the Yukon (Jackson’s fiancée). However, we rejected a similar argument in United
States v. Kimes, 246 F.3d 800 (6th Cir. 2001), stating:
Discretion as to impoundment is permissible “so long as that discretion
is exercised according to standard criteria and on the basis of something
other than suspicion of evidence of criminal activity.” Colorado v.
No. 11-3688 United States v. Jackson Page 8
Bertine, 479 U.S. 367, 375–376, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987).
Here, as we gather, V.A. police sometimes permitted vehicles to be
picked up by a driver’s friends and relations if they were already present
or if the driver could contact them and get them to come to the facility
promptly. Mr. Kimes suggests that rather than towing his truck, the
officers should have taken it upon themselves to call his wife and ask her
to get the vehicle. He cites no authority compelling such a conclusion,
and we are aware of none.
Id. at 805. See also United States v. Pryor, 174 F. App’x 317, 320 (6th Cir. 2006)
(holding that the impoundment of the defendant’s vehicle was valid under standard
police procedure where the car was parked on private property at an apartment complex,
the defendant did not live there, he could not obtain permission from the property owner
because the manager’s office was closed, and he could not turn the keys over to his wife
because she did not appear on the scene until after the police had concluded the
inventory search).
Jackson and Gay were not lawful drivers, and neither man had a known
connection to the owners of the private residence at 83 Rhodes Avenue, leaving no
reasonable alternative but to tow the Yukon. Officer Meech’s action conformed to the
APD Policy, which provides that “[t]he owner may allow a properly licensed driver to
drive or secure his vehicle in a legal parking spot. . . . If this is not possible, the officer
should tow if the operator has . . . [a] suspended license, properly verified by the
officer.” (Emphasis added.) In addition, the Akron Code of Ordinances provides that
police officers are authorized to remove and impound a vehicle when any vehicle “is left
on private property without the permission of the person having the right to the
possession of the property,” or “is left unattended due to the removal of an ill, injured
or arrested operator,” or “has been operated by any person who is driving without a
lawful license or while his license has been suspended or revoked.” Akron Code of Ord.
§ 70.50(B), (G), and (I). As the district court recognized, it was simply not an option to
allow Jackson or Gay to drive the vehicle from the scene.
Next, Jackson argues that Officer Meech’s inventory search was unconstitutional.
Jackson seeks to distinguish a vehicle’s floor carpeting from a glove compartment,
No. 11-3688 United States v. Jackson Page 9
container, or floor mat, arguing that it is a fixture that is out of the bounds of a
reasonable inventory search. He contends that the mere fact that an older vehicle may
have worn or damaged carpeting – particularly in an area with above-normal wear and
tear – does not justify exploration under the carpet. The search, however, in these
particular circumstances did not violate the Fourth Amendment.
It is settled law that the police may conduct an inventory search of an automobile
that is being impounded without running afoul of the Fourth Amendment. United States
v. Smith, 510 F.3d 641, 650 (6th Cir. 2007). “In order to be deemed valid, an inventory
search may not be undertaken for purposes of investigation, and it must be conducted
according to standard police procedures.” Id. at 651 (citation and internal quotation
marks omitted). A general written inventory policy does not grant officers carte blanche
when conducting a search; rather, it must be sufficiently tailored to only produce an
inventory. Tackett, 486 F.3d at 232. Thus, “[i]n conducting an inventory search,
officers do not enjoy their accustomed discretion; they simply follow the applicable
policy.” Id. “Nonetheless, officers may exercise some judgment based on concerns
related to the purposes of an inventory search; for example, they may decide to open
particular containers if they cannot determine the contents.” Id. (citation and internal
quotation marks omitted). “When a legitimate search is underway, and when its purpose
and its limits have been precisely defined, nice distinctions between closets, drawers,
and containers, in the case of a home, or between glove compartments, upholstered seats,
trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in
the prompt and efficient completion of the task at hand.” Colorado v. Bertine, 479 U.S.
367, 375 (1987) (citation and internal quotation marks omitted).
Officer Meech’s testimony at the suppression hearing establishes that he acted
within the parameters of the APD Policy, which provides that an inventory search shall
be conducted in the following manner:
a. Inventory all interior and exterior areas of an impounded vehicle
utilizing the checklist on the report. If possible, locked vehicle
doors should be opened and the inside of the vehicle inventoried.
No. 11-3688 United States v. Jackson Page 10
If the trunk or glove compartment is locked, do not open it unless
the key is readily available.
b. Packages, suitcases, or other unlocked containers within the
vehicle will be opened and inventoried. If the key is readily
available for any locked container, or the locked container can be
opened by other means without causing damage to the container,
it will be opened and inventoried.
c. Intrusion into locked containers or secured areas that cannot be
opened without causing damage shall be made only after
receiving permission from the owner or obtaining a search
warrant.
The Policy clearly authorizes a search of “all interior . . . areas.” If Officer
Meech had “ripped up” the carpet, as Jackson asserts, his actions might give us pause.
However, that did not occur in this case. Officer Meech testified that the carpet was
already “ripped up” – the very feature that drew his attention to it. He was clear in his
testimony that he simply lifted the already loose flap of carpet that appeared to have been
tampered with, based on his reasonable belief that it might be concealing a hiding place
for items. The district court credited his testimony and further noted that Officer Meech
did not search under all of the vehicle’s carpeting, but just the portion that appeared to
have been disturbed. The district court did not err in concluding that the inventory
search was constitutional.
In United States v. Edwards, 577 F.2d 883 (5th Cir. 1978), the Fifth Circuit Court
of Appeals affirmed the constitutionality of an inventory search involving nearly
identical circumstances:
While searching the floor region near the power seat lever between the
driver’s seat and the door, officer Williams noticed that two separate
parts of the carpet overlapped, concealing an area where property could
be secreted. The officer then lifted the loose “carpet flap”, revealing the
envelopes containing the stolen checks. We conclude that such action by
the officer was reasonable under the circumstances of this case. We
emphasize that the officer merely lifted the loose flap and did not remove
any nails or fasteners, or in any other way separate the carpet from the
floor of the automobile. Additionally, a short time earlier the officer had
observed the defendant make a suspicious move toward the floor of the
automobile. The officer could reasonably conclude that property may
No. 11-3688 United States v. Jackson Page 11
have been concealed beneath the carpet flap. He may have been in
dereliction of duty had he not searched such an obvious place of
concealment.
Id. at 894.
The Fifth Circuit emphasized that “we do not in any way condone searching
under the carpeting in every case, much less the ripping apart of an automobile, or any
part thereof, under the guise of an inventory search. The intrusion in each case must be
limited in scope to the private and public interests which underlie the inventory.” Id. at
895. We agree with the court’s view that “in conducting an inventory search pursuant
to standard police practice, an officer may search those places within an automobile
where, under the facts of the particular case, he can reasonably conclude that personal
property may be located.” Id. And, as in Edwards, Officer Meech’s inventory search
was conducted consistent with Jackson’s Fourth Amendment rights and the APD Policy.
III.
For the reasons set forth above, we affirm the judgment of the district court.