UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 8, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
JOSEPH FRANCIS ELLIOT, DEFENDANT.
The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO SUPPRESS EVIDENCE
Defendant Joseph Francis Elliot moves to suppress evidence on grounds that (1) the officer lacked probable cause or reasonable suspicion to stop the vehicle driven by Defendant and (2) the officer unlawfully searched the vehicle. The Government opposes the motion. Having carefully considered the moving papers, two rounds of supplemental briefing, the evidence presented at the time of the evidentiary hearing, applicable authorities, and the court record, the court denies the motion to suppress evidence.
The following background statement is derived from the evidence presented at the time of the evidentiary hearing conducted on April 27, 2009. At around 9:00 a.m. on December 8, 2008 Carlsbad Police Officer Severy observed a black Silverado pickup truck with Maryland plates and noticed dark tinting on the side windows and a cracked windshield. Each observed defect is an infraction of Cal. Vehicle Code §§ 26708 and 26710, respectively. The officer initiated a traffic stop. The driver, Defendant Elliot, did not have his driver's license with him but provided the officer with his California driver's license number and the vehicle's Maryland registration, showing Defendant as the registered owner.
Officer Severy conducted a records check which revealed (1) the driver's license of Defendant had been and still was suspended and (2) Defendant's criminal history. Officer Severy then requested Defendant to exit the vehicle and to sit on the curb. Officer Severy sought to remove and store the vehicle pursuant to Vehicle Code §22651(p) - unlicensed driver.*fn1 Officer Severy asked Defendant for consent to search the vehicle, which was the officer's standard operating procedure even in those circumstances where he believed consent was unnecessary. Defendant declined to give his consent to search the vehicle.
Officer Severy testified that he then conducted an inventory search pursuant to Carlsbad Police Department Policy Manual Section 510.4 and discovered a semi-automatic handgun and four ammunition clips in a non-factory compartment located in the truck's center console. Officer Severy testified that he lifted-up a loose cup holder from the center console of the truck. He further testified that although the cup holder is normally fastened to the console, his experience was that individuals can place items, including contraband, in the space underneath the cup holder. Following discovery of the weapon, Defendant was arrested, handcuffed, and transported to the Carlsbad Police Station.*fn2
A criminal records check revealed that Defendant, on April 28, 1997, was convicted of possession and sale of a controlled substance in violation of H & S §11378. On January 8, 2009 Defendant was charged in a two count federal indictment with being a felon in possession and possession of a firearm with an obliterated serial number. By means of the present motion, Defendant moves to suppress evidence of the handgun.
Lack of Probable Cause to Stop the Vehicle
Defendant first contends that the Government will not be able to establish that the tinting on the windows or the alleged crack in the windshield violated the vehicle codes. (Motion at p.3:8-9). This argument is not persuasive. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United states, 517 U.S. 806 (1996). An investigatory stop; is also justified where the officer has reasonable suspicion of wrongdoing. United States v. King, 244 F.3d 736, 738 (9th 2001). Here, Officer Severy had both probable cause and reasonable suspicion to stop the vehicle. He testified that the tinting on the side windows and the cracked windshield violated Cal. Vehicle Code §§ 26708 and 26710, respectively. The Government also produced photographs of the vehicle demonstrating that the side windows were "tinted" darker than permitted by law, and that the windshield had extensive cracks. (Gov't Exhs. 4, 6 - 14).
In sum, the court denies the motion to suppress based upon lack of probable cause or reasonable suspicion to stop the vehicle.
Unlawful Search of the Vehicle
Defendant argues that the search of the vehicle was an unlawful search incident to arrest under Arizona v. Gant, --U.S. --, 2009 WL 1045962 (April 21, 2009) and, alternatively, an unlawful inventory search. As the search of the vehicle was conducted pursuant to established inventory procedures adopted by the Carlsbad Police Department, the court does not reach the search incident to arrest issue.
An inventory search is an incidental administrative step following a decision to remove a vehicle for either storage or impound.*fn3 Illinois v. LaFayette 462 U.S. 640, 643-644 (1983). An inventory search of an impounded or stored vehicle is reasonable under the Fourth Amendment provided law enforcement has a standardized policy regarding the impound/storage decision and search. Colorado v. Bertine, 479 U.S. 367, 374-375 (1987).
As the United States Supreme Court has recognized, "inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment." Colorado v. Bertine, 479 U.S. at p. 371. "In the interests of public safety and as part of what the Court has called 'community caretaking functions,' [citation] automobiles are frequently taken into police custody." South Dakota v. Opperman, 428 U.S. at p. 368. "[I]t is undisputed that once a vehicle has been impounded, the police may conduct an inventory search." United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir.1989). "[L]ocal police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody [citation]; the protection of the police against claims or disputes over lost or stolen property [citation]; and the protection of the police from potential danger [citation]. The practice has been viewed as essential to respond to incidents of theft or vandalism." South Dakota v. Opperman, 428 U.S. at 369. Anything observed during the inventory search is admissible against the defendant. Id. at 376.
In evaluating the reasonableness of inventory searches under the Fourth Amendment, the Supreme Court "has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents." South Dakota v. Opperman, 428 U.S. at p. 373. "A so-called inventory search is not an independent legal concept but rather an incidental administrative step following [impound]...." Illinois v. LaFayette, 462 U.S. 640, 644 (1983). The search should be carried out pursuant to standardized procedures, as this would "tend to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function." South Dakota v. Opperman, 428 U.S. at 375. "The policy or practice governing inventory searches should be designed to produce an inventory. The individual 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." Florida v. Wells, 495 U.S. 1, 4 (1990). "[A]n inventory search is reasonable under the Fourth Amendment only if it is done in accordance with standard procedures that limit the discretion of the police." Id. at 8.
Here, the court concludes that (1) the vehicle was to be properly towed and stored and (2) Officer Severy conducted a valid inventory search pursuant to Carlsbad Police Department Policy Manual Section 510.4. First, California courts have repeatedly held that §22651 provides police officers with the clear authority to impound or store vehicles. People v. Green, 46 Cal.App.4th 367 (1996). Second, the inventory search was conducted in compliance with Carlsbad Police Department Policy Manual Section 510.4. That policy provides:
All property in a stored or impounded vehicle shall be inventoried and listed on the vehicle storage form. This includes the trunk and any compartments or containers, even if closed and/or locked. Members conducting inventory searches should be as thorough and accurate as practical in preparing an itemized inventory. These inventory procedures are for the purpose of protecting an owner's property while in police custody, to provide for the safety of officers, and to protect the Department against fraudulent claims of lost, stolen, or damaged property. (Gov't Exh. 22). Officer Severy testified that he followed the vehicle inventory policy of the Carlsbad Police Department. His testimony also establishes that the inventory search at issue was objectively reasonable under the Fourth Amendment. Officer Severy commenced the inventory search by jiggling the cup holder of the vehicle. Based upon his past experience with this type of console configuration, and noting the looseness of the cup holder, he simply lifted up and removed the cup holder without the use of any tools. This is not the case, as argued by Defendant, where Officer Severy used the inventory search as a pretext to dismantle the vehicle in an effort to discover incriminating evidence. To the contrary, Officer Severy was merely accessing a compartment which was readily available to Defendant and in which he had reposed a firearm. Defendant appears to argue that officers may only search the "glove compartment, or other compartments designed by the manufacturer to be used to hold items, bags, purses, [and] suitcases." (Supp. Memo at p.4:9-10, Docket No. 28). Here, the space under the cup holder functioned as the equivalent of a glove compartment. In fact, Defendant could access the cup holder and retrieve the firearm even easier than from the glove compartment where he would have to reach from the drivers seat to the glove compartment located on the passenger side of the vehicle's interior. Such an easily accessible non-factory compartment, as modified by Defendant by removing all fasteners from the cup holder, is the functional equivalent of a glove compartment.
With respect to Defendant's argument that the dismantling of the console invalidated the inventory search, the court notes again that no disassembly was required to remove the cup holder. Officer Severy simply lifted up and removed the cup holder. The cup holder was not attached by any fastener requiring disassembly. Defendant also argues that the inventory search was a pretext to search for evidence of a crime because Officer Severy did not list all the property located within the passenger compartment of the vehicle. Officer Severy testified that he lists groupings of items and noted, consistent with the inventory policy to be as "thorough and accurate as practical in preparing an itemized inventory," (Gov't Exh. 22), and that it is not always practical to list every item found within a vehicle when there are numerous items. While the inventory list could have been more detailed, this fact does not undermine the validity of the inventory search.
In sum, the motion to suppress is denied in its entirety.
IT IS SO ORDERED.