United States v. Kurt Ernest Hellman

556 F.2d 442, 1977 U.S. App. LEXIS 12740

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 1977
• Docket: 76-3268
• Status: Published

Opinions

OPINION

MERRILL, Circuit Judge:

This appeal is taken from judgment of conviction of several counts of mail fraud involving the use of credit cards, and of using a false and assumed name in promotion of a scheme to defraud, all in violation of 18 U.S.C. §§ 1341 and 1342. The sole issue presented is whether denial of a motion to suppress evidence was error.

Appellant was arrested in Eugene, Oregon, pursuant to a parole violator warrant. At the time of arrest his car was parked partially blocking a driveway of an oil company’s fuel yard. The car was issued a citation for blocking the driveway and impounded on the spot. Officers then immediately searched the car and took an inventory of its contents. The car was then towed to a private impounding facility. Two weeks later a warrant was obtained for the search of appellant’s business premises, and a week after that a second warrant was issued for search of a brief case which had been discovered in the search of the car. Evidence obtained at the time of the inventory and from both warranted searches was introduced at trial. Appellant contends that all three searches were unreasonable: the search of the car, since it was without warrant; the other searches, since the affidavits on which the warrants issued were insufficient.

1. The Inventory Search of the Car

A Eugene police department regulation (Policy and Procedure Statement No. 17) provides for impounding of vehicles when they are parked in violation of law, “such as blocking * * * driveways,” and where the owner is arrested and there is no one to whom the vehicle can be released. Nothing is said in the regulation respecting the taking of an inventory of the car’s contents or the safeguarding or storage of such contents. At the hearing on motion to suppress, the officer who had searched the car testified that one of his motives in citing the car and impounding it was to justify an investigatory search; that he had been a detective for approximately four years and had issued a similar citation on only one other occasion; that the citation on that occasion, too, has been for the purpose of searching the car. The magistrate, entertaining the motion to suppress, ruled that on impounding the car the officer had a “duty to keep a record of the property impounded so that it can be returned to the owner”; that in these circumstances the motive of the officer in inventorying the contents was irrelevant. The motion to suppress the items seized from the car was denied. The district court agreed and the items in question were received in evidence.

On appeal, the government contends that the only question is whether the impounding of the car was pursuant to standard police procedure. If it was, it is contended, then it follows as matter of law that an inventory was proper and that the search was reasonable under the fourth amendment.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), an automobile was impounded by the police of Vermillion, South Dakota, for overtime parking in a restricted zone. The car was taken to the city impound lot. From the outside of the car, a police officer observed a watch on the dashboard and other items of personal property in plain view. The officer then ordered the car unlocked and the contents of the car inventoried pursuant to police regulation. Id. at 380 n.6, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (Powell, J., concurring). The Court held the inventory search to be reasonable under the fourth amendment. The Court noted that the practice followed by the police in Vermillion in inventorying and safeguarding the contents of impounded cars was standard police procedure generally followed throughout the country.

The government here contends that since inventorying of impounded cars is, throughout the country, the practice generally followed by the police, it necessarily follows that it was reasonable here; that the only question, therefore, is whether the impounding itself was proper.¹ We cannot agree. Opperman does not go this far. Quite the contrary is suggested. The Court states:

“[T]here is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.”

428 U.S. at 376, 96 S.Ct. at 3100 (footnote omitted).

Here it is clear from the testimony of the searching officer that the citation, the impounding and the inventorying all were for “an investigatory police motive.” This alone is sufficient to conclude that the warrantless search of the car was unreasonable.²

But even if an investigatory motive was not shown, our decision would be the same because the inventorying of impounded ears was not shown to be a routine practice and policy of this police department, as was the case in Opperman? Certainly the record is clear that it was not the routine practice of the searching officer. It is the inventorying practice and not the impounding practice that, if routinely followed and supported by proper noninvestigatory purposes, could render the inventory a reasonable search under Opperman. The fact that other police departments routinely follow such a practice may give support to the proposition that such a practice, if locally followed, is reasonable. It does not, however, render reasonable a search where the inventorying practice is not locally followed and the search, thus, is a departure from local practice. A locally followed practice gives some assurance that a particular car was not singled out for special searching attention. Absent such assurance some special reason for the taking of safeguarding or security precautions that are not customarily taken should exist if the intrusion resulting from the taking of such precautions is to be rendered reasonable under the fourth amendment.^{3 4}

We conclude that the search of the car was in violation of the fourth amendment, and that it was error not to grant the motion to suppress evidence discovered in the course of that search.

2. The Warranted Searches

As to the briefcase, the search of the car produced it and the unreasonableness of that search tainted the seizure and subsequent search of the briefcase as well. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The motion to suppress should have been granted as to the contents of the briefcase.

As to the search of appellant’s premises, appellant contends that the affidavit on which the warrant issued was insufficient under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit was made by a Eugene police officer assigned to the detective division and responsible for investigating fraud cases. The affidavit occasionally resorts to such language as “through my own investigation I learned * * It also relates information obtained from a special investigator for Mastercharge Western States Bank Card Association, using such language as “Mr. Conlin determined through his own independent investigation * * *.” Appellant contends that in these respects the affidavits do not set forth facts from which a magistrate could make an independent judgment as to the reliability of the information. We disagree. The information to which such language referred was of the kind that a routine check by experienced investigators would disclose, such as that certain information supplied in applying for credit cards (e.g., names and addresses) was false. That such information was obtained from reliable sources can readily be inferred. In addition, the affidavit contained highly detailed information setting forth the nature and underlying circumstances of the affiant’s personal investigation. Cf. Rutherford v. Cupp, 508 F.2d 122, 123 (9th Cir. 1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975); United States v. Burke, 517 F.2d 377, 380-81 (2d Cir. 1975). We conclude that it was not error to deny suppression as to the evidence obtained from appellant’s premises.⁵

Reversed and remanded with instructions that the motion to suppress be granted as to evidence obtained from the search of the car and the briefcase, and for further proceedings.

1 . We assume, for the purposes of discussion, without deciding, that the impounding was proper in this case.

2 . Our analysis is confined to situations where an automobile search is conducted without a warrant and without probable cause. The “automobile exception” to the warrant requirement arises where there is probable cause and exigent circumstances due to an automobile’s mobility. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); see generally Moylan, The Inventory Search of An Automobile: A Willing Suspicion of Disbelief, 5 U.Balt.L.Rev. 203 (1976).

3 . It was also the case in decisions of this court involving the taking of an inventory. In United States v. Friesen, 545 F.2d 672, 673-74 (9th Cir. 1976), the inventorying was conducted in accord with proper (routine) police procedures. 545 F.2d at 673 n. 1. The same was clearly true in Cardenas v. Pitchess, 506 F.2d 1224, 1225 (9th Cir. 1974), and United States v. Mitchell, 458 F.2d 960, 961 (9th Cir. 1972), and was apparently the case in United States v. Jamerson, 549 F.2d 1263, 1271 (9th Cir. 1977).

4 . Such circumstances existed in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), where it was feared that, absent safeguarding, a pistol might fall into the hands of thieves. The same could be said of Opperman, where valuables in plain view might have provided an incentive for theft. See also Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), and compare with Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), and Cotton v. United States, 371 F.2d 385 (9th Cir. 1967).

5 . In light of our disposition of the case, we find it unnecessary to consider appellant’s additional contention that the district court abused its discretion in refusing to reopen the case to permit the introduction of newly discovered evidence.