United States v. Marcus Lamour Harvey

16 F.3d 109

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 5, 1994
• Docket: 92-2366
• Status: Published

Opinions

BATCHELDER, Circuit Judge.

Marcus Harvey appeals from the judgment of conviction entered on his conditional plea of guilty following the district court’s denial of his motion to suppress the evidence obtained from a warrantless search of the vehicle in which he was a passenger. For the reasons that follow, we affirm the conviction.

Defendant makes three assignments of error,¹ claiming that the district court was required on any of three grounds to suppress both the physical evidence and the defendant’s statements obtained as a result of the stop and the search of the vehicle. First, he claims clear error in the district court’s finding that the stop of the vehicle in which he was riding was not pretextual. Second, he argues that the district court erred, in finding that the warrantless search of the stopped vehicle was a valid inventory search. Finally, he argues that the district court erred in determining that the officers who stopped the car had probable cause to search it.

Briefly stated the facts are these. On May 22,1990, on 1-475 in Genesee County, Michigan, the defendant was a passenger in a 1978 Chevrolet automobile that had no front bumper or right front headlight and that was clocked by police officers exceeding the speed limit by several miles per hour. The officers stopped the vehicle for speeding and equipment violations and because, as one officer later testified at the suppression hearing, “[t]he vehicle that I observed with the defective equipment was very similar in appearance and profile to several other vehicles that I have stopped which ultimately ended in arrests of drug traffickers.” When the driver of the ear was unable to produce a driver’s license, he was asked to step out of the ear. He admitted then that his license was suspended; he was placed under arrest for driving with a suspended license; and, while being searched incident to the arrest, he was found to have a rock of crack cocaine in his jacket pocket. The driver gave conflicting stories about who owned the ear, but the vehicle registration that he produced showed defendant Marcus Harvey to be the owner. Neither Harvey nor the other passenger could produce a driver’s license (Harvey’s license had been suspended also and the other passenger had never obtained a license),. or any other form of identification. Both passengers were asked to get out of the vehicle and were patted down for weapons by the officers; no weapons were found. Following the policy of their police department, the officers impounded the car because there was no licensed driver to drive it away, and conducted an inventory search of the car. Because none of the occupants had the key to the vehicle’s trunk, the officers removed the back seat in order to inventory the trunk and found there a pair of men’s sweat pants whose pockets contained 78 rocks of crack cocaine and six live .357 magnum revolver cartridges. Also in the trunk was a bulletproof vest. At this point the officers pried open the trunk of the car to more carefully search it and found a .357 magnum six-shot revolver.

Defendant Harvey was arrested for possession with intent to distribute cocaine and possession of a firearm during the commission of a felony. After being given the Miranda ² warnings, defendant was interviewed and provided police with a written statement. Defendant was subsequently indicted for possession with intent to distribute cocaine, conspiracy to distribute cocaine, and use of a firearm during a drug trafficking offense. The trial court denied defendant’s motion to suppress the evidence seized during the search of the vehicle and the statements made by him following his arrest, and defendant entered this conditional plea.

Defendant’s first assignment of error is foreclosed by this court’s recent en banc decision in United States v. Ferguson, 8 F.3d 385 (6th Cir.1993). Defendant does not dispute that the automobile in which he was riding was exceeding the speed limit at the time it was stopped, or that it was in violation of the applicable state laws because of its equipment deficiencies. Defendant con-' cedes that had the officers stopped the car solely because of either or both of those violations, the stop would have been lawful. Rather, defendant argues that no reasonable police officer would have stopped the car for those violations absent some other motive, and that the actual reason for the stop in this instance was not the obvious violations of the law but the fact that the car and its occupants fit the officer’s notion of a “drug profile.” In Ferguson, we held that

so long as the officer has probable cause to. believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment. We focus not on whether a reasonable officer “would” have stopped the suspect (even though he had probable cause to believe that a traffic violation had occurred), or whether any officer “could” have stopped the suspect (because a traffic violation had in fact occurred), but on whether this particular officer in fact had probable cause to believe that a traffic offense had occurred, regardless of whether this was the only basis or merely one basis for the stop. The stop is reasonable if there was probable cause, and it is irrelevant what else the officer knew or suspected about the traffic violator at the time of the stop. It is also irrelevant whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop.

Id. at 391 (citation omitted). There is no dispute about the fact that the traffic violations occurred, and the district court found that those violations would have been obvious to any officer observing the ear. Because that finding is not clearly erroneous, we hold that, under Ferguson, the stop of the car was not pretextual and was lawful.

Nor did the district court err in determining that the search of the vehicle in which Harvey was a passenger was lawful. In fact, the district court found that the warrantless search of the automobile was permissible under either the “automobile exception” set out in California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), or as an inventory search pursuant to the standards set out in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). A review of the record of the suppression hearing persuades us that the district court’s findings of fact cannot be said to be clearly erroneous, either as to the facts upon which it based its determination that the officers had probable cause to believe that the car contained drugs or other contraband, or as to the fact that the officers’ impounding of the car and the subsequent inventory search were pursuant to departmental policy and not for the purposes of a “fishing expedition.” Very recently this circuit addressed a search of an automobile under circumstances very similar to these, and held that

A police officer may search the passenger compartment of an automobile incident to the lawful custodial arrest of the occupant of the vehicle without a warrant or probable cause. This is so even if the arrestee has been separated from his car prior to the search of the passenger compartment. Further, where police have probable cause to believe that a vehicle contains contraband, they may search the entire vehicle and any containers located within it.

United States v. Mans, 999 F.2d 966, 968-69 (6th Cir.1993) (citations omitted). In that case, the defendant himself was the driver of the car. It is immaterial that the defendant here was a passenger, although the vehicle’s registration showed him to be the owner. We hold that the cocaine found on the person of the driver, the false information given to the officers regarding the car’s ownership, and the fact that none of the individuals in the car had a valid driver’s license, provided probable cause for the officers to believe that the car contained other drugs or paraphernalia, and that the search of the entire automobile was proper.

Further, because the defendant failed to demonstrate that the police officers impounded and inventoried the car “in bad faith or for the sole purpose of investigation,” see Colorado v. Bertine, 479 U.S. at 372, 107 S.Ct. at 741, we hold that the search was proper as an inventory search as well. As the Bertine Court pointed out, police are potentially responsible for property taken into their custody, and inventory searches of such property necessary to secure it serve to protect the property, the public, and the police. Id. at 373, 107 S.Ct. at 742. Here the police lawfully exercised their discretion in deciding to impound the vehicle in the absence of any licensed driver to attend to it, and they followed departmental policy in doing so.

Having held that both the stop and the search of the vehicle were lawful, we hold that the district court did not err in refusing to suppress the evidence obtained in the search and the statements made by the defendant after his arrest as a result of the search. The judgment of conviction is affirmed.³

1 . Defendant also filed a pro se brief in which he argues that his conviction must be reversed because the United States has no territorial jurisdiction over the place where the crime was committed. This argument was not advanced by defendant’s counsel, and is patently without merit.

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 . We are constrained to respond briefly to the dissent. The dissent makes much — indeed, everything — of the fact that Officer Collardey testified that one of the reasons this vehicle caught his attention was that it fit his own empirically justified profile of drug couriers, which included a racial factor. And as the dissent's quotations from the record indicate, Collardey did indeed say that he took note of occupants' race. But the dissent entirely mischaracterizes this testimony when it says repeatedly that Collardey testified that he stopped the vehicle because the occupants were African-Americans, see Op. at 113, 115; when it says that "Collardey testified [that] if the occupants had not been African-Americans, he would not have stopped the car,” id. at 113-14; and when it says that Collardey had a "primary race-based motivation” for the stop, id. There is no such testimony in the record; the dissent quotes the testimony that most supports its view of this case, and nowhere in that testimony is there any suggestion that Collardey’s use of race was a "but for" cause of the stop. Nor is such an inference justified based on this record. It does not follow from the fact that Collardey testified that race was a factor in his "why I stopped the vehicle” calculus that the suspects' race was a "necessary” cause of the stop.