US v. Richardson, 96-2215.

• Decision Date: 31 July 1997
• Docket Number: No. 96-2215.,96-2215.
• Citation: 121 F.3d 1051
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glen R. RICHARDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.3d 1051

UNITED STATES of America, Plaintiff-Appellee, v. Glen R. RICHARDSON, Defendant-Appellant.

No. 96-2215.

United States Court of Appeals, Seventh Circuit.

Argued April 23, 1997.

Decided July 31, 1997.

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Rodger A. Heaton (argued), James E. Beckman, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Gigi A. Gilbert (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Glen Richardson was arrested for driving on a suspended Illinois driver's license. While searching Richardson's car, the arresting state trooper found a handgun in a shaving bag located underneath the front passenger seat. Richardson was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Richardson pleaded guilty to the charge after the district court denied his motion to suppress the handgun as evidence. The court sentenced Richardson to 180 months' imprisonment. Richardson appeals the denial of his motion to suppress and his sentence. We affirm.

BACKGROUND

On May 1, 1995, Richardson was stopped by State Trooper John Davidson for speeding on an interstate highway in Illinois. Richardson produced a Missouri driver's license and explained that his driving privileges in Illinois had been suspended. After Trooper Davidson confirmed the suspension, he arrested Richardson for driving on a suspended license and for driving on a foreign operator's license in Illinois while his Illinois license was suspended. Trooper Davidson handcuffed Richardson, placed him in the back seat of the squad car, and called for a tow truck.

Trooper Davidson began to search Richardson's car. Under the front passenger seat, he discovered a brown shaving bag, zipped only about an inch. Trooper Davidson looked in the bag and found a fully loaded .357 Magnum revolver. Unsolicited, Richardson stated that he kept the gun for his protection while traveling. Richardson was charged with being a felon in possession of a firearm.

Richardson moved to suppress the handgun as evidence, arguing that the search of his car violated his rights under the Fourth Amendment. At the hearing on the motion to suppress, Trooper Davidson explained that he found the gun during a routine inventory search of Richardson's car. State police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police and the towing operator from claims of missing property. Richardson argued that the policy did not protect against unreasonable searches because it did not sufficiently direct officers as to what to do with containers found in vehicles. The district court denied the motion to suppress on the ground that the handgun was discovered during a valid inventory search pursuant to the state policy.

Richardson and the Government entered into a plea agreement. Richardson agreed to plead guilty and to cooperate with the Government. The Government agreed that it would inform the court of any cooperation by Richardson, that it would not recommend a sentence higher than the middle of the applicable sentencing range, and that it would suggest that Richardson be given credit for accepting responsibility. The plea agreement stated that Richardson faced a maximum penalty of ten years' imprisonment and a $250,000 fine unless the probation office determined that he qualified as an armed career criminal, in which case, he would be sentenced to a minimum of fifteen years' imprisonment and fined $250,000. The agreement also explicitly permitted Richardson to withdraw his guilty plea if the armed career criminal provision became applicable. At Richardson's change of plea hearing,¹ the district court explained the terms of the plea agreement, and Richardson indicated that he understood them.

The probation office determined that Richardson should be classified as an armed career criminal. At sentencing, Richardson made multiple objections to his criminal history calculations, all of which were rejected by the court. The court determined that Richardson had an offense level of thirty and a criminal history category of V, which produced a sentencing guideline range of 151 to 188 months. However, because Richardson qualified as an armed career criminal, the final applicable guideline range was 180 to 188 months. The court sentenced Richardson to 180 months.

On appeal, Richardson argues that the district court erred in denying his motion to suppress the handgun and that the court violated Rule 11 of the Federal Rules of Criminal Procedure by failing to advise him of the potential penalties he faced. He also requests that the case be remanded to the district court in order to more fully develop the record on the issue of ineffective assistance of counsel.

ANALYSIS

A. Suppression of Evidence

Richardson maintains that Trooper Davidson violated his Fourth Amendment right to be free from unreasonable searches and seizures when he opened his shaving bag, and therefore the district court erred in denying his motion to suppress the handgun. We review warrantless search and seizure issues de novo. United States v. Bruce, 109 F.3d 323, 328 (7th Cir.1997) (citing Ornelas v. United States, ___ U.S. ___, ___, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). "In conducting our de novo review, however, we accept the district court's findings of historical fact unless they are clearly erroneous and `give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" United States v. Osborn, 120 F.3d 59, 62 (7th Cir.1997) (quoting Ornelas, ___ U.S. at ___, 116 S.Ct. at 1663).

We find two separate grounds on which we may affirm the district court's denial of Richardson's motion to suppress. First, we agree with the district court that Trooper Davidson's opening of Richardson's shaving bag was part of a legitimate inventory search. Second, the opening of the shaving bag was part of a valid search incident to Richardson's arrest.

As to the first basis, Richardson argues that the Illinois policy regarding inventory searches does not expressly explain whether and when to open containers found in cars during such searches, and therefore the search of the shaving bag violated the Fourth Amendment. The policy provides, in relevant part:

An examination and inventory of the contents of all vehicles/boats towed or held by authority of department officers will be made by the officer who completes the Tow Report. This examination and inventory will be restricted to those areas where an owner or operator would ordinarily place or store property or equipment in the vehicle/boat, and would normally include front and rear seat areas, glove compartment, map case, sun visors, and trunk and engine compartments.

Inventory searches "serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987). Generally, "reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment." Id. at 374, 107 S.Ct. at 742. As for closed containers, so long as standardized criteria or established routines exist regarding the opening of closed containers, searching such containers is permissible. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (citation omitted). The existence of a police policy, however, does not necessarily eviscerate officers' discretion in deciding whether to search a particular container.

In Florida v. Wells, the Supreme Court explained:

In forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical "all or nothing" fashion.... A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.

495 U.S. at 4, 110 S.Ct. at 1635.

In the wake of Wells, this Court decided United States v. Wilson, 938 F.2d 785 (7th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 946, 117 L.Ed.2d 115 (1992). In Wilson, we held that a warrantless inventory search is constitutionally permissible if "(1) the individual whose possession is to be searched has been lawfully arrested," and "(2) the search satisfies the fourth amendment standard of reasonableness, i.e., it is conducted as part of the routine procedure incident to incarcerating an arrested person and in accordance with established inventory procedures." 938 F.2d at 789.

Wilson was stopped by an Illinois state trooper for a traffic violation. After the trooper discovered that there was an outstanding warrant for Wilson's arrest, he arrested Wilson and placed him in the squad car. The trooper then conducted an inventory search of Wilson's car, pursuant to a state police policy which is identical, in all relevant respects, to the policy that was in effect when Trooper Davidson conducted the inventory search of Richardson's car. While searching the trunk, the trooper found two bags. The trooper opened the bags and found a pistol and ammunition in one bag and two scales and cocaine in the other bag. The district court denied Wilson's motion to suppress the evidence obtained during the search, reasoning that,...