408 F.3d 1313 (10th Cir. 2005), 04-6303, United States v. Johnson

Docket Nº:04-6303.
Citation:408 F.3d 1313
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. William Ray JOHNSON, Defendant-Appellee.
Case Date:June 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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408 F.3d 1313 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellant,

v.

William Ray JOHNSON, Defendant-Appellee.

No. 04-6303.

United States Court of Appeals, Tenth Circuit

June 1, 2005

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Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC (Robert C. McCampbell, United States Attorney, and Edward J. Kumiega, Assistant United States Attorney, Western District of Oklahoma, Oklahoma City, OK, with him on the briefs), for Plaintiff-Appellant.

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON, and O'BRIEN, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The government appeals on an interlocutory basis the district court's suppression of evidence seized pursuant to a warrantless administrative search of an auto salvage yard. We reverse and remand.

BACKGROUND

On April 16, 2004, Oklahoma City Police Department officers parked a "bait truck" with keys in its ignition on a street corner in Oklahoma City. The bait truck contained a concealed audio and video recording system and a global positioning system tracking unit. The officers noticed defendant William Ray Johnson, driving a wrecker, stop across the street from the

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bait truck, get out of his vehicle and stare at the truck. Subsequently, in the early morning hours of April 19, 2004, police monitoring the bait truck noticed that it was moving. Police officers approached the bait truck and arrested Johnson after he had driven the truck approximately ten blocks. The audio and video monitoring equipment revealed that Johnson had spoken to someone on his cell phone as soon as he started driving the truck, reporting that he was in the truck and moving it.

While Johnson was being booked on theft charges at the police station, police discovered that he had two prior felony convictions for burglary. They also discovered that he was employed by the Autoplex Drive-In Salvage Company ("Autoplex Salvage"), which was located approximately a block away from where the bait truck was initially parked. Detective Scott Smith of the Oklahoma City Police Department's auto theft unit testified that he and other officers decided to perform an administrative warrantless search of Autoplex Salvage because Johnson worked there. 1 Additionally, Detective Mark Wood of the police department's criminal intelligence unit informed Detective Smith that Johnson was a member of the Rogue motorcycle gang, which was under criminal investigation, that Autoplex Salvage was a hangout for gang members, and that the officers should be careful when conducting their inspection. Detective Smith testified that he already knew that Johnson was a member of the Rogue motorcycle gang prior to being so informed by Wood.

At approximately 9:00 a.m. on April 20, 2004, nine Oklahoma City police officers and detectives from the auto theft unit, accompanied by Detective Wood, arrived at Autoplex Salvage to conduct the search. The officers did not have a warrant, but instead relied upon two Oklahoma statutes permitting warrantless administrative searches of salvage yards, Okla. Stat. tit. 47, § 591.6 and Okla. Stat. tit. 47, § 4-111. 2

When the officers arrived at the salvage yard, auto theft unit Detective Richard Spanbauer spoke to Guy McBride, the owner of Autoplex Salvage. Detective Spanbauer explained why they were there and showed McBride a copy of one of the authorizing statutes, Okla. Stat. tit. 47, § 4-111. McBride told the detective that he could "search anything of mine that he wants to but stuff that's not mine I can't give him permission [to search]." Appellant's

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App. at 67. As the inspection commenced, a wrecker towing a flat-bed trailer with a truck aboard began to drive off the salvage yard premises. Detective Scott Wilson stopped the wrecker and determined that the truck had been reported stolen. The driver of the wrecker, Kevin McBride, the nephew of Autoplex Salvage owner Guy McBride, was arrested.

Officers began inspecting vehicles in the salvage yard to determine whether any had altered Vehicle Identification Number ("VIN") plates and whether any vehicles or parts with identified VINs had been reported stolen. 3 Detective Smith testified that:

[An inspection] takes a lot of people and it takes several hours due to the fact that each vehicle you have to inspect the public VIN. If the public VIN appears to be attached by the factory you just write down the VIN number so it can be checked to be stolen. If it appears that it's not been factory installed, for instance the VIN has been switched or not properly attached where it might not be the VIN that goes on that vehicle, then you have to further inspect the vehicle by looking for confidential VIN numbers to confirm if that's really the VIN number that belongs on the vehicle or if in fact that's a bogus VIN number or VIN number off another vehicle that's been placed on there as a public VIN.

You also have to inspect engines and transmissions because they have numbers on them that correspond to the VIN number, so that if you find an engine laying there or transmission laying there you get the number off it, you can run it and build a full VIN for the purpose of identifying if it came out of a stolen vehicle, et cetera.

You also check any parts of the vehicles that would have mylar stickers, which are small stickers that have VIN numbers in full, which depending on how new the vehicle is could be fenders, it could be hoods, it could be glove boxes, it could be any number of areas on the vehicle.

Id. at 127-28.

After the officers searched all the vehicles in the salvage yard, they began to inspect the garage, which was also on the salvage yard premises. 4 Officers opened toolboxes, drawers and any other places that could contain a detached VIN plate. They did not search the used car lot or the showroom area. They also did not examine any of the paperwork pertaining to vehicles at the salvage yard. Detective Smith testified that:

[t]he only time I would ask to see a document if I did an inspection would be if I found a vehicle on the yard that something was wrong with. If I found a vehicle, for instance, that had no public VIN, which occasionally in salvage yards you'll find one, then I would ask them to produce the paperwork as to how they

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got the vehicle, who they got the vehicle from, et cetera, and any proof they might have as to if the VIN number was removed at the time it came into their lot, or if for some reason it was removed at the time it was at their lot.

Id. at 130-31.

When the officers reached Johnson's workstation, they found two motorcycle frames, one of which had an obviously obliterated VIN that had been replaced by another stamped number. 5 The other motorcycle frame did not have a VIN, but McBride testified that he told Detective Smith that a VIN was not required on that frame because it was an aftermarket frame sold as a separate part. The officers seized both frames, although they later returned the one with no VIN. Next to the frames was a locked toolbox, which was identified as belonging to Johnson.

Johnson, who had not been at the salvage yard as the search commenced, arrived at the yard around 11:00 a.m. and identified his toolbox. Detective Smith testified as follows concerning his conversation with Johnson:

I asked him if it was his toolbox, and he said it was. I then said give me the key to the toolbox. He initially said I lost it. It's been lost for a long time. And I said, well, Bill, you're a mechanic, and these are your tools. If your toolbox key has been lost for a long time how are you doing any work? And he looked down at the ground and he said, well, it's at home. He goes, I'll go get it. I said, why don't you just call somebody to bring it down to you. He goes, well, I'll see.

I stayed out there looking at the frames. He walked towards the office area. I don't know exactly where he went in the front. I call it the office area. Where the front service desk area is. Approximately maybe five minutes later Mr. Johnson walked back and handed me a key. And he goes, here's a key. I didn't know that there was a key here.

Id. at 146-47. Johnson testified that Detective Smith told him "they were going to take my toolbox downtown unless I come up with a key to open it." Id. at 193. He further testified that he did not believe he had any option to deny Detective Smith access to his toolbox, based upon "the way Detective Smith phrased his statement. They were going to take my toolbox unless it was opened." Id. He further testified on cross-examination that "[a]t this point [he] didn't feel like [he was] under arrest" and he agreed that he "could have walked away." Id. at 198. But he then testified that he felt "coerced" to give Smith the key "[w]hen [Smith] threatened to take [his] toolbox from the premises." Id. at 199.

Smith testified that his purpose in looking inside Johnson's toolbox was to determine whether it contained a license plate, VIN plate, or other means of identifying who owned the motorcycle frame with the obliterated VIN. 6 Smith found a motorcycle

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license plate in the toolbox, and he had another officer run a computer check to see if it was from a reported stolen motorcycle. It "checked clear." Id. at 148. Smith also found a blue box inside the toolbox, and in the blue box he found a loaded .22 revolver and some ammunition. Detective Wood then summoned an agent from the Bureau of Alcohol, Tobacco and Firearms ("ATF") to the scene and Johnson was arrested. Police obtained a warrant to search his house, where additional ammunition was...

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