United States v. Johnson
| Decision Date | 02 February 2015 |
| Docket Number | No. 13–15583.,13–15583. |
| Citation | 777 F.3d 1270 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Shawnton Deon JOHNSON, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jonathan Colan, Matthew John Langley, Assistant U.S. Attorney, Kathleen Mary Salyer, Wifredo A. Ferrer, Michael J. Garofola, Alison Whitney Lehr, Elina A. Rubin–Smith, Assistant U.S. Attorney, John C. Shipley, Assistant U.S. Attorney, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.
Michael Caruso, Federal Public Defender, Tracy Michele Dreispul, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13–cr–20128–CMA–1.
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and JONES,* District Judge.
This appeal requires us to decide whether to apply the inevitable discovery exception to the exclusionary rule when a police officer illegally discovers evidence that he would have discovered in a later inventory search. When a police officer stopped a truck driven by Shawnton Johnson, the officer checked the license plate for the truck and determined that it was registered to a deceased person. And Johnson admitted that he was driving the truck with a suspended driver's license. The officer then conducted an illegal search of the truck and discovered a sawed-off shotgun. The officer arrested Johnson, performed an inventory search of the truck, and had the truck impounded. Johnson later moved to suppress the shotgun, but the government responded that the shotgun was admissible under the exception to the exclusionary rule for inevitable discovery. The government argued that, because there was no registered owner to whom the officer could have returned the truck, the officer would have discovered the shotgun when he impounded the truck and conducted an inventory search. The district court denied the motion to suppress. Johnson pleaded guilty to one count of felon-in-possession of a firearm, 18 U.S.C. § 922(g)(1), but reserved the right to appeal the denial of his motion to suppress. Because the district court neither clearly erred in its findings of fact nor misapprehended the governing law, we affirm.
Officer Brian Gregory of the Miami Gardens Police Department was on patrol in the early morning of October 19, 2012, when he encountered a white Ford truck driven by Johnson. Officer Gregory searched the license plate number on his computer and discovered that the registered owner of the truck was deceased. When the truck failed to signal a turn, Officer Gregory stopped the vehicle.
Officer Gregory asked Johnson for his driver's license; Johnson responded that his license was suspended and instead provided a Florida identification card. Officer Gregory searched Johnson's license history and learned that Johnson's license had been suspended six times and was currently suspended. Officer Gregory issued a traffic citation to Johnson for driving with a suspended license and decided that he would arrest Johnson for the infraction, but Officer Gregory did not perform the arrest then.
Officer Gregory approached Johnson's truck to determine if anyone else was inside. While peering inside the truck, Officer Gregory noticed an item wrapped in a clean white cloth. He removed the cloth and discovered a sawed-off shotgun. Officer Gregory then arrested Johnson.
After the arrest, Officer Gregory conducted a detailed inventory search of the truck, including its bed and containers. Officer Gregory also further researched the truck, but he was unable to find another registered owner. About 20 minutes after he inventoried the truck, Officer Gregory completed a vehicle storage receipt and requested that the truck be towed, and marked as the reason “license suspended.”
A grand jury indicted Johnson on charges of possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(e), and knowingly possessing an unregistered firearm, 26 U.S.C. §§ 5841, 5861(d), 5871. Before trial, Johnson moved to suppress the shotgun as the fruit of an illegal search in violation of the Fourth Amendment. U.S. Const. Amend. IV. The government argued that the shotgun was admissible under the exception to the exclusionary rule for inevitable discovery because Officer Gregory would have discovered it during his inventory search of the truck. At the suppression hearing, the district court heard testimony from Officer Gregory and examined a recording of the incident.
The district court ruled that the initial search of the truck was illegal and that the exception for inevitable discovery did not apply. The district court found that the facts were in “large part” as the government had alleged them, but that Officer Gregory did not know he was going to tow the truck when he first searched it and found the shotgun. The district court found that, at the time of the search, Officer Gregory was still looking for ways to avoid towing the truck. Because the government had not established that Officer Gregory was “actively pursuing” an inventory search, United States v. Virden, 488 F.3d 1317, 1323 (11th Cir.2007), the district court determined that the discovery of the shotgun was not inevitable and suppressed the gun.
The court later granted a motion to reconsider filed by the government. The district court explained that Officer Gregory “confirmed the truck's owner had died ..., eliminating the possibility of releasing the truck to another person,” and that Officer Gregory also “knew the truck could not be released to the Defendant” because his license was suspended. Because “Officer Gregory would of necessity have had to conduct a[n] ... inventory search,” the government had established “a reasonable probability” that the shotgun “would have been discovered other than by the tainted source.” United States v. Brookins, 614 F.2d 1037, 1042 n. 2 (5th Cir.1980). The district court ruled that the government had “satisfied” the requirement of “active pursuit” and that the evidence was admissible.
Johnson then signed a conditional plea agreement. Johnson pleaded guilty to the charge of felon-in-possession, but he retained the right to appeal the denial of his motion to suppress.
Two standards govern our review of this appeal. Virden, 488 F.3d at 1321. And when an argument is first raised on appeal, we review the argument for plain error. United States v. Clark, 274 F.3d 1325, 1326 (11th Cir.2001).
We divide our discussion in three parts. First, we explain that the shotgun is admissible under the exception to the exclusionary rule for inevitable discovery. Second, we explain that Johnson's argument that Officer Gregory did not impound the truck on the basis of “standard criteria” fails. Third, we explain that the remainder of Johnson's arguments are meritless.
A. The Shotgun Is Admissible Under The Inevitable Discovery Exception to the Exclusionary Rule.
The government does not contest that its warrantless search of Johnson's vehicle was illegal, but it argues that an exception to the exclusionary rule allows the admission of Johnson's shotgun. Under the exception for “inevitable discovery,” the government may introduce evidence that was obtained by an illegal search if the government can establish a “reasonable probability that the evidence in question would have been discovered by lawful means.” Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir.2004). The government must also establish that “the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” Id.
The district court did not clearly err when it found that the government established a “reasonable probability” that the shotgun would have been discovered by lawful means. The district court found that, when the search occurred, Officer Gregory had already discovered that the registered owner of the vehicle was deceased. The district court found that Officer Gregory had already discovered that Johnson's license was suspended and that he could not return the truck to Johnson. The district court found that, although Officer Gregory had not yet determined that he was going to impound the truck when he performed the illegal search, he would eventually have had to impound the truck because there was no one to whom he could have released it. And the district court found that when he impounded the truck, Officer Gregory would have had to perform an inventory search, and he would have discovered the shotgun. The evidence presented at the suppression hearing supports these findings. “Subtract the [illegal search] from the factual picture in this case” and “nothing of substance” would have changed. Jefferson, 382 F.3d at 1297.
Johnson argues that the government failed to satisfy our test for inevitable discovery because Officer Gregory was not “actively pursuing any lawful means [of discovery] at the time of the illegal conduct,” Virden, 488 F.3d at 1323, as Officer Gregory had not yet initiated procedures to have the truck impounded and searched. Even if there was a reasonable probability that Officer Gregory would eventually initiate a valid inventory search, Johnson contends that the government still must prove his “plans” to engage in that search. We disagree.
Johnson misunderstands the requirement of “active pursuit.” “Active pursuit” does not require that police have already planned the particular search that would obtain the evidence. The government must instead establish that the police would have discovered the evidence “by virtue of ordinary investigations of evidence or leads already in their possession.” Virden, 488 F.3d at 1323. Officer...
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