U.S. v. Vasey

• Decision Date: 15 December 1987
• Docket Number: No. 86-3157,86-3157
• Citation: 834 F.2d 782
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Allen VASEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 782

834 F.2d 782

56 USLW 2395

UNITED STATES of America, Plaintiff-Appellee, v. Michael Allen VASEY, Defendant-Appellant.

No. 86-3157.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1987.

Decided Dec. 15, 1987.

Francis J. Diskin, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Richard Hansen, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER and NORRIS, Circuit Judges, and MacBRIDE, ^* Senior District Judge.

MacBRIDE, Senior District Judge.

Michael Allen Vasey appeals the denial of his motion to suppress evidence seized from his vehicle by police officers after he was stopped for a routine traffic violation and arrested on an outstanding felony drug warrant. The police conducted a warrantless search of the vehicle at the arrest site and a subsequent, more thorough search after impounding the vehicle and obtaining a search warrant. The district court initially found that both the warrantless and the warrant searches of the vehicle violated Vasey's Fourth Amendment rights and granted the motion to suppress. Upon the government's motion to reconsider, the district court reversed itself and found that the warrantless search was proper as a search incident to arrest and that the search warrant was valid so as to permit the subsequent search. Defendant entered a conditional guilty plea pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure whereby he preserved his right to appeal the denial of his suppression motion. This appeal resulted.

I. FACTUAL BACKGROUND

Vasey was driving a vehicle near Woodinville, Washington at approximately 9:27 a.m. He was observed speeding by King County Police Officer William Jensen and pulled over. As he approached the vehicle, Officer Jensen believed he saw Vasey stuffing his hand between the seats and handling something furtively on the right rear floorboard. Vasey contends he was merely unfastening his seatbelt and reaching for his wallet to retrieve his license. Officer Jensen asked for and was given Vasey's driver's license. Officer Jensen returned to his patrol car and radioed a dispatcher to perform a warrants check. This check revealed an outstanding warrant from Snohomish County, Washington, for the arrest of Vasey for possession of dangerous drugs. Officer Jensen promptly arrested Vasey, patted him down, and handcuffed him. During the patdown, Officer Jensen found $1,128 in currency. Vasey, still handcuffed, was placed in the rear of the patrol car. Officer Jensen asked Vasey if he would consent to a search of the vehicle and Vasey refused until he could consult with an attorney.

Officer Jensen radioed for assistance and was joined by King County Sargeant Jerry Lane at approximately 9:47 a.m. Officers Jensen and Lane, suspicious that Vasey was engaged in drug-related activity, looked through the window of Vasey's vehicle and spotted a sealed container of pills. The container bore a printed label identifying the pills as a food supplement, but it is unclear to what extent this label was visible from the officers' position outside the vehicle. The officers returned to the patrol car and questioned Vasey about the pills. Vasey correctly identified the pills as a food supplement he sold for a company called "Good For You America" and gave the officers the name and number of his employer to verify his employment.

Still suspicious of drug-related activity, the officers decided to impound the vehicle. In compliance with local police impoundment procedures, the officers entered the vehicle to inventory its contents. This warrantless search was conducted anywhere from thirty to forty-five minutes after Vasey had been arrested and placed in the rear of the patrol vehicle. Upon finding $5,000 underneath the driver's seat and a gold watch, the officers terminated the search and decided to obtain a warrant before resuming their search. After the partial inventory search had ended but before the car was towed, Officer Jensen observed on the console a container the size of an audio cassette. The container bore a "Good For You America" label and contained three white pills. The pills had the word "aspirin" imprinted on them. It is unclear whether Officer Jensen noticed this designation on the pills.

Officer Jensen prepared an affidavit outlining the events up to that point in time, including the discovery of the $5,000 and the gold watch in the warrantless search. A warrant was issued by a Washington Superior Court Judge on the basis of this affidavit. A search of the vehicle conducted pursuant to the warrant uncovered $71,111 in currency and three kilograms of substance later found to contain cocaine.

Vasey moved to suppress all evidence seized from the vehicle on the grounds that the searches violated both the Fourth Amendment to the United States Constitution and the warrantless search provisions of the Washington State Constitution. The government countered that the warrantless search was justified as an inventory search, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and that the subsequent search was proper because it was conducted pursuant to a valid search warrant. In its Findings of Fact and Conclusions of Law dated March 25, 1986, the district court found that the warrantless search could not be justified under any exception to the Fourth Amendment Warrant Requirement. Specifically, the search was not a proper inventory search because it was conducted to search for evidence rather than to inventory the contents of the vehicle. United States v. Hellman, 556 F.2d 442, 444 (9th Cir.1977). The search could not be justified as a search incident to Vasey's arrest because Vasey had already been handcuffed and placed in the rear of the police vehicle at the time the search was conducted. Since the $5,000 and the gold watch were found during an illegal search, any reference to these items should have been excluded from Jensen's affidavit for the search warrant. Without this information, the district court found there was not probable cause to issue the warrant and ruled the warrant was invalid and all evidence discovered in the search conducted pursuant to the warrant must be suppressed.

The government filed a motion to reconsider and argued, inter alia, that the warrantless search of Vasey's vehicle was proper as a search incident to arrest under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In an order dated May 22, 1986, the district court reversed itself and found that the warrantless search was proper as a search incident to arrest and that Officer Jensen's reference in his affidavit to the evidence found in the warrantless search was proper. With this evidence in the affidavit, the district court ruled that the warrant was valid and that all evidence seized pursuant to the warrant was admissible. The motion to suppress was denied.

Vasey appeals this denial of his motion to suppress. We REVERSE and REMAND.

II. STANDARD OF REVIEW

The government must prove the existence of an exception to the Fourth Amendment Warrant Requirement by a preponderance of the evidence. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); United States v. Whitten, 706 F.2d 1000 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). The ultimate issue of the lawfulness of a search presents a mixed question of law and fact which a circuit court reviews de novo. United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985).

III. LEGALITY OF THE WARRANTLESS SEARCH

Appellant Vasey argues that the warrantless search of his vehicle was not proper under the Fourth Amendment to the United States Constitution as a search incident to arrest because the search took place anywhere from thirty to forty-five minutes after he was arrested, handcuffed, and placed in the rear of a police vehicle. Even if the search was proper under the United States Constitution, appellant contends, the search was invalid under the stricter warrantless search standards established by Article One, Section 7 of the Washington State Constitution. The government counters that the search was proper under the bright line search incident to arrest rule established in New York v. Belton, supra.

The starting point for any search incident to arrest analysis is Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, the defendant was arrested in his home for burglary of a coin shop. After the arrest, police officers conducted a warrantless search of defendant's entire three bedroom house, his garage, and a workshop under the auspice of a search incident to arrest. The Supreme Court held that the search was too broad to be justified as a search incident to arrest and was therefore unreasonable under the Fourth and Fourteenth Amendments. Chimel at 768, 89 S.Ct. at 2043. In attempting to clarify the scope of the search incident to arrest exception, the Court ruled that pursuant to an arrest, officers may search the area into which an arrestee might reach to grab a weapon or evidentiary item (i.e. "grabbing area"). Chimel at 762-63, 89 S.Ct. at 2040.

In New York v. Belton, supra, the Supreme Court applied the search incident to arrest exception to a car after an occupant of the car had been arrested. In Belton, a police officer pulled over a speeding vehicle. While checking the driver's license, the officer smelled the odor of marijuana coming from the car and noticed an envelope in the car marked "Supergold" that he associated with marijuana. Based on these observations, the four occupants of the car were arrested, searched, and separated on the highway so that they would not be within touching distance of one another. The officer then searched the passenger compartment of the vehicle and found app...