843 F.2d 1228 (9th Cir. 1988), 86-3224, United States v. Parr

Docket Nº:86-3224.
Citation:843 F.2d 1228
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael PARR, Defendant-Appellant.
Case Date:April 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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843 F.2d 1228 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven Michael PARR, Defendant-Appellant.

No. 86-3224.

United States Court of Appeals, Ninth Circuit

April 7, 1988

Argued and Submitted July 9, 1987.

Daniel G. Hoarfrost, Portland, Or., for defendant-appellant.

Mervyn Hamburg, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and SKOPIL, Circuit Judges, and THELTON E. HENDERSON, [*] District Judge.

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SKOPIL, Circuit Judge:

Defendant-appellant Steven Parr was charged and convicted of possessing stolen mail in violation of 18 U.S.C. Sec. 1708 (1982). On appeal he argues that the stolen mail, discovered and seized by a municipal police officer during a routine vehicle stop, should have been suppressed. We agree that the warrantless search of Parr's car and subsequent seizure of the contraband were unlawful and that the evidence should have been suppressed. We reverse and remand on that ground. We do not reach Parr's other contentions that the district court committed several evidentiary errors during trial and failed properly to instruct the jury.

FACTS AND PRIOR PROCEEDINGS

In the early morning of May 15, 1986, Steven Parr was stopped and detained by a Portland police officer. The officer stopped Parr because he suspected Parr was driving with a suspended driver's license. As the officer was stopping Parr, he noticed Parr and a companion in the car bend towards the floorboard and "make furtive movements." The officer attributed Parr's attention to the floorboard as the cause of Parr driving partially up on the sidewalk before stopping.

After stopping Parr, the officer asked him to exit the car. Parr was searched and placed into the patrol car. The officer returned to Parr's car and asked the passenger to exit. She was also searched. The officer then noticed a small red leather bag, zipped closed, and a blue nylon gym bag, also zipped closed, lying on the front floorboard. He removed both from the car and opened them. The leather bag was a "narcotics kit" containing syringes, spoons, cotton, and gram scales. The gym bag contained a sawed-off shotgun, a shotgun shell, and stolen mail.

Parr was read his Miranda rights and cited for the state crimes of Unlawful Possession of a Firearm, Or.Rev.Stat. Sec. 166.250, and Driving While Suspended, Or.Rev.Stat. Sec. 487.560 (now Sec. 811.175). The officer seized the bags and their contents. The entire stop, search and detention lasted one half to three quarters of an hour. Parr and his companion were then released.

Several months later Parr was arrested by federal officers for possession of the stolen mail that had been seized by the Portland police officer. Parr sought to suppress the physical evidence seized from the car, contending that the warrantless search could not be justified. The trial court upheld the search as lawful, incident to Parr's arrest.

DISCUSSION

Under federal law 1 searches incident to arrest constitute a traditional exception to the warrant requirement of the fourth amendment. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973). As the exception applies to automobiles, the Supreme Court has held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981) (footnotes omitted). The search may include examination of the contents of any closed containers within the passenger compartment. Id.; United States v. Basey, 816 F.2d 980, 991-92 (5th Cir.1987).

There is no question in this case that the officer had the discretionary authority to arrest Parr. See Or.Rev.Stat. Sec. 133.130(10)(g) (authorizing arrest for violation of Or.Rev.Stat. Sec. 811.175). The validity of a discretionary full custody arrest and search incident to that arrest for minor

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traffic offenses has been upheld. Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (1973); United States v. Franklin, 728 F.2d 994, 997 (8th Cir.1984). We also believe there was probable cause for the officer to believe that Parr was violating the law by driving while suspended. The officer had cited Parr earlier for driving while suspended and had recently checked Parr's record.

Nonetheless, it is not clear that the police action taken here is the type of "custodial arrest" necessary to support a search incident to arrest. See Belton, 453 U.S. at 461, 101 S.Ct. at 2864 (requiring "lawful custodial arrest" to support contemporaneous search of automobile incident to that arrest). Certainly, there is no per se rule that detention in a patrol car constitutes an arrest. See United States v. Kapperman, 764 F.2d 786, 792 (11th Cir.1985) (no arrest when police moved defendant to nearby area in patrol car); United States v. Manbeck, 744 F.2d 360, 377-78 (4th Cir.1984) (no arrest when suspect placed in back of patrol car), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985).

The Seventh Circuit recently reasoned that "sitting in the patrol car for several minutes was merely a normal part of traffic police procedure for identifying delinquent drivers" and did not constitute custodial arrest. United States v. Rodriguez, 831 F.2d 162, 166 (7th Cir.1987). We reached essentially the same conclusion in United States v. Thompson, 597 F.2d 187, 190 (9th Cir.1979). There we held that the defendant's failure to produce a valid driver's license "justified the request that he get out of his car and sit in the police car while a standard police identification process took place." Id. Because the defendant was not under arrest at the time of the search, we concluded that the search was unlawful. Id. at 191.

In United States v. Gonzalez, 763 F.2d 1127, 1130 n. 1 (10th Cir.1985), the court noted that the distinction between custodial arrests and traffic arrests is critical "because the label used for constitutional purposes defines the scope of reasonable police conduct incident to such a [traffic] stop." The court reasoned:

If such a traffic stop were like a traditional custodial arrest, then as part of the search incident to arrest the apprehending officer could search the entire passenger compartment. But if, as we conclude here, the traffic stop only amounts to an investigative detention, the officer's freedom to search is more...

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