U.S. v. Wanless
| Decision Date | 23 August 1989 |
| Docket Number | Nos. 88-3037,88-3038,88-3039 and 88-3045,s. 88-3037 |
| Citation | 882 F.2d 1459 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jay Vee WANLESS, a/k/a William Earl Wanless, Douglass Scott Tompkins, Linda Aune, and Michael Eugene Beck, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Phillip J. Wetzel, Spokane, Wash., for defendant-appellant Linda K. aune.
Gene E. Hamilton, Spokane, Wash., for defendant-appellant Jay Vee Wanless.
Richard C. Agman, Spokane, Wash., for defendant-appellant Douglass Scott Tompkins.
Richard B. Kayne, Spokane, Wash., for defendant-appellant Michael Eugene Beck, aka Frank Eugene Stone.
Earl A. Hicks, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Washington.
Before WRIGHT, PREGERSON and REINHARDT, Circuit Judges.
Four appellants challenge the district court's denial of a motion to suppress certain evidence obtained through inventory and investigatory searches of two automobiles. The appellants contend that because the police did not inform the owner of the vehicles that he did not have to consent to the inventory search, the evidence resulting from the search should have been suppressed. They also contend that the remaining evidence was insufficient to establish probable cause to allow the police to search the two vehicles. We agree. 1
After being alerted by an air traffic patrol, Troopers Pass and Ahren of the Washington State Patrol stopped two vehicles for speeding on Interstate 90 near Spokane. The first vehicle was a green 1953 Chevrolet with two occupants; appellant Douglass Scott Tompkins was driving and appellant Jay Vee Wanless was the passenger. The second vehicle was a black El Camino, also with two occupants; the El Camino was being driven by appellant Michael Eugene Beck, and appellant Linda K. Aune was the passenger.
After stopping the two cars, Trooper Pass asked Tompkins, the driver of the Chevrolet, for identification. Tompkins was unable to provide the trooper with a driver's license or other papers. He also could not supply either registration or title for the car. Tompkins did, however, inform Trooper Pass that he was driving the Chevrolet to Portland for the driver of the El Camino. When the trooper asked Tompkins who his passenger was, Tompkins stated that he knew him only as "Jay". Trooper Pass then arrested Tompkins for driving without a license, took him into custody, and placed him in the back of Trooper Ahren's patrol car.
Trooper Pass then returned to the Chevrolet to interrogate the passenger, who identified himself as William Earl Wanless. When the trooper asked him for his birthdate, Wanless hesitated before responding. Trooper Pass thought that Wanless was lying about his birthdate and perhaps his name, as Tompkins had indicated that his passenger's first name was "Jay". Wanless was unable to provide any form of identification. At this point, the trooper arrested Wanless for giving false information to a police officer and read him his Miranda rights.
Trooper Pass then proceeded to search Wanless. The pat-down produced a syringe cap and an empty "bindle." The trooper also noticed that Wanless had needle marks on his arm. When asked when he had last "shot up", Wanless replied "2 days ago."
While Trooper Pass was interrogating the occupants of the Chevrolet, Trooper Ahren was questioning the driver and passenger of the El Camino. The driver, who pleaded guilty under the name Michael Beck, identified himself as Frank Eugene Stone, but was unable to produce a driver's license or other form of identification. The passenger, who identified herself as Linda Aune, did produce a Portland identification card, but no driver's license. Appellant Beck was subsequently arrested for operating a vehicle without a license and was placed in the patrol car with Tompkins. Linda Aune remained in or near the El Camino.
Because none of the occupants of the two cars had a valid driver's license, no one was capable of driving the cars off the interstate highway. Furthermore, appellants did not indicate that any of them had any friends or relatives in the area whom they could call to take possession of the vehicles. Accordingly, the troopers decided to impound the vehicles in accordance with standard Washington State Patrol procedures. Trooper Pass radioed for two tow trucks and then began an inventory search of the contents of the vehicles.
The Chevrolet was the first vehicle to be inventoried. Trooper Pass' inventory began in the unlocked glove box, where he found a mirror with white residue on it, which he thought was probably a controlled substance. Above the passenger compartment visor, he found a dentist's-type mirror. At this point, Pass believed that the car probably contained other contraband and decided to delay the search until he obtained advice from his sergeant, whom he radioed to come to the scene.
While waiting for the sergeant to arrive, Trooper Pass commenced an inventory search of the El Camino. In the glove box, Pass found a spoon with burn marks and residue on it. The trooper also found cigarette papers on the floor or front seat of the El Camino. At this point, the trooper stopped the inventory search and asked appellants Tompkins and Beck if he could search both vehicles. Both appellants refused consent.
Approximately twenty minutes later, Sergeant Larsen arrived at the scene. Troopers Pass and Ahren told Larsen their findings. Sergeant Larsen then telephoned a deputy prosecuting attorney for Spokane County who, upon being advised of the facts as detailed above, recommended that the officers proceed with the search.
Based on the advice of the deputy prosecutor, Trooper Pass again undertook a search of the vehicles. He testified that, at this point, he was not continuing his previous inventory search, but rather was conducting an investigatory search for drugs. In searching the Chevrolet, Trooper Pass discovered the following items: (1) a sack under the front seat which contained a syringe and beer; (2) a loaded handgun; and (3) an unlocked blue socket box which contained green vegetable matter, which he believed from his experience to be marijuana. He then terminated his search of the Chevrolet.
Trooper Pass then turned to the El Camino. His investigative search of this car uncovered a closed camera case which, when opened on the scene, was found to contain scales, a razor, a mirror, and a white powdery substance, which he believed was an illegal drug. 3 He also believed, from his experience, that the scale was of a type commonly used for weighing drugs. No further searches of the two vehicles took place at the scene.
The two vehicles were then towed to the State Patrol Building, where the troopers prepared a telephonic warrant. The affidavit supporting the application contained the information as to the evidence found in the initial inventory searches of the two vehicles, as well as the evidence found during the investigative searches. A search warrant was issued. The subsequent search of the two cars uncovered 530 grams of methamphetamine, various chemicals used in the manufacture of methamphetamine, glassware, tubing and other laboratory items, and a number of handguns.
Drug charges were brought against all four of the appellants. The district court denied the appellants' motion to suppress the evidence found during the inventory and investigatory searches. After the denial of the motion, appellants Aune and Wanless pleaded guilty to possessing methamphetamine under 21 U.S.C. Sec. 844, while appellants Tompkins and Beck pleaded guilty to a single count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. All of the appellants' guilty pleas were conditional; they each reserved the right to appeal the denial of the motion to suppress the evidence. This appeal timely followed.
As a preliminary matter, we note that all four appellants have challenged the inventory searches of the two vehicles. Because Fourth Amendment rights are personal and may not be vicariously asserted, Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978), as a general rule, only the owner of the vehicles or an individual with a legitimate privacy interest in the vehicles may challenge an allegedly illegal search. See United States v. Broadhurst, 805 F.2d 849, 851-52 (9th Cir.1986). Here, the district court found that each of the appellants satisfied this requirement. However, we need not decide whether the district court was correct, because the government has never challenged, either at the suppression hearing or on appeal, the right of any of the appellants to contest the inventory searches.
Prior to 1978, the question whether an individual had the right to challenge a particular search was a question of standing, and hence jurisdictional. See, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, in Rakas, the Supreme Court held that the question whether an individual was entitled to contest the validity of a search should be analyzed "under substantive Fourth Amendment doctrine [rather] than under the heading of standing." Rakas, 439 U.S. at 139-40, 99 S.Ct. at 428; see also United States v. Broadhurst, 805 F.2d 849, 851 (9th Cir.1986). Accordingly, the question of whether any of the appellants may challenge the inventory searches is "not a threshold jurisdictional question," United States v. Whitney, 633 F.2d 902, 907 (9th Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981), and the failure of the government to raise the issue results in its waiver. United States v. Nechy, 827 F.2d 1161, 1164-65 (7th Cir.1987) (...
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