U.S. v. Ibarra

• Decision Date: 05 February 1992
• Docket Number: No. 90-8018,90-8018
• Citation: 955 F.2d 1405
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Alejandro Garcia IBARRA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1405

955 F.2d 1405

UNITED STATES of America, Plaintiff-Appellant, v. Alejandro Garcia IBARRA, Defendant-Appellee.

No. 90-8018.

United States Court of Appeals Tenth Circuit.

Feb. 5, 1992.

Richard A. Stacy, U.S. Atty., and Lisa E. Leschuck, Asst. U.S. Atty., D. Wyo., Cheyenne Wyo., on the briefs for plaintiff-appellant.

Stephen M. Kissinger, Cheyenne, Wyo., on the briefs for defendant-appellee.

Before McKAY, Chief Judge, BALDOCK, Circuit Judge, and KANE, ¹ District Judge.

McKAY, Chief Judge.

On March 24, 1989, defendant was arrested and charged with possession with intent to distribute cocaine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) (1988). On November 15, 1989, the United States District Court for the District of Wyoming ordered suppressed certain evidence critical to the government's case against defendant. United States v. Ibarra, 725 F.Supp. 1195 (D.Wyo.1989). The government subsequently filed a motion for reconsideration, which the district court rejected on January 3, 1990. United States v. Ibarra, 731 F.Supp. 1037 (D.Wyo.1990). The government then appealed the suppression order to this court. We rejected the government's appeal, holding that the thirty-day period in which to timely file an appeal began running on the date of the district court's original order rather than on the date the district court denied the government's motion for reconsideration. United States v. Ibarra, 920 F.2d 702 (10th Cir.1990), vacated, --- U.S. ----, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991). Because more than thirty days had elapsed between the filing of the original order and the government's appeal, we dismissed the appeal. Id. The government appealed that dismissal to the United States Supreme Court, which vacated our decision. United States v. Ibarra, --- U.S. ----, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991). We therefore now proceed to consider the merits of the government's earlier appeal to this court.

I.

On March 24, 1989, defendant and a companion were travelling east on Interstate 80 through Wyoming at a lawful rate of speed in a white 1981 Oldsmobile Cutlass with California license plates. During this time, Wyoming Highway Patrolman Scott Mahaffey observed that defendant appeared to be driving at a slower speed than other traffic and weaving within his marked lane. Suspecting that defendant may have been intoxicated, Officer Mahaffey followed the vehicle for approximately five miles. While following the vehicle, Officer Mahaffey saw it pass two other vehicles without signaling. Officer Mahaffey also observed defendant's vehicle cut in front of another vehicle. After noticing further intermittent weaving, Officer Mahaffey then stopped the vehicle to determine whether the defendant was intoxicated.

Officer Mahaffey approached the driver's side of the vehicle and asked defendant for his driver's license, which defendant promptly produced. When Officer Mahaffey informed defendant that he had stopped him for failing to signal prior to making lane changes, defendant responded Officer Mahaffey then returned to his patrol car to issue a warning ticket to defendant and to run a check on defendant's driver's license. This check revealed that defendant's license had expired. Using his loudspeaker, Officer Mahaffey requested that defendant bring his vehicle registration to the patrol car. When defendant complied, Officer Mahaffey told defendant about the expired license and wrote a citation which required defendant to post a $220 appearance bond in order to avoid immediate arrest. Defendant returned to his vehicle and produced the required bond money.

                that he thought he had signaled, but perhaps he had not.   Although Officer Mahaffey stated that he had stopped defendant for suspicion of driving under the influence of alcohol, he failed to pursue an investigation of this possible offense other than by conducting a cursory examination of defendant's appearance and behavior
                

After receiving the money for the bond, Officer Mahaffey told defendant that the ownership of the vehicle was in doubt because the registration and ownership certificate bore the name of Charles J. Petrocchi. Defendant explained that he had recently purchased the vehicle from Mr. Petrocchi. Officer Mahaffey then asked his dispatcher to try to contact Mr. Petrocchi to determine whether the vehicle in fact belonged to defendant. Meanwhile, a second Wyoming highway patrol officer arrived at the scene and sat in the back seat of Officer Mahaffey's patrol car.

Defendant then told Officer Mahaffey that he had only $40 remaining with which to travel to Chicago. Officer Mahaffey asked defendant the reason for his travel to Chicago. Defendant responded that he intended to visit some friends there. He later changed his story, however, by stating that he actually was moving to Chicago. Because Officer Mahaffey had seen only a few possessions in defendant's vehicle, he became suspicious of defendant's story. He asked defendant whether the vehicle contained any weapons, large amounts of money, or any controlled substances. Defendant answered "no." Officer Mahaffey then asked whether he could look at the contents of the vehicle. Defendant consented. The officers and defendant got out of the patrol car and approached defendant's vehicle. Officer Mahaffey asked if he could look in the trunk. Without verbally responding, defendant opened the trunk. The trunk contained several nylon bags. Without asking whether he could search the bags, Officer Mahaffey opened them but discovered nothing unusual. Officer Mahaffey then searched the passenger compartment while the other officer, Greg Leazenby, continued to search the trunk. The search of the vehicle revealed nothing unusual or illegal. Defendant then shut his trunk.

Officer Mahaffey then informed the passenger in the vehicle that because defendant could not drive without a valid license, she would need to drive the car provided she could produce a valid license. Her license, however, turned out also to be expired. Then, without consulting defendant, Officer Mahaffey contacted a private wrecker to tow defendant's vehicle to Laramie, Wyoming, which was a short distance away. Officer Mahaffey told defendant that his vehicle would be released when defendant could produce a licensed driver to operate the vehicle.

The officers then drove defendant and his passenger to a Western Union station where they could wire for extra money and find a licensed driver. During this trip, Officer Mahaffey spoke with the wife of Mr. Petrocchi, who informed him that Mr. Petrocchi had in fact sold the vehicle to defendant several weeks earlier. Officer Mahaffey also learned at that time that defendant had no liability insurance for the vehicle.

After dropping off defendant and his passenger at the Western Union station, the officers went to Warren's towing, which had towed defendant's vehicle. There they renewed their search of the vehicle. The officers believed that they had defendant's continuing consent to search the vehicle despite their failure to ask defendant whether that in fact was the case. During the search, the officers removed The primary issues raised on appeal are 1) whether the impoundment of defendant's vehicle was reasonable under the Fourth Amendment; 2) whether the suppressed evidence would have inevitably been discovered; and 3) whether the second search of defendant's vehicle was proper under a theory of continuing consent. ²

                the nylon bags from the trunk and lined them up on the ground next to the vehicle.   This is a typical procedure followed when conducting an official inventory of an impounded vehicle.   After removing those items, the officers discovered a plastic bag behind the spare tire.   This bag was removed from the vehicle.   It was found to contain several clear plastic gloves and a large package wrapped with duct tape.   Through a cut in the tape Officer Mahaffey saw a white powdery substance which turned out to be cocaine.   He then returned to the Western Union station and arrested defendant.   A federal grand jury later indicted defendant for possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)
                

II.

The Fourth Amendment protects individuals and their property from unreasonable searches and seizures by the government. United States v. Place, 462 U.S. 696, 700, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). "When a search and seizure is challenged as violative of the Fourth Amendment, the burden is on the government to prove its validity." United States v. Mendenhall, 446 U.S. 544, 550, 100 S.Ct. 1870, 1875, 64 L.Ed.2d 497 (1980); United States v. Carreon, 872 F.2d 1436, 1441 (10th Cir.1989).

Defendant contends that the impoundment of his automobile was an unlawful seizure, and therefore any evidence found during a subsequent search of the seized vehicle should be suppressed as "fruit of a poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963). Following an evidentiary hearing on defendant's motion to suppress, the district court held that Officer Mahaffey's impoundment of defendant's vehicle was not authorized by law and therefore violated the Fourth Amendment. As a result, the district court granted defendant's motion to suppress. We must affirm this ruling unless we find it to be clearly erroneous. United States v. Rinke, 778 F.2d 581, 589 (10th Cir.1985) ("[A] district court's ruling on a motion to suppress will be affirmed unless shown to be clearly erroneous.").

Wyoming law provides that a police officer may move an illegally stopped or abandoned vehicle from a public roadway to a place of safety. ³ Under Wyoming law, police officers may only remove an illegally stopped vehicle if it obstructs the normal movement of traffic, Wyo.Stat.Ann. § 31-5-508(b), or under the following circumstances:

(i) Report has been made that the vehicle has been stolen or taken without the consent of...