Hill v. United States

• Decision Date: 03 July 1986
• Docket Number: No. 84-1788.,84-1788.
• Citation: 512 A.2d 269
• Parties: Kevin E. HILL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 269

512 A.2d 269

Kevin E. HILL, Appellant, v. UNITED STATES, Appellee.

No. 84-1788.

District of Columbia Court of Appeals.

Argued November 25, 1985.

Decided July 3, 1986.

Jonathan Krinick, Washington, D.C., for appellant.

Mark S. Dreux, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. and Michael W. Farrell, Linda Chapman, and Harriet J. McFaul, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before FERREN, BELSON and STEADMAN, Associate Judge.

FERREN, Associate Judge:

After a bench trial, the court convicted appellant for possession of cocaine, D.C. Code § 33-541(d) (1985 Supp.), and sentenced him to consecutive prison terms of one year for the possession of cocaine and 90 days for the violation of pretrial release conditions in another case. Appellant contends that the police found the cocaine during an illegal inventory search of his unlawfully impounded car, and thus that the trial court erroneously denied his motion to suppress evidence. He also asserts that the trial court committed reversible error when the court, itself, introduced evidence of appellant's prior convictions. We affirm.

I.

According to testimony at the suppression hearing, on the night of May 29, 1984, Metropolitan Police Officers Randall and Stewart observed someone, later identified as appellant, in the driver's seat of a Volkswagen which another man was pushing down the street toward the curb. The officers noticed that the car had a homemade, cardboard license tag, with several numbers written on it, instead of properly issued tags. They stopped to investigate.

According to Officer Randall, when she and Officer Stewart asked appellant for his license and registration, he replied that the car was not his, that it had been "rolling down the street," and that he had jumped inside to "stop it from running into someone else." Randall further testified that appellant acknowledged he did not have a certificate of registration for the car and did not have a driver's license. She added that a WALES inquiry confirmed that appellant's driver's license had been suspended.¹

Officer Randall testified that she and Stewart then arrested appellant for driving with a suspended license. Randall removed the keys from the Volkswagen "for safety" and shut the car door. She added, "We couldn't just leave the keys in the car." The officers drove appellant to the police station, where one of them called for a crane to tow the car to the impoundment lot. In the meantime, Officer Randall, who had kept the keys, began the standard procedure for inventorying a prisoner's property and logging it into the police property book. The keys were attached to a zippered case that looked like a wallet. Because Randall previously had felt something inside the key case and thought it was money, she opened the case, intending to make an entry in the property book identifying the contents. Inside, she found several aluminum foil packets. They contained what later was identified as cocaine.

II.

Appellant contends the trial court erroneously denied his motion to suppress because the police unlawfully had impounded the Volkswagen and conducted an illegal inventory search that yielded the key case and, eventually, the cocaine.

A.

Initially, we note that, in order to assert standing to challenge the impoundment and search, appellant had to claim a legitimate expectation of privacy in the Volkswagen and its contents. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); United States v. (Harvey) Johnson, 496 A.2d 592, 595 (D.C. 1985). In his motion to suppress and later at the suppression hearing, appellant asserted that the car, the keys, and the key case were his. This claimed property interest is enough to establish the required expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978).

We note that Officer Randall testified, at the suppression hearing, that at the time of appellant's street encounter with the police he denied owning the Volkswagen; she said appellant claimed he merely had jumped into a car "rolling down the street." Appellant testified, to the contrary, that he had told the police the car was his. Supra note 1. The trial court made no finding as to this conflicting testimony. That does not matter, however, since both the government and appellant have proceeded from the premise that the car and the key case, containing cocaine, belonged to appellant.

This is not to say that the unresolved question whether appellant asserted an ownership interest in the Volkswagen at the time of arrest is altogether irrelevant. Theoretically, it could have a bearing on determining what police impoundment regulation, if any, applied under the circumstances — a merits issue with which we deal later.

B.

There is another intriguing, threshold question. Is the opening and search of appellant's wallet-like, zippered key case at the police station better characterized as part of the inventory search of appellant's automobile, since Officer Randall removed the keys and case directly from the Volkswagen at the time of appellant's arrest and took them with her to the station solely "for safety" before the tow truck arrived? Or is the search of the key case more properly viewed as part of an inventory of appellant's personal effects, since Officer Randall brought it, with appellant, to the police station and searched it there instead of leaving it locked in the car awaiting impoundment?²

This issue is of significance for two reasons: First, if this was an automobile inventory, there is an unresolved question whether the police were entitled to open a closed container found inside, such as the zippered key case,³ whereas the police appear to have unlimited constitutional authority to open closed containers found during a personal effects inventory of a suspect at the police station.⁴ Second, if this was, instead, a personal effects inventory, it was justified only if appellant was to be booked and jailed,⁵ whereas police authority to impound and inventory and automobile is not necessarily related to the custodial or liberty status of the owner.⁶

These distinctions between automobile and personal effects inventories may be narrowed if not substantially eliminated when the Supreme Court decides Colorado v. Bertine, supra note 3, next term. In the meantime, we have to resolve this case, and either characterization of the inventory at issue presents problems.

If the search of the key case can better be characterized as part of the automobile inventory, then any question about jailing appellant will be irrelevant and our focus will be on whether the police properly opened a zipper-closed container found inside the car. If, however, the search of the key case, under the circumstances, had become a personal effects inventory by the time the police arrived with appellant at the police station, then the authority to open the zipper-closed container is easily established, but we would have to remand for a finding as to whether appellant "was to have been incarcerated after being booked," Illinois v. Lafayette, 462 U.S. 640, 648 n. 3, 103 S.Ct. at 2611 n. 3 (1983); see supra notes 4 and 5, since the record of this case does not tell us.⁷

On this record, we conclude that the search of the key case emanated, fundamentally, from the impoundment and inventory of an unregistered automobile from which Officer Randall took the keys "for safety" (and, of necessity, for verification of ownership) rather than leave them in the car until the tow truck arrived. The search is not as easily characterized as an inventory of appellant's personal effects, for the key case was not taken from appellant himself, and, in any event, it was taken before the police and appellant arrived at the station where a personal effects inventory by definition takes place.⁸

If the police had been satisfied that appellant owned the car, had permitted appellant to keep the keys during the trip to headquarters, and thus had excluded the keys and key case from their automobile impoundment responsibilities, the situation would have been different. The only available "inventory" basis for searching the key case would have been a personal effects inventory at the police station. See supra note 8. But, because the police took the keys from the car and kept them, the key case retained its status as part of the automobile subject to inventory.

The unregistered, unlawfully tagged automobile and its contents presumably would be in police custody for some time as the police attempted to verify ownership and decide upon the appropriate disposition.⁹ Thus, appellant's car and its contents were subject to inventory and property recordation without regard to his personal status — liberty or incarceration — after booking.

Whatever stress on incarceration is inherent in Layfayette's reasoning, therefore, that concern is irrelevant here. Whether appellant were to be released immediately or not, the police would retain the keys and key case for a while and have to account for them as part of the automobile inventory. The fortuity of the key case inventory taking place at the police station while appellant was being processed — whereas the rest of the automobile inventory would be happening later at the impounding lot — cannot force a limitation on the scope of an otherwise lawful automobile inventory. The crucial fact is that the police took the keys and key case from an impounded car, not directly from an arrested person at the police station as in Lafayette.

C.

Three questions remain: (1) whether the police impounded the car lawfully; (2) if so, whether they lawfully could inventory its contents, including the contents of appellant's zippered-shut key case; and (3) if so, whether the police inventory procedures themselves are lawful and were lawfully implemented.

(1)

We consider, first, the legality of the...