U.S. v. Betterton, 04-2151.

• Decision Date: 02 August 2005
• Docket Number: No. 04-2151.,04-2151.
• Citation: 417 F.3d 826
• Parties: UNITED STATES of America, Appellee, v. Darcy Jay BETTERTON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.3d 826

UNITED STATES of America, Appellee, v. Darcy Jay BETTERTON, Appellant.

No. 04-2151.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2004.

Filed: August 2, 2005.

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Keith E. Uhl, argued, Des Moines, Iowa, for appellant.

Kevin C. Fletcher, argued, Asst. U.S. Attorney, Sioux City, Iowa, for appellee.

Before BYE, HANSEN, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Darcy Jay Betterton appeals his conviction on three counts of possession with intent to distribute a controlled substance after having been previously convicted of at least one felony drug offense, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B) and 851. In addition, Betterton raises for the first time on appeal the argument that his sentence, based on the application of the United States Sentencing Guidelines in a mandatory fashion, was unconstitutional. For the reasons discussed below, we affirm the conviction but vacate Betterton's sentence and remand to the district court for resentencing.

I. BACKGROUND

Betterton was stopped by Carroll, Iowa police officer Jason Fett because the car Betterton was driving had a cracked windshield which impeded the driver's line of sight. Betterton immediately admitted to Officer Fett that his driver's license was suspended. Betterton also informed Officer Fett that the car belonged to his girlfriend, Pam Jones. Officer Fett decided to arrest Betterton for driving with a suspended license. Because the car was stopped in a no-parking area on a busy street, Officer Fett called on another officer, Officer Fleecs, to make arrangements for the car to be towed to a secure bay at the police station for an inventory search pursuant to an unwritten Carroll Police Department impoundment policy. Officer Fett then drove Betterton to the police station, where he was booked and released. Officer Fleecs had the vehicle towed to the station. Betterton made several phone calls from the station in an attempt to find someone to pick up the car, but he initially was unsuccessful.

Before the inventory search of the vehicle commenced, Betterton's friend Donna Vonnahme arrived at the station to pick up the car. Officer Fett informed Vonnahme that he was obligated to inventory the vehicle before releasing it. In addition, Officer Fett learned that Vonnahme did not have cash to pay the tow bill. After Vonnahme returned with sufficient cash, Officer Fett informed her that only the registered owner of the car could sign for it. Shortly thereafter, Pam Jones, the registered owner, arrived to sign for the car. Officer Fett told Jones he would call her when the inventory was completed.

Officers Fett and Fleecs then performed the inventory search. In the back seat, they discovered a zipped black bag of the type commonly used to hold a laptop computer. The bag contained methamphetamine, cocaine and marijuana, as well as drug paraphernalia and cash. Officer Fett immediately left to prepare a warrant for Betterton's arrest, while Officer Fleecs completed the inventory search.

Betterton was indicted on three counts of possession with intent to distribute a controlled substance after having been previously convicted of at least one felony drug offense, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 851. During his jury trial, the prosecution introduced evidence of his two prior convictions of possession with intent to deliver methamphetamine via testimony from the arresting officers and certified copies of the judgments. The jury was instructed that this evidence could only be used to prove Betterton's intent, knowledge, motive, and lack of mistake or accident in carrying out the acts charged in the indictment. The jury found Betterton guilty on all three counts. He was sentenced to concurrent prison terms of 360 months on count one, 360 months on count two, and 120 months on count three. Betterton appeals the district court's admission of evidence obtained from the inventory search and of evidence of his prior convictions. Betterton also raises for the first time on appeal the argument that he was unconstitutionally sentenced under a mandatory application of the Sentencing Guidelines.

II. DISCUSSION

A. The Inventory Search

The district court denied Betterton's motion to suppress the evidence obtained from the inventory search. We review the district court's factual findings for clear error and its conclusions of law de novo. United States v. Escamilla, 301 F.3d 877, 879 (8th Cir. 2002).

Betterton contends that the inventory search violated the Fourth Amendment. To be constitutional, "[a] warrantless inventory search must be done pursuant to `standard police procedures' and for the purpose of `protecting the car and its contents.'" United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) (quoting South Dakota v. Opperman, 428 U.S. 364, 372, 373, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)). "[P]olice may exercise discretion to impound a vehicle, `so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.'" United States v. Petty, 367 F.3d 1009, 1012 (8th Cir.2004) (quoting Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987)).

Betterton argues that the Carroll Police Department's lack of a written policy controlling the decision to impound a vehicle gave its police officers unconstitutionally broad discretion.¹ However, the absence of a written policy controlling the decision to impound a vehicle does not automatically render an inventory search unconstitutional. While a written policy may be preferable, testimony can be sufficient to establish police impoundment procedures. Petty, 367 F.3d at 1012. In addition, an impoundment policy may allow some latitude and exercise of judgment by a police officer when those decisions are based on "legitimate concerns related to the purposes of an impoundment." Id.

Officer Fett testified that it was within his discretion to impound the car because it was stopped in a traffic lane in a no-parking zone and would be a hazard if left in that location. "The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." Opperman, 428 U.S. at 369, 96 S.Ct. 3092. In addition, the officers could not allow Betterton himself to drive the car to a safer location because Betterton's license was suspended. Officers Fett and Fleecs both testified that they had no awareness of any criminal history on the part of Betterton and had no reason to suspect the inventory search would yield evidence of criminal activity. Therefore, the district court did not err in concluding that the decision to impound was based on the legitimate concern of traffic safety and was "not merely `a ruse for general rummaging in order to discover incriminating evidence.'" Petty, 367 F.3d at 1012 (quoting Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)).

Betterton also argues that the public safety interest also would have been served if the police had remained at the scene of the traffic stop and allowed Vonnahme to pick up the car. However, "[n]othing in the Fourth Amendment requires a police department to allow an arrested person to arrange for another person to pick up his car to avoid impoundment and inventory." United States v. Agofsky, 20 F.3d 866, 873 (8th Cir.1994).

Finally, Betterton contends that the failure to immediately release the car to its owner, Pam Jones, when she arrived at the station before the inventory search had commenced violated Iowa Code § 321J.4B(5)(a) (2002), which states:

The following persons shall be entitled to immediate return of the motor vehicle without payment of costs associated with the impoundment or immobilization of the vehicle:

(1) The owner of the motor vehicle, if the person who operated the motor vehicle is not a co-owner of the motor vehicle.

Although it is doubtful that § 321J.4B(5)(a) applies to prevent an inventory of a vehicle after it has been impounded, we do not need to address the issue here. By its own terms, § 321J.4B(5)(a) only applies to impoundments resulting from a violation of § 321J.2, "Operating while under the influence of alcohol or a drug or while having an alcohol concentration of .08 or more (OWI)." See Iowa Code § 321J.4B(2). Because there was no § 321J.2 violation in connection with this case, § 321J.4B(5)(a) does not apply.

We conclude that the district court did not err in denying Betterton's motion to suppress the evidence obtained from the inventory search.

B. Evidence of Prior Convictions

The district court denied Betterton's motion to exclude evidence of his two prior convictions for possession of methamphetamine with intent to distribute. We review the district court's admission of evidence of past crimes under Fed.R.Evid. 404(b) for abuse of discretion, and we will not reverse unless the evidence "clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." United States v. Williams, 308 F.3d 833, 837 (8th Cir.2002) (quoting United States v. Howard, 235 F.3d 366, 372 (8th Cir.2000)).

For evidence of past crimes to be admissible under Rule 404(b), the evidence must be (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the charged crime; (3) supported by sufficient evidence; and (4) such that its potential prejudice does not substantially outweigh its probative value. Williams, 308 F.3d at 837.

Betterton argues that his prior convictions were not relevant to a material issue. However, evidence of past drug-related crimes is relevant to establish knowledge and intent for the charged drug offense. See, e.g., United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir.2005) (holding two prior convictions for distribution of crack relevant to show intent to...