U.S. v. Griffin

• Decision Date: 13 April 1984
• Docket Number: No. 83-1523,83-1523
• Citation: U.S. v. Griffin, 729 F.2d 475 (7th Cir. 1984)
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles E. GRIFFIN and Jerome Griffin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 475

729 F.2d 475

UNITED STATES of America, Plaintiff-Appellant, v. Charles E. GRIFFIN and Jerome Griffin, Defendants-Appellees.

No. 83-1523.

United States Court of Appeals Seventh Circuit.

Argued Sept. 27, 1983.

Decided Feb. 28, 1984.

As Amended Feb. 29, 1984.

Rehearing Denied April 13, 1984.

David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., for plaintiff-appellant.

Joseph W. Ruppert, Bowman, Crowell & Teeters, Fort Wayne, Ind., for defendants-appellees.

Before BAUER, ESCHBACH and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The Government appeals the order of the United States District Court for the Northern District of Indiana, granting defendants' Motion to Suppress the introduction into evidence of 805 grams of phencycledine. We reverse.

I

The evidence at the motion to suppress hearing revealed that on December 2, 1982, at approximately 5:30 p.m., Indiana State Trooper Zimmerman spotted a speeding 1982 Corvette on the Indiana Toll Road. Zimmerman, whose roof-mounted lights were not functioning, motioned the driver to pull off the roadway by shining a spotlight on the rear window of the vehicle, but the driver responded by speeding away. Zimmerman radioed a general description of the Corvette to other officers in the area, but was unable to provide a license number as the license plates were too dirty to discern. Soon thereafter, a toll road attendant radioed that a silver Corvette, answering Officer Zimmerman's description, had exited the Indiana Toll Road at the Middleberry exit. Approximately one-half hour later the attendant radioed that the same vehicle had returned to the toll road but that the license plates remained unidentifiable. After hearing the attendant's description of the Corvette over his police radio, Indiana State Trooper Kensil radioed officers in the area that three months earlier he had stopped a silver Corvette traveling 134 m.p.h. on the Indiana Toll Road. Kensil supplied the officers with the California license number of the vehicle he had stopped and identified the driver as a Charles Griffin of Gary, Indiana.

Indiana State Trooper Hostetter, who was monitoring his radio and patrolling the Indiana Toll Road on the evening of December 2, 1982, positioned himself in the emergency lane of the roadway in order to observe the oncoming Corvette. As the vehicle passed the squad car's position, Hostetter pulled onto the roadway and followed the Corvette but was unable to determine the license number due to the dirty license plates. Concerned that this Corvette might be the same one that had previously eluded Officer Zimmerman, Hostetter continued to follow closely. Once the Corvette approached the proximity of other state troopers positioned along the roadway, Hostetter flashed his roof-mounted lights and the driver of the Corvette pulled into the emergency lane of the toll road.

Officer Hostetter approached the Corvette and informed the driver that he had been stopped for an "improperly displayed registration" (unidentifiable license plate). Hostetter asked the driver for his operator's license and vehicle registration but the driver was unable to produce either document. Hostetter then asked for any form of identification and the driver handed Hostetter an "Illinois identification card" with the name Jerome Griffin inscribed thereon. Hostetter instructed Jerome Griffin to exit the 1982 Corvette and join him in the squad car, and while there, Jerome stated that he had no valid Illinois driver's license, only an expired California driver's license. Hostetter advised Jerome that he would receive a warning for the improperly displayed registration but that he would be cited for failing to possess a valid operator's license. When informed that the fine for operating an automobile without a valid license was between $40.00 and $50.00, Jerome asked for and was given permission to borrow the money needed to pay his fine from his cousin Charles Griffin, the passenger.

During the period that Hostetter was questioning Jerome Griffin, Officer Nufer observed that the 1982 silver Corvette had a California license number identical to that of the Corvette stopped by Officer Kensil some three months earlier on the Indiana Toll Road. When the passenger of the vehicle presented Nufer with a valid Indiana driver's license in the name of Charles Griffin, Nufer identified Charles as the driver of the Corvette that had been ticketed three months earlier for travelling 134 m.p.h. on the Indiana Toll Road. Nufer ran a routine check on Charles Griffin in Lake County, Indiana, Charles's county of residence, and learned that an outstanding bench warrant existed for Charles's failure to appear in court on October 8, 1982, for an unrelated traffic violation. Based upon this information, Nufer arrested Charles Griffin and placed him in custody.

Jerome Griffin obtained the cash needed to pay his fine from Charles, and then informed Charles that the Indiana State Police were going to impound the Corvette because neither Jerome, who had no valid driver's license, nor Charles, who was under arrest, could lawfully remove the vehicle from the toll road. Charles objected and suggested that the vehicle remain parked in the emergency lane of the roadway until Charles's girlfriend arrived to drive it back to Gary, Indiana. ¹ Officer Hostetter refused to leave the automobile on the side of the well-traveled Indiana Toll Road due to the danger it presented to passing nighttime motorists and the high incidence of theft inherent in a late model sports car such as a 1982 Corvette. Hostetter also recalled a previous incident wherein an officer allowed alleged friends of a driver to remove the driver's automobile from the highway and the friends decided to steal the automobile. Rather than expose himself or the Indiana State Police Department to unwarranted liability, by allowing an unknown third party to remove a vehicle whose ownership had not yet been determined, ² Hostetter followed the "standard operating procedure" of the Indiana State Police Department and impounded the vehicle.

Hostetter directed Jerome Griffin to lock the Corvette and the two of them proceeded to the courthouse in Fremont, Indiana, while Nufer began his portion of the westbound relay of Charles Griffin to Lake County, Indiana. ³ In the Fremont court, Jerome pleaded guilty to the charge of failing to possess a valid operator's license and paid the statutory fine and costs. During Jerome's court appearance, Roger Fulton arrived at the courthouse in response to Hostetter's request that the towing service provide a driver to remove the Corvette from the Indiana Toll Road. It was standard procedure to allow the towing service to drive a Corvette, rather than tow it, due to the possibility that towing might damage the sports car's transmission and/or fiberglass body. ⁴

Before driving Fulton to the location of the Corvette, Hostetter offered to arrange for a westbound bus to transport Jerome Griffin back to Gary, Indiana. Jerome accepted the offer but requested permission to accompany Hostetter and Fulton to the Corvette in order that he might retrieve his apartment keys. During the trip from the courthouse to the Corvette, Jerome gave his automobile keys to Fulton pursuant to Hostetter's instructions. When the three of them arrived at the vehicle, Fulton unlocked the driver's door and allowed Jerome to search for his apartment keys. Officer Hostetter next instructed Jerome to unlock the passenger's door so that Hostetter could assist Jerome in his search for the keys and begin the routine inventory search of the vehicle. ⁵ While checking for the presence of valuables, Hostetter reached into the open area behind the passenger's seat of the two-seat vehicle and removed the lid from an unlocked storage compartment. Hostetter observed two hand guns within the compartment and replaced the storage lid. Hostetter next searched the elasticized map pouch in the passenger door, found Jerome's apartment keys therein, and returned the same to Jerome.

Following the discovery of Jerome's keys, Hostetter checked the revolvers to determine if they were loaded. He observed that ammunition clips were in the weapons and also that an unsecured brown paper bag was lying beneath the two revolvers in the unlocked storage compartment. Hostetter removed the unsecured brown paper bag from the compartment and immediately detected an unusual odor emanating from the bag. Hostetter opened the unsecured brown paper bag, and within the bag discovered a package wrapped in brown paper and secured with fibrous plastic tape. Rather than opening the package at that time, Hostetter placed the package back inside the brown paper bag, returned the bag and the revolvers to the compartment, and instructed Fulton to drive the Corvette to a maintenance area located "about two miles" down the highway. Jerome Griffin joined Hostetter in the police car and the two of them followed Fulton to the maintenance area that also served as a gasoline service station for the Indiana State Police Department.

Once at the maintenance area, Hostetter ran a routine check on the two revolvers with his command post but received no information on either revolver. As Hostetter continued to inventory and secure the items contained within the Corvette, he removed the unsecured brown paper bag from the storage compartment and became "suspicious" of its contents. Hostetter had no knowledge of what the brown paper bag contained but decided that for purposes of his inventory, he must itemize the bag's contents as he was "responsible for what [was] in it." Hostetter removed the tape wrapped package from the brown paper bag and opened an end portion, unsecured by tape, "to see what was in it to put down on [his] inventory." Hostetter observed a yellow substance in a clear plastic bag but did not open the plastic bag, instead he radioed Officer Nufer to join him at the maintenance area. Nufer, who had...