U.S. v. Jensen, 98-1435

• Decision Date: 25 February 1999
• Docket Number: No. 98-1435,98-1435
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas D. JENSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1044

169 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee, v. Thomas D. JENSEN, Defendant-Appellant.

No. 98-1435.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 1998.

Decided Feb. 25, 1999.

Daniel H. Parish (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael H. Saken (argued), Wheeling, IL, for Defendant-Appellant.

Before WOOD, JR., RIPPLE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Thomas Jensen conditionally pled guilty to one count of mail fraud. He reserved the right to appeal the district court's refusal to suppress evidence seized from a car in a warrantless search, and his resulting confession (the fruit, he claims, of a poisonous tree). We affirm.

I.

Thomas Jensen was returning merchandise to a Best Buy store in North Riverside, Illinois, when he caught the attention of a store security guard. The guard recalled that Jensen had been in the store a few days earlier returning merchandise, and at that time had printed one name on a return receipt and then signed another name. The guard suspected fraud, and called local police. Sergeant Anthony Garvey and Officer Debra Ecklund responded to the call. The officers and the security guard approached Jensen and asked if they could speak to him in the store security office. Jensen agreed, but as the group approached the office, Jensen bolted for the exit. The officers pursued him, chasing him first into a nearby Wendy's restaurant, where he pushed Officer Ecklund as he ran out again. He next charged into Sally's Beauty Supply, and unwittingly trapped himself in the employee lounge at the back of the store, from which there was no exit. Sergeant Garvey arrested Jensen on charges of battery and criminal trespass to property, and other officers transported him back to the police station.

At the station, Officer Ecklund read Jensen his Miranda rights, and he signed a waiver of those rights. He explained to Officer Ecklund that he was returning an item he had purchased at a Best Buy in Colorado. He told her that he had driven from California to Illinois in a car owned by his stepfather, Donald Matthews. He claimed to have run from the police because he was scared.

Officer Ecklund contacted Matthews at his home in California later that evening, and confirmed that he owned the car. She also verified that Jensen had Matthews' permission to drive the car. Matthews asked Officer Ecklund where his car was, and she informed him it was in the Best Buy parking lot. He asked what would happen to the car, and Ecklund told him it was up to him. He asked if the car could be towed and what the cost would be, and Ecklund told him the price of a private tow and daily storage. Matthews then asked if the police could somehow secure his car until he could send his other son to Illinois to pick it up. Officer Ecklund responded that, with permission from her sergeant, she could drive the car to the police station and store it there. She also told Matthews that if she drove the car to the station, the police would have to inventory the car in order to protect themselves. Matthews replied that the inventory "wasn't a problem," and "that would be great."

In the meantime, after Sergeant Garvey learned about the car from Officer Ecklund's interview with Jensen, he returned to the Best Buy parking lot where he found a 1993 Volvo matching Jensen's description of the car. Because the officers had initially been called in to investigate a possible fraudulent return, Sergeant Garvey decided he would like to search the car. He returned to the station to question Jensen about the car at approximately the same time that Officer Ecklund was talking to Matthews. Unaware of Ecklund's conversation with Matthews, Sergeant Garvey approached Jensen and asked for his consent to search the car. Jensen replied, "Well, I can't give you permission to search that car because it's my stepfather's car." Garvey ended the discussion at that point.

Later that evening, Officer Ecklund told Sergeant Garvey that she had spoken to the owner of the Volvo, who had requested that the police drive the car to the station and secure it until he could have another son fly out to pick it up. Garvey asked if Matthews had been told the car would be inventoried under those circumstances, and Ecklund confirmed that Matthews understood this and agreed to the procedure. Sergeant Garvey then picked up the car and drove it to the police station. Over the course of the next day, police officers took an inventory of the extensive contents of the car, including thousands of dollars worth of software, credit slips from Best Buy, detailed logs with credit receipts, approximately $8000 in cash and travelers' checks, and approximately $4000 in Office Depot checks.

The North Riverside police alerted the FBI, and two special agents arrived the next morning to interview Jensen. When confronted with the mound of evidence seized from the car, Jensen confessed that he had been engaged in a two year scheme to defraud retail stores across the country. The scheme involved purchasing merchandise at reduced prices, which Jensen accomplished primarily by switching price tags. He would then return the merchandise for a full refund. The stores often refused to issue cash refunds, instead insisting on mailing refund checks to Jensen. Jensen used a number of different names and addresses to receive the refund checks. Because Jensen used the mails to accomplish his scheme, federal authorities eventually charged him with mail fraud. Jensen was arrested on federal charges approximately one month after he was released on bond from the local charges of trespass and battery.

In the district court, Jensen moved to suppress the evidence seized from the Volvo and his resulting confession. He contended that the officers acted without a warrant, and without his consent. After holding a hearing at which Jensen, Matthews, Ecklund and Garvey all testified, the district court denied the motion, and upheld the search on four different grounds. United States v. Jensen, 1997 WL 610462 (N.D.Ill. Sept. 19, 1997). First, the court found that Jensen abandoned his interest in the car and had no reasonable expectation of privacy in its contents. Second, the court found that the search was conducted pursuant to consent from Matthews, the owner of the car. Third, the court ruled that the search was valid under the inventory exception, in light of Matthews' request to the officers to take the car under their care. Fourth, the search was allowable, according to the district court, because the police could have seized the car under their community caretaking function, at which time the inventory exception would again apply. On the basis of this ruling, Jensen pled guilty conditionally, reserving his right to challenge on appeal whether the search of the Volvo was conducted constitutionally.

II.

Jensen raises five separate issues on appeal. First, he faults the district court for crediting the testimony of Sergeant Garvey and Officer Ecklund, testimony that he characterizes as "exceedingly improbable." Second, he contends that the court erred in concluding that he had abandoned the car and thus lacked standing to bring a Fourth Amendment claim. Third, he asserts that the court erred in finding that Matthews' consent to search the car was valid. Fourth, he contests the district court's ruling that the police department could have legitimately seized and searched the car under its community caretaking function. Finally, he posits that if the search of the car was improper, then his confession should also have been suppressed under the "fruit of the poisonous tree" doctrine. Of course, if we affirm any one of the district court's rationales for upholding the search, Jensen's appeal fails in whole.

A.

We consider Jensen's challenge to the court's credibility determinations first, for much of the district court's reasoning rested on the testimony of Sergeant Garvey and Officer Ecklund. We review the district court's credibility determinations for clear error. Fed. R. Civ. Pro. 52(a); Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). ¹ We defer to the trial court's credibility determinations because "only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Anderson, 470 U.S. at 575, 105 S.Ct. 1504. When a trial judge credits the testimony of one witness over another, "each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that [credibility] finding, if not internally inconsistent, can virtually never be clear error." Id. See also, United States v. Stribling, 94 F.3d 321, 323 (7th Cir.1996) (because the resolution of a motion to suppress is fact-specific, appellate court specially defers to the court that heard the testimony and observed witnesses at suppression hearing); United States v. Veras, 51 F.3d 1365, 1370-71 (7th Cir.1995), cert. denied, 516 U.S. 999, 116 S.Ct. 540, 133 L.Ed.2d 444 (1995) (no clear error where district court finds testimony of one witness more credible than another, and the finding is supported in the record); United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir.1990) (trial judge's choice of who to believe is binding on the appellate court unless the judge credits exceedingly improbable testimony).

Jensen maintains that the testimony of Officer Ecklund and Sergeant Garvey was exceedingly improbable in three respects. First, Jensen complains that Garvey's story is fatally flawed (indeed, Jensen calls Garvey's testimony "insulting") because no veteran police officer who wanted to search a car would simply give up when a suspect denied he had authority to consent to a search. According to Jensen, Garvey would have given up that quickly...