U.S. v. Judge, 87-1071

• Decision Date: 23 January 1989
• Docket Number: No. 87-1071,87-1071
• Citation: 864 F.2d 1144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin P. JUDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1144

864 F.2d 1144

57 USLW 2523

UNITED STATES of America, Plaintiff-Appellee, v. Kevin P. JUDGE, Defendant-Appellant.

No. 87-1071.

United States Court of Appeals Fifth Circuit.

Jan. 23, 1989.

Rehearing and Rehearing En Banc Denied Feb. 21, 1989.

Lawrence J. Vilardo, Buffalo, N.Y., for defendant-appellant.

Frederick M. Schattman, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARZA, HIGGINBOTHAM and SMITH, Circuit Judges.

GARZA, Circuit Judge:

Kevin P. Judge appealed to this court his conviction for distributing, traveling in interstate commerce to distribute, and conspiring to distribute a controlled substance, and we remanded the case to the District Court to make additional findings. U.S. v. Judge, 846 F.2d 274 (5th Cir.1988). Specifically, we asked the District Court to consider the question of whether Drug Enforcement Administration ("DEA") agents were acting pursuant to standard procedures when they conducted an inventory search of Judge's automobile and opened a closed backpack inside the automobile containing $65,000. Under the Supreme Court's decision in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), police may open closed containers in an inventory search of an automobile only if they are following standard procedures that mandate the opening of such containers in every impounded vehicle.

The $65,000 found in the backpack was admitted into evidence in Judge's trial. Judge appeals the admission of the $65,000 as fruits of an allegedly illegal search. We have previously heard argument from both sides in this appeal, and we remanded the case to the District Court for the limited purpose of determining whether the search of Judge's bag was done according to standard procedures as mandated by Bertine. The District Court has completed its findings, and we are now in a position to decide the merits of Judges' appeal.

In Bertine, the Supreme Court reiterated its position that an inventory search may be reasonable under the Fourth Amendment even though not conducted pursuant to a search warrant. An inventory of an automobile's contents protects the owner's personal property while it is in police custody and reciprocally protects the police against unfounded claims of lost, stolen, or damaged property. It also can protect the police against dangerous instrumentalities, such as a bomb, in the arrestee's possession. See Bertine, 479 U.S. at 367, 107 S.Ct. at 738, 93 L.Ed.2d at 739. See also South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).

Before beginning our analysis, it is important that we define the terminology that will be used and more precisely present the factual background. When Judge was arrested, his vehicle was seized because DEA agents had probable cause to believe it was used to facilitate the sale of controlled substances. Under the Controlled Substances Act, any conveyance so used is subject to forfeiture to the U.S. Government. 21 U.S.C.A. Sec. 881(a)(4) (West's 1981). Thus, Judge's vehicle was seized because it was subject to forfeiture to the United States; however, Judge's bag in the car's trunk was not part of the conveyance. The agents took Judge's bag and other personal belongings in the car for custodial safekeeping, even though there was not probable cause to believe they were subject to forfeiture. Only after opening the bag and discovering a large sum of money was there probable cause to believe the money was drug proceeds and therefore forfeitable under 21 U.S.C.A. Sec. 881(a)(6). We therefore must focus our inquiry on the agents' decision to open the closed bag under the guidelines contained in Bertine, which is applicable to inventory searches done for the purpose of custodial safekeeping. ¹

In this case, the District Court found that once a container is taken into custody, standard DEA procedures mandate that the container be opened and its contents inventoried. However, there are still two discretionary decisions inherent in the above determination. First, an agent must decide whether an object constitutes a "container." Second, an agent must decide whether or not to take the container into custody. Both these areas of discretion will now be analyzed in light of Bertine.

The determination of what constitutes a container is inherently discretionary. Suppose, for instance, that an agent finds a shaving kit inside a car. If the agent concludes that the shaving kit is a container, he is bound to open it and inventory its contents. However, if the agent determines for some reason that the kit is not a container, he may not open it, and must list it on the inventory sheet as merely a "shaving kit." Suppose, though, that our hypothetical DEA agent decided that the kit was a container and proceeded to open it, discovering inside among other articles a can of shaving cream and a tube of toothpaste. Is the can of shaving cream a container subject to being opened for an inventory? What about the tube of toothpaste? It all depends on the meaning the DEA agent accords to the word "container," which involves an exercise of discretion. Therefore, as a practical matter, the exercise of some discretion by agents, even if only interpretive, is inevitable since no manual can reasonably be expected to spell out in detail the correct action in light of the almost infinite array of objects an agent may encounter.

Here we should note that Bertine does not condemn all forms of police discretion, but only "evidentiary" discretion which is exercised on the basis of suspicion of criminal activity. ² This concern, when coupled with the recognized state "administrative" interest in preserving the impounded property and protecting the personal safety of police, provides us with a benchmark from which to determine when the exercise of police discretion exceeds constitutional bounds, even though that discretion may be conferred by standard procedures. Therefore, while it is true that the DEA manual's use of the word "container" vests agents with some discretion in determining whether an object is or is not a container, this is not necessarily a fatal flaw. Rather, we must next review the way in which the agents exercised that discretion. In this task, we are guided by the policy concerns enunciated in Bertine. Specifically, we must ask whether the agents' actions, when viewed from an objective standpoint, can reasonably be said to have an administrative or safety motivation, as opposed to an evidentiary one. ³ Thus, an agent may decide to classify an object as a container and proceed to inventory its contents. If that object is customarily used by most people to carry valuable items, or might reasonably contain a dangerous device which threatens the personal safety of the officer, then it is more probable that officer has stayed within the bounds of constitutional discretion. However, if an objective observer would conclude that the only legitimate purpose for opening a container found in a vehicle could have been to find evidence, the opening of the container was an illegal search. In the case at hand, we hold that the agents' decision that the bag was a container was within the bounds of administrative discretion, and was therefore permissible.

In addition to the above interpretive discretion regarding whether an object is a container, the DEA manual also confers discretion upon its agents regarding whether or...