U.S. v. Judge, 87-1071

• Decision Date: 20 May 1988
• Docket Number: No. 87-1071,87-1071
• Citation: 846 F.2d 274
• Parties: 25 Fed. R. Evid. Serv. 911 UNITED STATES of America, Plaintiff-Appellee, v. Kevin P. JUDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 274

846 F.2d 274

25 Fed. R. Evid. Serv. 911

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

No. 87-1071.

United States Court of Appeals, Fifth Circuit.

May 20, 1988.

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

Frederick M. Schattman, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Ft. 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 appeals from his conviction for distributing, traveling in interstate commerce to distribute, and conspiring to distribute a controlled substance. Finding that the Government failed to introduce evidence that the arresting officers followed standardized police procedures in conducting an inventory search of the appellant's automobile, we remand this case to the district court.

I.

The charges brought against the appellant derive from two cocaine transactions. The first transaction began with a series of telephone calls between agents of the Drug Enforcement Administration (DEA) and Joe Frazer. Frazer arranged to travel to Fort Worth, Texas from New York to sell a sample of cocaine to one of the undercover agents. On June 16, 1986, Frazer delivered one ounce of pure cocaine to the agent. During the transaction Frazer made reference to the appellant as his "boss" in New York. The jury acquitted the appellant of the two charges relating to this transaction.

Sometime later, the same undercover agents negotiated with Frazer and the appellant about purchasing a larger quantity of cocaine. One of the agents spoke directly to the appellant in New York on two occasions. On June 23, the appellant met two of the agents in a restaurant in the Fort Worth area. The agents showed the appellant a roll of money which was represented as being $144,000. This sum was to be traded for the appellant's three kilograms of cocaine. The appellant contacted Frazer in New York, and subsequently told the agents that Frazer would drive the cocaine down to Texas from New York the following day. It was agreed at this meeting that Frazer would deliver the cocaine to one of the agents and that the appellant would be nearby to collect the money from the other agent.

On June 25, the same two agents met the appellant at the same restaurant. DEA agents observed the appellant drive to the restaurant and park his rented Lincoln Continental in the parking lot. The appellant made arrangements for one of the agents to meet Frazer at a local shopping mart to receive the cocaine while the other agent and the appellant remained at the restaurant.

When word was received that Frazer had been arrested with three kilograms of high grade cocaine, several agents then approached and arrested the appellant in the restaurant. While the appellant was handcuffed, one of the agents searched his clothing and removed his car keys from his hip pocket. Cash in the amount of $5,200 was found in the appellant's wallet.

The appellant's automobile was seized and inventoried in the restaurant's parking lot. The agents neither received consent nor obtained a search warrant for the seizure and inventory. Upon opening the trunk, the agents found a sealed bag which they opened. Among other things, the agents discovered $65,000 in currency in the bag.

After his indictment the appellant moved to suppress the $65,000. The district court denied the motion after hearing argument on the validity of the inventory. At trial, the money was admitted into evidence over objection that its seizure was violative of the appellant's fourth amendment protections.

Judge was convicted by a jury on three of five counts relating to the conspiracy, travel in interstate commerce, and distribution of cocaine in connection with the second transaction. The district court sentenced him to concurrent terms of twenty, twenty, and five years in prison, and fined him $10,000.

II.

We are asked to consider whether the appellant's fourth amendment rights were compromised during the inventory search based on the Supreme Court's decision in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). The Government maintains that the search and seizure of the appellant's automobile constituted an inventory search, and that searches of closed containers in locked trunks of seized automobiles are permissible. However, the Government presented no evidence that such procedures were required by DEA regulations or that the decision to search a sealed bag in a locked trunk was not discretionary on the part of the agents conducting the search.

In Bertine, the Court set the parameters in which inventory searches of automobiles are justified under the Constitution. The inventory of a closed backpack which disclosed controlled substances, drug paraphernalia, and cash was held to be permissible in that case because the seized van was inventoried in accordance with local police procedures. Those procedures required a detailed inspection and inventory of all impounded vehicles. Id. at ----, 107 S.Ct. at 740. The Bertine Court emphasized that the trial court found that there were applicable police procedures which mandated the opening of closed containers in automobiles subject to inventory. Id. at ---- n. 6, 107 S.Ct. at 742 n. 6. The inventory search was held to be reasonable because it was conducted according to standardized criteria. It is clear, however, that an inventory search is unreasonable if it is conducted "in bad faith or for the sole purpose of investigation." Id. at ----, 107 S.Ct....