U.S. v. Kordosky

• Decision Date: 28 June 1989
• Docket Number: No. 88-3333,88-3333
• Citation: 878 F.2d 991
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Susan J. KORDOSKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 991

878 F.2d 991

The UNITED STATES of America, Plaintiff-Appellee, v. Susan J. KORDOSKY, Defendant-Appellant.

No. 88-3333.

United States Court of Appeals Seventh Circuit.

Argued April 17, 1989.

Decided June 28, 1989.

John W. Vaudreuil, Asst. U.S. Atty., Madison, Wis. for U.S.

Alan G. Habermehl, Kalal & Habermehl, Madison, Wis. for Susan J. Kordosky.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WILL, Senior District Judge. ^*

BAUER, Chief Judge.

On May 11, 1988, a grand jury returned a one-count indictment charging Susan Kordosky with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Before trial, Kordosky filed two motions to suppress evidence. The magistrate, in his Report and Recommendations, urged denial of the motions and the district court adopted the Report and Recommendations. Thereafter, Kordosky entered a conditional plea of guilty, pursuant to Federal Rule of Criminal Procedure 11(a)(2), reserving the right to appeal the district court's denial of her motions to suppress. The district court accepted Kordosky's plea and sentenced her to two years imprisonment and five years of supervised release. This is Kordosky's appeal from the district court's orders denying her motions to suppress.

A.

During his investigation of Kordosky for drug-related activities, Detective Richard Pharo of the Madison Police Department discovered that Kordosky's driving privileges were suspended and would remain suspended until May 10, 1988. Although Pharo received this information on April 19, 1988, and observed Kordosky driving on several occasions between April 19th and May 10th, he took no action to have her arrested. On May 10th, someone informed Pharo that Kordosky was planning to leave the Madison area. Pharo then went to Kordosky's house and maintained surveillance there until he saw her get into her car and drive away, accompanied by another woman. Acting upon Pharo's instructions, a police officer in a marked car stopped Kordosky.

Pharo then arrested Kordosky. According to Madison Police Department policy, a person operating a motor vehicle with a suspended license is subject to a full custodial arrest. Furthermore, the arrestee may not post bail at the site of the offense, but must accompany the arresting officer to the police station for booking. After arresting Kordosky, Pharo asked her and the other woman (who was later identified as Kordosky's sister, Layli) to get out of the car. After exhibiting great reluctance, Kordosky finally exited. Pharo noticed a bag containing small cotton balls and a bottle of Bacardi 151 rum, materials used to free-base cocaine, in the back seat of Kordosky's car. Detective Rickey, who arrived after Kordosky had been arrested, then searched the car. In a pocket attached to the dashboard, Rickey found a free-base pipe, a test tube, (both of which contained cocaine residue), straws and cotton balls. Pharo then placed Kordosky under arrest for possession of cocaine. Rickey searched Kordosky's purse and found 1/16 ounce of cocaine. Pharo then advised Kordosky that she was also being charged with possession with intent to distribute cocaine. Pharo directed Rickey to seize the car for future civil forfeiture. Kordosky was then taken to the police station.

Rickey drove Kordosky's car to the station and conducted an inventory search of the vehicle. In a locked compartment in the trunk of her car, Rickey found $2,970 and 107 grams of cocaine.

B.

In her first motion to suppress evidence, Kordosky claimed that the search of her car incident to the arrest violated the Fourth Amendment because her arrest was pretextual. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). On appeal, Kordosky does not challenge the following principles: that the arrest of a person upon probable cause justifies the search of the person, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); and that when the arrestee is in a vehicle, the arrest justifies the search of the passenger compartment of the vehicle, including closed containers. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Nor does she challenge that Pharo's knowledge that she was driving on a suspended license gave him probable cause to arrest her. Rather, Kordosky claims that Pharo's motive in arresting her was improper--that he arrested her in order to search her car, not because he had probable cause to arrest her for driving on a suspended license. Because Pharo's motive in arresting her was improper, Kordosky claims, the search incident to her arrest was illegal.

The problem with this argument is that the test in this circuit to determine whether an arrest was pretextual is an objective one. United States v. McCarty, 862 F.2d 143, 148 (7th Cir.1988). See also United States v. Hawkins, 811 F.2d 210 (3rd Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Nersesian, 824 F.2d 1294 (2nd Cir.1987); cert. denied, --- U.S. ----, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (en banc) (rejecting previous Fifth Circuit "reasonable officer" test, which asks whether a reasonable officer would have made the arrest without an improper motive to search, in favor of the purely objective test). But see United States v. Smith, 802 F.2d 1119 (9th Cir.1986) (subjective motive of arresting officers determines whether search was legal). Under the objective test, the search incident to the arrest is legal so long as the arresting officer possesses sufficient information to give him probable cause to arrest. The arresting officer's motive may be relevant only in establishing the facts that the officer knew at the time of the arrest. McCarty, 862 F.2d at 148 n. 3. In the present case, Pharo knew that Kordosky was driving on a suspended license and therefore had probable cause to arrest her. Because Pharo had probable cause to arrest, the district court properly denied Kordosky's motion to suppress evidence found in the search of her car incident to her arrest.

In her second motion to suppress evidence, Kordosky claims that the inventory search of her car was unlawful. Inventory searches of vehicles lawfully in the possession of police officers, in accordance with standard police procedures, are themselves lawful. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Kordosky claims that the government did not establish that the inventory search of her car was conducted in accordance with standard police procedures. During a hearing before the magistrate on this issue, Detective Rickey first testified about his extensive experience with the Madison Police Department and then testified that the standard practice regarding the seizure of automobiles was to maintain control of the car, to inventory the vehicle, and to make a list of its contents. Kordosky claims that this testimony establishes, at most, the standard practice of Detective Rickey. The magistrate found, however, that the inventory search was conducted in accordance with standard Madison Police Department procedures and the district court adopted this finding. Because this finding is not clearly erroneous, the district court's order denying Kordosky's motion to suppress evidence found in the inventory search is therefore

AFFIRMED.

WILL, Senior District Judge, concurring.

The court's opinion is predicated on the basis that this circuit follows the "objective" test in determining whether or not a search incident to an arrest is legal. That test, as the opinion defines it, makes the search legal "as long as the arresting officer possesses sufficient information to give him probable cause to arrest." His motive and ultimate objectives are relevant, if at all, only if he did not have probable cause to arrest.

In United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932), the Supreme Court held that an "arrest may not be used as a pretext to search for evidence." In Lefkowitz, lawful arrests at the defendants' residence pursuant to valid arrest warrants were followed by a general search of the residence during which inculpatory evidence was found. Even though the arrests were clearly valid, they were held to be a pretext and not to warrant the general search of the premises.

Following Lefkowitz, a number of Circuit Courts of Appeal have held that searches pursuant to "pretextual" arrests are invalid. The test to be used in determining whether a stop was pretextual is whether a reasonable officer would have made the arrest and search "in the absence of illegitimate motivation." United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986). The Eighth and Ninth Circuits, citing Lefkowitz and other cases, have held that if the motivation or primary purpose of the police is to search for evidence of a crime unrelated to the one for which the ostensible arrest is made...