U.S. v. Kornegay

• Decision Date: 25 September 1989
• Docket Number: No. 88-1800,88-1800
• Citation: 885 F.2d 713
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger Glen KORNEGAY, a/k/a Richard Sanchez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 713

885 F.2d 713

59 USLW 2258

UNITED STATES of America, Plaintiff-Appellee, v. Roger Glen KORNEGAY, a/k/a Richard Sanchez, Defendant-Appellant.

No. 88-1800.

United States Court of Appeals Tenth Circuit.

Sept. 25, 1989.

Rehearing Denied Dec. 15, 1989.

Lynda Burris Linscott, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., with her on the Brief) Muskogee, Okl., for plaintiff-appellee.

Stephen J. Greubel, Asst. Federal Public Defender, David Booth, Federal Public Defender, Tulsa, Okl., for defendant-appellant.

Before McKAY and ANDERSON, Circuit Judges, and BRATTON, Senior District Judge. ^*

BRATTON, Senior District Judge.

Appellant Roger Glen Kornegay (Kornegay) was convicted in the court below of interstate transportation and sale of a stolen farm tractor, in violation of 18 U.S.C., Secs. 2312, 2313. On appeal he urges as grounds for reversal, first, that the court below erred in failing to grant his motion to suppress evidence he claimed was seized during an illegal search, and, second, that the court below erred in denying his motion for a mistrial, which he based upon intentional misconduct by the prosecutor.

Evidence adduced at the hearing below on the motion to suppress established that the indictment and conviction in the instant case actually grew out of an investigation conducted in another matter. One Gary Milton (Milton), an employee of an auction company in Howe, Texas, called the FBI and told Agent James Blanton that an individual named Richard Sanchez had consigned two tractors to the auction company and had requested that the proceeds of their sale be mailed to him in care of Triple S Farms at a post office box in Lone Star, Texas. The tractors had been sold, but the auction company employee had become suspicious about the tractors and was concerned about sending to a post office box a check for the substantial amount of money realized from the sale.

Agent Blanton got in touch with the John Deere Company and discovered that the tractors had been stolen. He was unable to locate or identify the person who called himself Richard Sanchez and who had consigned the tractors to the auction company. In the small town of Lone Star, Texas, the agent could find no one who knew of a Richard Sanchez or Triple S Farms. He told Milton not to mail the check and, if Sanchez called, to tell him he must pick up the check in person.

A man identifying himself as Richard Sanchez subsequently called the auction company about the proceeds of the sale, and Milton, pursuant to Agent Blanton's directive, told him he would have to come in person and get his check from the auction company.

The next day Kornegay came to the auction company, parked his auto in the parking lot of the company, entered the building, and identified himself as Richard Sanchez. He was given the check by Milton, whereupon the FBI agents, who had been observing the transaction, placed him under arrest.

Kornegay told the agents that he was Richard Sanchez and showed them a driver's license issued to a person of that name. The agents advised him that it was not his picture on the license. When the agents escorted him from the building, he identified his auto for them, and the agents noticed that a Missouri plate had been temporarily fastened over a Louisiana plate on the vehicle. They asked permission to inventory his automobile, since they were going to take him to jail, and they wanted to secure any valuables before the vehicle was towed to the impoundment lot.

Even though permission was refused, an inventory of the vehicle was begun by a Texas state auto theft specialist who had accompanied the agents to the auction company. He conducted the inventory using a standard inventory form. A blue bank bag lying on the front seat was picked up and opened. It contained ten thousand dollars in cash, jewelry, and several wallets and sets of identification. After these items were removed, the vehicle was towed to the impound lot by a wrecker.

The agents conducted a search of the impounded vehicle later that day after they had obtained a search warrant from a United States Magistrate. The search of the vehicle produced documents that showed the transportation of tractors across various states, gas receipts, and a legal pad with notations showing where various pieces of equipment had been disposed of, including a notation regarding the sale in Idabel, Oklahoma, of the tractor, stolen in Mississippi, that is involved in the instant case.

Further investigation in the case revealed that the man calling himself Richard Sanchez was in fact Kornegay.

The claim is made here, as it was in the court below, that the warrantless inventory search of his automobile, done without his consent, was unreasonable since his car was parked in the auction company's parking lot, it was not blocking traffic, and its removal had not been requested. In essence, his argument is that, under these circumstances, there was no need to move or to inventory the auto, and his refusal to consent to an inventory relieved the agents of any potential liability for failure to protect his property. His further argument is that, even if the inventory was proper, the bank bag should have remained unopened and have been inventoried as a unit.

The first question to be decided is whether the agents' decision to impound the vehicle was proper. The arrest of Kornegay took place inside the building, i.e., he was not arrested while in or near his automobile. Further, the auto was parked in the company's parking lot and was not in any manner illegally parked. Nor had the auction company requested its removal.

It is argued that, under such circumstances, United States v. Pappas, 735 F.2d 1232 (10th Cir.1984), is controlling. In Pappas, the defendant's car was legally parked in the parking lot of a local bar at the time of his arrest and removal from the scene. The defendant had had with him a lady friend who could have driven the car to the police station. He had other friends present who could have been asked to take the car into custody. He was a well known person in the community. His family lived close by and could have been called to take care of the car. The bar owner could have been asked if defendant's car could be left in the bar's parking lot until he returned. The trial court found that these alternatives to impoundment sufficiently protected the officers from any potential claims against them and suppressed evidence found in an inventory search of defendant's auto, and the court's decision was affirmed on appeal.

The facts in the present case differ appreciably from those in Pappas. First, the agents here arrested a person whose real identity they did not know. Second, they did not know where he lived. Indeed, they had been unable to identify him as coming from Lone Star, the place of residence he had listed with the auction company. Third, he was alone, and there was no friend, relative or companion who could be asked to care for the car. Fourth, they did not know where the vehicle was from. Fifth, the vehicle was not parked on his property, and the agents had every reason to believe that he would not be returning anytime soon to the auction company's lot to care for it himself. Sixth, to have left the vehicle in the auction company's parking lot--a lot open to the public--could have subjected it to vandalism or theft. The fact that the vehicle was legally parked in a parking lot does not, in and of itself, require the finding that impoundment was unnecessary, see United States v. Staller, 616 F.2d 1284 (5th Cir.1980), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980); United States v. Gravitt, 484 F.2d 375 (5th Cir.1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974), and the court in Pappas recognized this. In Staller, the automobile was legally parked but there was no one available to take custody of it; the defendant was unable to care for it by virtue of his arrest; and there was the potential for theft or vandalism present. Indeed, the court in Pappas distinguished Staller on that basis. 735 F.2d at 1234.

There is no evidence that suggests that the agents' decision to impound the car was other than proper and reasonable under the facts of this case.

This leaves the question of whether the inventory search was necessary and, if necessary, was extended too far by the opening of the bank bag.

The Supreme Court has addressed these issues and has established principles and guidelines to apply to inventory searches.

The Court has held that inventory searches are a well-defined exception to the warrant requirement of the Fourth Amendment, and, inasmuch as inventory searches are routine noncriminal procedures, they are to be judged by the standard of reasonableness under the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 3098-99, 49 L.Ed.2d 1000 (1976). In Opperman, the Court set out the principles governing inventory searches. In that case, the contents of an automobile that had been towed to the city impound lot for overtime parking were inventoried by a police officer, including the unlocked glove compartment, where he found a bag of marihuana. The owner was subsequently arrested on charges of possession of marihuana, his motion to suppress the evidence garnered in the inventory was denied, and he was convicted. The state supreme court reversed, concluding that the evidence had been obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. The Court reversed the state court's decision, holding that the routine practice by police of securing and inventorying the contents of an automobile did not involve an unreasonable search under the Fourth Amendment. The Court found such standard procedures to serve the strong governmental interests in protecting the property while it was in police custody; in protecting the police from claims about lost or stolen property;...