U.S. v. Lopez

• Citation: 547 F.3d 364
• Decision Date: 10 November 2008
• Docket Number: Docket No. 06-3730-cr.
• Parties: UNITED STATES of America, Appellee, v. Ricardo LOPEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

547 F.3d 364

UNITED STATES of America, Appellee, v. Ricardo LOPEZ, Defendant-Appellant.

Docket No. 06-3730-cr.

United States Court of Appeals, Second Circuit.

Argued: January 15, 2008.

Decided: November 10, 2008.

Brendan R. McGuire, Assistant United States Attorney, Southern District of New York (Diane Gujarati, Assistant United States Attorney, of counsel; Michael J. Garcia, United States Attorney, on the brief), New York, NY, for Appellee.

Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Ricardo Lopez appeals from the judgment of the United States District Court for the Southern District of New York (Sidney Stein J.) convicting him at a bench trial of possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1) and (b)(1)(C), and possession of two firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The court sentenced Lopez to ten months of imprisonment on the cocaine count, plus a mandatory consecutive term of sixty months on the firearm count, as well as three years of supervised release and a $200 special assessment. Defendant contends that the district court made two errors: first, in finding that the warrantless search of Lopez's car was justifiable as an inventory search, notwithstanding that the procedure for the search was not governed in all aspects by a standardized police department policy and the officer conducting the search did not make a complete list of the car's contents; and second, in admitting expert testimony by a narcotics detective that cocaine and cutting materials found in Lopez's car suggested distribution.

We affirm.

Background

I. The Evidence at Trial

The evidence presented at Lopez's trial, seen in the light most favorable to the government, see United States v. Rommy, 506 F.3d 108, 128 (2d Cir.2007), showed the following.

a. Lopez's Arrest

On August 3, 2005, at approximately 3:30 a.m., Police Officer Lorrie Arroyo and Sergeant Stacy Barrett of the New York City Police Department ("NYPD") were patrolling in a police vehicle in the Hunts Point neighborhood of the Bronx, watching out for prostitution and auto theft. They observed a car parked on the right side of Faile Street. Two people were in the car, with the passenger door open and the engine running. The officers slowed as they passed the car and overheard the occupants arguing. They parked their car and got out to investigate. Arroyo approached the driver's side of the car; Barrett the passenger's side. The driver, the defendant Lopez, told them he had been arguing with his girlfriend. The passenger identified herself as Griselle Lopez. (Ricardo Lopez and Griselle are neither married to each other nor otherwise related.) Griselle told the police she was just hanging out with her boyfriend. Arroyo smelled alcohol and noticed that the defendant's eyes were bloodshot and his speech was slurred. She asked him if he had been drinking, and he responded, "Yes, one cup." Arroyo decided to arrest him for driving while intoxicated. She asked him to step out of the car and frisked him. She found a bulge in his rear right pants pocket, which seemed heavier than a wallet. Arroyo asked him what was in his pocket. He replied that it was a gun. Officer Arroyo then reached into the defendant's pocket, recovered a handgun and a wallet, and alerted Barrett that the defendant had a gun.

Meanwhile, Sgt. Barrett had asked Griselle to get out of the car. The sergeant asked for her identification. She replied that it was in the car. Two other officers who had arrived on the scene stood with Griselle while Barrett went to get Griselle's bag from the car. Sgt. Barrett located a bag near the front passenger seat and asked Griselle if it was hers, and if so, whether the sergeant could look in it for a driver's license or some other form of identification. Griselle confirmed that it was her bag and gave the sergeant permission to search it for identification. Barrett observed a wallet in the bag. On removing it, she saw a clear glass container of white powdery substance, which she believed to be cocaine. Barrett then arrested Griselle.

The defendant and Ms. Lopez were taken to the 41st Precinct station house in separate police cars. Officer Fischer, one of the other officers who had arrived on the scene, took over the defendant's car and drove it to the station.

b. The Searches of Lopez's Car

At the 41st Precinct, Officer Arroyo and Sgt. Barrett conducted an inventory search of the defendant's car. According to Arroyo's testimony, inventory searches are standard in the NYPD when a car is seized upon the arrest of an intoxicated driver, both to protect the property of the owner and to protect the police. "[Y]ou have to do a total inventory search of the vehicle," she testified. "Everything has to come out." In searching the car, Arroyo found two glassines of cocaine in the middle console between the two front seats, as well as a bottle of liquor in the driver's side door. From the trunk, the officers removed plastic bags, canvas bags, a beach chair and umbrella, and some audio speakers. Arroyo then found a small green toiletry bag "tucked away" on the driver's side of the trunk. In it she discovered thirteen glassines of cocaine, as well as cocaine-related paraphernalia: a scale, a strainer with cocaine residue, a wooden masher with cocaine residue, two spoons with cocaine residue, more than one hundred empty glassines, and a jar of a white powdery substance that looked like cocaine. The officers then locked the gun, the bottle of liquor, the two glassines from the front middle console, and the green bag with its contents in a desk in their office. They drove the defendant to the 45th Precinct—which was, according to Officer Arroyo, an area hub for alcohol screening—where he was given a breathalyzer test and found to be legally impaired. At approximately 8:00 a.m., he was brought back to the 41st Precinct and returned to his cell. Shortly thereafter, Sgt. Barrett's shift ended and she went home.

Upon returning to the 41st Precinct, Arroyo noticed that Griselle was wearing jewelry. Arroyo asked her if someone could pick up the jewelry for her. Griselle arranged to have her daughter come to the station to get it. The daughter agreed also to take the defendant's belongings. Arroyo asked another officer, Officer Rivera, to make a list of the jewelry and have the daughter sign for it when the jewelry was handed over to her. Arroyo then went back to Lopez's car and began to place the contents into large plastic bags to give to Griselle's daughter. In the process of emptying the car, Arroyo looked in the glove compartment, where she found a loaded .38 caliber gun. Barrett testified that she had opened the glove compartment during the first search of the car, but became distracted when Arroyo asked her for a flashlight and failed to search it. Arroyo returned to the 41st Precinct to voucher the newly discovered gun and then turned over the noncontraband property to Griselle's daughter.

The list created by the officers identified items such as Griselle's pocketbook and jewelry. The beach chair, the umbrella, the audio speakers, etc.—items which Arroyo considered to be of no substantial value—were covered by a general catch-all description: "the belongings from the vehicle." Officer Arroyo explained that it was her practice to itemize objects in an inventory list only when they are "worth something." "If I handed off something smaller, say like car items, antifreeze, I wouldn't make a list, because it is worth nothing." Sgt. Barrett testified that it was her practice to make a complete list of returned property to be signed by the recipient. Sgt. Barrett testified that a written inventory of seized items-including "noncontraband evidence"—is supposed to be made as part of an inventory search. However, Sgt. Barrett also testified that the absence of a list of "noncontraband property" was not a violation of police regulations.

c. Lopez's Post-Arrest Statements

On the day of the arrest at approximately 5 p.m., after receiving Miranda warnings, the defendant made a statement and recounted orally that he bought one of the guns from a "crackhead"; that he found the other one near a nightclub in Manhattan; and that he had the gun that was found on him because "he was selling drugs and he had a beef with some individuals." He agreed to provide a written statement, in which he provided similar information about the guns and stated that he carried the gun found in his pocket for "self-protection." He also acknowledged in writing that the drugs found in the trunk of the car belonged to him. He said that he did not want to include in the written statement his earlier oral representation that he had a gun "because he was selling drugs and had a beef with some individuals."

d. Expert Evidence

The government called two expert witnesses. Eloisa Dela Isla, a criminalist in the NYPD police lab who tested the drug-related evidence seized from the car, testified that the glassines and the drug paraphernalia all tested positive for the presence of cocaine. Billy Ralat, an investigator at the United States Attorney's Office, testified about the practices of drug users and dealers, and about how drug-related paraphernalia found in Lopez's trunk are used to prepare and package glassines of cocaine for sale.

II. District Court Proceedings

Prior to trial, Lopez waived his right to a jury trial and moved to suppress the drugs, drug paraphernalia, and gun recovered from the car, as well as his post-arrest statements. The motion to suppress the evidence found in the search of the automobile was on the ground that the warrantless search could not be justified as an inventory search because the officers did not prepare an inventory list of...