U.S. v. Marshall

• Decision Date: 11 March 1993
• Docket Number: No. 92-2084,92-2084
• Citation: 986 F.2d 1171
• Parties: UNITED STATES of America, Appellee, v. Zachary MARSHALL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1171

986 F.2d 1171

UNITED STATES of America, Appellee, v. Zachary MARSHALL, Appellant.

No. 92-2084.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 10, 1992.

Decided Feb. 9, 1993.

Rehearing Denied March 11, 1993.

Stephen H. Gilmore, Clayton, MO, argued, for appellant.

James K. Steitz, Asst. U.S. Atty., St. Louis, MO, argued (Dean R. Hoag, Asst. U.S. Atty., on the brief), for appellee.

Before WOLLMAN, Circuit Judge, BRIGHT and HENLEY, Senior Circuit Judges.

WOLLMAN, Circuit Judge.

Zachary E. Marshall appeals from his conviction for being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Marshall challenges the district court's denial of his motion to suppress evidence and the sufficiency of the government's evidence. Finding that the district court erroneously admitted the gun discovered in a search of the mini-van Marshall had been driving, we reverse the conviction.

I.

On March 28, 1991, St. Louis Police Officers David Doetzel and Kenneth Lammert noticed that an unoccupied mini-van was parked with its motor running in the 1700 block of Cole Street. At trial, Officer Lammert testified that he and his partner had known that the van belonged to or, at least, was often driven by Marshall, and that Marshall was a subject of an ongoing investigation concerning guns and narcotics. When the officers checked the van, they found that the doors were locked and the keys were in the ignition. They watched the vehicle for a short time until their shift ended, but no one entered the van.

When Officer Michael Wuellner came on duty that afternoon, he received information concerning the unoccupied mini-van. When he ran a check on the mini-van's license plate number, Officer Wuellner discovered that the vehicle had ten unpaid parking tickets and was registered to a Denice Allen. By the time he received the information, the vehicle had begun to move. Officer Wuellner subsequently pulled the vehicle over in the 1400 block of Cole Street.

The sole individual in the van identified himself as Zachary Marshall. Officer Wuellner ran a check on that name and determined that Marshall was wanted for a probation violation. Officer Wuellner then arrested Marshall and placed him in the back of his squad car. Because the mini-van had ten unpaid parking tickets, Officer Wuellner radioed for a tow truck to remove the vehicle to one of the city's impound lots, in accordance with police department policy.

What transpired next was the subject of considerable dispute at trial. It is undisputed that at some point during the arrest, Officers Lammert and Doetzel, now off-duty, saw Officer Wuellner's squad car behind the mini-van and stopped to offer assistance. At trial, these two officers and Officer Wuellner testified that they had merely closed the mini-van's door and had waited for a backup police officer and the tow truck to arrive. Officer Wuellner testified that as soon as the backup had arrived, he had driven Marshall to the local police station. All three stated that they had never conducted any search of the vehicle at the scene.

By contrast, Marshall and his cousin, who had stopped at the scene after recognizing the van, testified at trial that the officers had thoroughly searched the van at the scene. Moreover, they testified specifically that the officers had explored under the van's front seats in the course of their search, but had found nothing. ¹

After Officer Doetzel left the scene, he telephoned Detective Lou Berry in the Intelligence Division of the St. Louis Police Department. When asked why he had called Berry, Doetzel testified that Berry was the individual who had informed Doetzel and his partner that Marshall was under investigation and that the mini-van was supposedly being used in illegal activities.

While the mini-van was being towed to a city impound lot, Detective Berry telephoned Sergeant Robert Dwyer, who was working temporarily with a federal drug task force at that time. According to Dwyer's testimony, Berry told him that Marshall had been arrested and that the mini-van he had been driving was being towed to an impound lot. Dwyer testified that Berry then asked him to conduct an inventory search of the vehicle because Berry was not available to do so.

Officer Dwyer and his partner, Michael Dueker, located the vehicle at the impound lot and began their search. Dueker initiated his search "in the driver's side area," but was able to find nothing, even after lifting the flap of material that hung down from the bottom of the seat. Approximately ten minutes later, however, Dwyer found a nine millimeter Smith & Wesson handgun lodged in the framework underneath the driver's seat. The officers also recovered a cellular phone, a Rolex watch, a box of ammunition, a small black bag, and several other personal items.

Officer Dwyer called for an evidence technician, who removed the gun and processed it for fingerprints. The technician lifted one fingerprint from the ammunition magazine, or clip, and a second partial print from the gun's slide mechanism. The technician forwarded the prints to an examiner in the department's Identification Section. After comparing the lifted prints to known prints in the department's files, the examiner determined that the print from the clip matched the file print for Zachary Marshall. He concluded that the partial print from the slide mechanism, however, did not contain enough points of comparison to allow him to make an identification.

A grand jury subsequently indicted Marshall for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Marshall filed a motion to suppress the gun as the fruit of an illegal search. Because the case was tried to the bench without a jury, the district court took the motion with the case as a whole and ruled on the admissibility of the gun when it was offered at trial. The court admitted the gun and convicted Marshall.

II.

Marshall raises two claims of error on appeal. First, he argues that the district court erred in admitting the gun on the ground that it was properly discovered in the course of a police inventory of the mini-van. Second, he claims that the government did not establish that the gun operated as designed, thereby failing to prove an essential element of the offense, namely, that the handgun was a firearm within the meaning of the statute.

The district court's admission of the gun during the trial of this case constituted the equivalent of a denial of a motion to suppress. In reviewing the grant or denial of a motion to suppress evidence on Fourth Amendment grounds, we are bound by the district court's findings of fact regarding the circumstances of the search unless we believe on the basis of the record as a whole that the district court clearly erred. See United States v. McBride, 801 F.2d 1045, 1046 (8th Cir.1986), cert. denied, 479 U.S. 1100, 107 S.Ct. 1325, 94 L.Ed.2d 177 (1987); see also United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989). We may reverse the district court's ultimate ruling on the suppression motion, however, if the ruling reflects an erroneous view of the applicable law. Id. Applying this standard to the present case, we hold that the district court erred in admitting the gun as the product of a lawful inventory search because the government failed to establish that the search was conducted according to standardized procedures.

The "cardinal principle" in Fourth Amendment search and seizure jurisprudence is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted)). When the government seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception. Id. 437 U.S. at 391, 98 S.Ct. at 2412 (citing Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970)).

In South Dakota v. Opperman, the Supreme Court defined what has become known as the "inventory exception" when it held that the police may lawfully conduct a warrantless search of an impounded automobile that is designed to produce an inventory of the vehicle's contents. 428 U.S 364, 376, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976). Because the police are performing an administrative or caretaking function rather than a criminal investigatory function when they impound an automobile, the Court found that the policies underlying the Fourth Amendment's warrant requirement are inapplicable. Id. at 369 n. 5, 96 S.Ct. at 3097 n. 5. Thus, in the Court's view the central inquiry is whether the inventory search is reasonable under all the facts and circumstances of the particular case. Id. at 373, 96 S.Ct. at 3099 (citing Coolidge v. New Hampshire, 403 U.S. 443, 509-510, 91 S.Ct. 2022, 2059-2060, 29 L.Ed.2d 564 (1971) (Black, J., concurring and dissenting)); see also United States v. Spencer, 884 F.2d 360, 361 (8th Cir.1989). Using this analysis, the Supreme Court has concluded that inventory searches conducted according to standardized police procedures, which vitiate concerns of an investigatory motive or excessive discretion, are reasonable. Opperman, 428 U.S. at 372, 96 S.Ct. at 3098; see also Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987); cf. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (affirming Florida Supreme Court's exclusion of marijuana found in suitcase in car trunk where the Florida Highway Patrol "had no policy whatever with respect to the opening of...