U.S. v. Petty, 03-3388.

Decision Date18 May 2004
Docket NumberNo. 03-3388.,03-3388.
Citation367 F.3d 1009
PartiesUNITED STATES of America, Appellee, v. Jerry L. PETTY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Stephen Carl Moss, argued, Assistant Federal Public Defender, of Kansas City, Missouri (Raymond C. Conrad on the brief), for appellant.

Michael J. Hunt, argued, Special Assistant U.S. Attorney, of Kansas City, Missouri (Todd P. Graves on the brief), for appellee.

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Jerry Petty was charged with unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Petty moved to suppress two handguns found during an inventory search of a rental car on the ground that the car was impounded in violation of the Fourth Amendment. After the district court1 denied Petty's motion, Petty entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. We affirm.

I.

In the early morning hours of August 19, 2002, Officer James Helton of the Kansas City, Missouri, police department saw Petty drop a bag in an area known for narcotics activity and prostitution. An officer retrieved the bag, and it contained crack cocaine. Petty was arrested. While searching Petty incident to his arrest, officers found over $2,000 in cash and an Enterprise Leasing car key.

While detaining Petty, officers observed a female walking toward an adjacent parking lot. The officers questioned the female, who stated that she had come to the area with Petty in a white car. The officers located a white car in the parking lot. The lot belonged to a business that was closed, but the district court found that the car was not parked illegally. Enterprise Leasing owned the car, and the unidentified female claimed no interest in it. After taking Petty into custody, the officers decided to impound the car. Before towing the vehicle, it was police department procedure to create an inventory of its contents. During the inventory search, the police found two stolen .38 caliber revolvers which were loaded.

Petty moved to suppress the guns. The government did not rely on probable cause to search the vehicle, cf. United States v. Brown, 49 F.3d 1346, 1350 (8th Cir.1995), but argued instead that the search was a permissible inventory conducted after a lawful impoundment. At the suppression hearing, Officer Helton testified that when a suspect with a car at the scene is taken into custody, it was department policy either to "tow the vehicle, release it to another subject, or leave it there." He further testified that the decision to impound the car was made, at least in part, because it was owned by Enterprise Leasing, not by Petty. Officer Helton explained that "what we do is we tow it to our tow lot, and then Enterprise will come back and recover the vehicle."

The officer testified that he ruled out the option of releasing the car to another subject, because the female companion had no interest in the vehicle. He stated that after consulting with a police sergeant, he declined to leave the car in the parking lot, reasoning that the car "was on a private lot," that "you can't leave a car abandoned, ... because we're responsible for it," and that the car "did not belong there." He explained that police earlier had caused the only other non-business vehicle in the parking lot to exit by directing the sleeping driver to "move on." On cross-examination, Officer Helton acknowledged that part of his motivation in towing the car was to find out whether there were more drugs or cash inside, saying "that's part of our investigation."

The district court, adopting the report and recommendation of a magistrate judge, denied Petty's motion to suppress the firearms. Petty pled guilty to the firearms charge, and he was sentenced to a term of 20 months imprisonment.

II.

When considering the denial of a motion to suppress evidence, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Vanhorn, 296 F.3d 713, 717 (8th Cir.2002), cert. denied, 537 U.S. 1167, 123 S.Ct. 981, 154 L.Ed.2d 907 (2003). Petty argues that the impoundment of the rental car by police was unconstitutional. As a result, he contends, the firearms discovered pursuant to the subsequent inventory search were the fruit of an unlawful seizure, and must be suppressed.

Impoundment of a vehicle for the safety of the property and the public is a valid "community caretaking" function of the police. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). "Police may take protective custody of a vehicle when they have arrested its occupants, even if it is lawfully parked and poses no public safety hazard." United States v. Martin, 982 F.2d 1236, 1240 (8th Cir.1993) (citations omitted). Despite these well-established principles, Petty argues that the seizure was invalid because the government failed to present evidence of a standardized impoundment policy to guide the exercise of police discretion.

Petty's argument is based on Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), wherein the Supreme Court held that police may exercise discretion to impound a vehicle, "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." Some degree of "standardized criteria" or "established routine" must regulate these police actions, which may be conducted without the safeguards of a warrant or probable cause, to ensure that impoundments and inventory searches are not...

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