U.S. v. Proctor

• Decision Date: 19 June 2007
• Docket Number: No. 05-3132.,05-3132.
• Citation: 489 F.3d 1348
• Parties: UNITED STATES of America, Appellee v. Douglas Myron PROCTOR, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

489 F.3d 1348

UNITED STATES of America, Appellee v. Douglas Myron PROCTOR, Appellant.

No. 05-3132.

United States Court of Appeals, District of Columbia Circuit.

Argued March 27, 2007.

Decided June 19, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cr00427-01).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief.

Ryan W. Scott, Attorney, United States Department of Justice, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Assistant United States Attorney, were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

A jury found appellant Douglas Myron Proctor guilty of unlawful possession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 120 months' imprisonment and five years' supervised release. Proctor now appeals the district court's denial of his motion to suppress evidence obtained during an inventory search of his vehicle following his arrest for moving violations on the ground that the arresting officers failed to follow standard police procedures when they impounded his car and subsequently retrieved a weapon from a trash bag found in the trunk. For the reasons set forth below, we conclude that the district court erred in denying the motion to suppress and reverse the district court's judgment.

I.

At approximately 1:35 a.m. on September 8, 2004, Metropolitan Police Department (MPD) Officer Jody Shegan, and his partner, Officer Martin Nassar, while parked near Spingarn High School at the corner of 26th Street and Benning Road, Northeast, in Washington, D.C., received a radio call informing them that a maroon 1989 Mercury Grand Marquis traveling westbound on Benning Road had failed to stop at a red light. After the vehicle turned onto 26th Street and passed by Officers Shegan and Nassar, they followed it for a short distance before noticing that it had tinted windows. The officers initiated a traffic stop "[a]lmost immediately." Tr. 11/23/04 at 7-8.

Proctor, the driver and sole occupant, produced his license and registration to Officer Nassar. At that time, Nassar noticed the odor of alcohol on Proctor's breath. As he returned to the squad car to check the license and registration information, Nassar signaled to Shegan that Proctor had been drinking. Shegan then approached Proctor and initiated a conversation with him, during which Shegan too smelled alcohol and noticed that Proctor's speech was slurred. When Shegan directed Proctor to step out of the vehicle, Proctor "swayed back and forth and used his vehicle as a leaning post so . . . he wouldn't fall down." Id. at 9. Because Proctor exhibited signs of intoxication, Shegan placed him under arrest for operating a vehicle while intoxicated (OWI) and driving under the influence (DUI).¹

After Proctor's arrest and while he remained at the scene, the officers conducted an inventory search of the vehicle. In the trunk, the officers recovered a .380 semi-automatic pistol from a "white trash bag," Tr. 4/18/05 at 56, that also contained clothes and Proctor's cell phone bill. From the front passenger seat, the officers recovered another plastic bag containing personal documents with Proctor's name. After waiving his Miranda rights, Proctor informed the police that the bag belonged to him but the gun did not. In an indictment filed September 23, 2004, Proctor was charged with unlawful possession of a firearm and ammunition by a felon. On October 20, 2004, he filed a motion to suppress, challenging, inter alia, the physical evidence recovered during the inventory search.

At the November 23, 2004 suppression hearing, Officer Shegan, the hearing's only witness, testified that the MPD standard procedure required the officers to impound Proctor's vehicle after his arrest. Shegan, who had been a police officer for twenty years and a member of the MPD for three years, declared that he did not "believe [he] had a choice" in impounding the vehicle, Tr. 11/23/04 at 38, because Proctor was not the owner and no one else was present to take custody of it, id. at 38, 24. Shegan further explained that the officers did not attempt to contact the owner to retrieve the vehicle because they "weren't going to wait that long" and that they did not consider parking the car nearby because the police were "still responsible for the vehicle if it [was] parked." Id. at 38. Pursuant to the MPD's "new procedure" (Shegan's term) for any vehicle not held as evidence or for civil forfeiture, id. at 25, Shegan testified that he requested the dispatch of a "ROC crane"—a crane operated by a private towing company which, by contract with the MPD, conducts towing operations for each Regional Operations Command—to remove the vehicle to a private impoundment lot instead of to the regional MPD station or the MPD impoundment lot, id. at 24-25.²

Shegan also testified that the MPD procedure required the officers to search "[t]he entire vehicle," id. at 26, before removal "[t]o reduce liability on the police department and to preserve any property that the owner of the vehicle or the occupants of the vehicle may have," id. at 25. He explained that

[t]he old policy was if a vehicle is taken to Metropolitan Police Department under the[] same circumstances [as here], the passenger compartment of the vehicle would be inventoried on the scene; and then within a certain amount of time after that, 24, 48 hours after that, then the entire vehicle, if the owner didn't come and pick it up, the entire vehicle would be inventoried. . . . That policy is no longer in existence.

Id. at 26-27. According to Shegan, the current search policy went into effect when "Metropolitan Police Department didn't have the room to store these vehicles." Id. at 27.

In response to Shegan's testimony, Proctor introduced into evidence a copy of MPD General Order 602.1 which sets forth MPD impoundment and inventory search procedure. General Order 602.1, Automobile Searches and Inventories (May 26, 1972) (GO 602.1), reprinted in Appendix for Appellant (AA) at 32. Part I.B.3, entitled "Prisoner's Property," provides, "When a person is arrested in an automobile which he owns or has been authorized to use and the vehicle cannot be classified [as evidence or for civil forfeiture], that vehicle shall be classified as prisoner's property." Id. at 42. Subpart (a) of Part I.B.3 provides that a vehicle "classified as prisoner's property shall be disposed of in any lawful manner in which the person arrested directs. In any case where a prisoner requests that his vehicle be lawfully parked on a public street, he shall be required to indicate his request in writing." Id. Subpart (b) provides:

If a vehicle classified as prisoner's property is disposed of so that it is not taken to a police facility, it shall not be inventoried in any way. If it is necessary to take such a vehicle into police custody, the vehicle shall be taken to a police facility or to a location in front of or near a police facility. Immediately upon arrival at the police facility the arresting officer shall remove from the passenger compartment of the vehicle any personal property which can easily be seen from outside the vehicle and which reasonably has a value in excess of $25. . . . No other inventory or search of the vehicle shall be made at this time.

Id. at 43 (emphases added). And subpart (c) states:

If a person authorized by the prisoner or the prisoner himself, upon his release, does not claim the vehicle within 24 hours of the time that the prisoner was arrested, a complete inventory of the contents of the automobile shall be made by the arresting officer or an officer designated by an official.

Id. Finally, Part I.B.6, entitled "Scope of Inventory," provides:

Whenever an officer has a right to inventory a vehicle pursuant to this order the officer shall examine the passenger compartment, the glove compartment, whether or not locked, and the trunk, whether or not locked. . . . Any container such as boxes or suitcases found within the vehicle shall be opened. . . .

Id. at 46-47.

While noting "a conflict or something of a disparity" between Shegan's testimony and GO 602.1 regarding the MPD's impoundment and inventory search procedure, Tr. 11/23/04 at 62, the district court denied Proctor's suppression motion. The court explained that "it is clear . . . through the testimony of [Officer Shegan] that th[e written] procedures have been changed and perhaps because of financial realities or whatever it appears that the city in the last several years has adopted different procedures." Id. at 63. The court found the "new procedure"—that is, an inventory search of a vehicle classified as "prisoner's property" whether or not the vehicle is removed to a police facility—"reasonable" and concluded,

I have listened to the testimony of the particular officer and decided, based on the way he has testified and to the content, he seems to be knowledgeable and he strikes me as being an honest police officer with no agenda with respect to this particular vehicle during the time span of the events, that I find nothing that would even remotely suggest a pretextual search in this case as a way of getting inside the trunk of that car.

Id. at 64.

A three-day jury trial was held in April 2005. On April 20, 2005, the jury found Proctor guilty and he was sentenced on August 8, 2005 to 120 months' imprisonment and five years' supervised release. This appeal followed.

II.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The touchstone of the Amendment is reasonableness."...