U.S. v. Trullo

• Decision Date: 14 May 1986
• Docket Number: No. 85-1708,85-1708
• Citation: 790 F.2d 205
• Parties: UNITED STATES of America, Appellant, v. John F. TRULLO, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 205

790 F.2d 205

UNITED STATES of America, Appellant, v. John F. TRULLO, Defendant, Appellee.

No. 85-1708.

United States Court of Appeals First Circuit.

Argued April 11, 1986.

Decided May 14, 1986.

Ralph C. Martin, II, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellant.

Owen S. Walker, Federal Defender Office, Boston, Mass., for defendant, appellee.

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

In this prosecution for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), the government appeals, pursuant to 18 U.S.C. Sec. 3731, from the pretrial grant of defendant's motion to suppress certain packets of cocaine found in a tin which deceptively appeared to be a can of Pennzoil. The facts are these. Defendant was arrested when driving with a concealed weapon on his person and his automobile was taken into custody. ¹ In the course of an inventory search of the auto at the stationhouse an officer picked up the can, and by its lightness concluded that it did not contain oil. This naturally invited his attention, and on discovering that the top pulled out, he proceeded to discover the cocaine.

Defendant makes two claims with respect to this search. The first is that there was no inventory search at all, but that the officers put that cover on it as an excuse. This is an old, familiar, song, heard in many locales. See, e.g., United States v. Pringle, 751 F.2d 419, 425 (1st Cir.1984) (not open to defendant, whose ship was found to contain controlled substances, to claim that Coast Guard was using safety inspection as a pretext). We will not hold that the officer's failure, technically, to follow the inventory form procedures for valuables meant it was not an inventory search. Indeed, we note that in the course of the hearing the court described the search as an inventory search.

Nor was the pseudo oil can "locked and inaccessible." (Police Training Bulletin, furnished by defendant, citing cases.) Indeed, the very fact that it was not should have been the answer to defendant's second contention, erroneously accepted by the court, that the officer's subjective expectation of finding controlled substances in the can vitiated the inventory search. One purpose of an inventory search is to ascertain articles of value, both to protect the owner's property while in police custody, and to protect the police against future claims of misappropriation. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). If an easily openable container is not examined, the search may be deficient. It was not impossible, for example, that paper currency could have been concealed in the can. ² As long as a container is ostensibly searchable for inventorying, it is improper for a court to make inquiry as to the officer's subjective thoughts on a piece by piece basis. Cf. Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1982) ("It is immaterial whether the police actually fear any particular package or container; the need to protect against such risks arises independently of a particular officer's...