U.S. v. Wilson, 90-1578
| Decision Date | 31 July 1991 |
| Docket Number | No. 90-1578,90-1578 |
| Citation | 938 F.2d 785 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Westley WILSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert Haida, Asst. U.S. Atty., Criminal Div., East St. Louis, Ill., for United States.
Barry Levenstam, Jerold S. Solovy, Ellen R. Kordik, Jenner & Block, Chicago, Ill., for John W. Wilson.
Before CUMMINGS, COFFEY and MANION, Circuit Judges.
The defendant-appellant, John Westley Wilson, appeals his conviction and sentence for possession with intent to distribute cocaine, and the unlawful use or carrying of a firearm during and in relation to a drug trafficking crime. Affirm.
On August 25, 1989, a grand jury returned a two-count indictment against the defendant Wilson. Count One charged Wilson with violating 21 U.S.C. Sec. 841(a)(1) "possess[ing] with intent to distribute approximately 260 grams of a substance containing cocaine ..."; 1 Count Two charged the defendant with violating 18 U.S.C. Sec. 924(c)(1) by using and carrying a firearm "during and in relation to a drug trafficking crime ...". 2
On October 27, 1989, the defendant filed a motion to suppress the evidence obtained during the search of his vehicle and to suppress any statements made after arrest, alleging that the search was conducted without either a warrant or probable cause, in violation of the Fourth Amendment. The district court denied the defendant's motion to suppress on the ruling that (1) the search was an inventory search, and thus excepted from the requirements of the Fourth Amendment; and (2) the defendant's statements were lawfully obtained, pursuant to the legal inventory search and a proper Miranda warning.
On November 27, 1989, the defendant went to trial on the charges of drug trafficking and unlawful use or carrying of a firearm during and in relation to a drug trafficking crime. At trial, Illinois State Patrol Trooper Thomas Oliverio testified that at approximately 2:00 p.m. on August 19, 1989, he stopped a white Nissan driven by the defendant while patrolling I-57 in Marion County, Illinois, as a vehicle with only one Illinois license plate, thus in violation of Illinois law. Trooper Oliverio further testified that after a routine check of the defendant's driver's license, he was advised that there was an outstanding arrest warrant against the defendant for battery. Officer Oliverio placed the defendant under arrest and temporarily confined him in his squad car.
At this time, Illinois State Trooper Greg Miller, who had arrived earlier to provide assistance to his fellow officer, began to inventory the contents of the vehicle pursuant to the dictates of Illinois State Police Tow-In Policy and Procedure. Officer Oliverio testified that departmental policy required an inventory of the contents of all towed vehicles. After Trooper Miller finished inspecting the passenger compartment, State Patrol Officer Oliverio joined him in his inventory of the vehicle's trunk while the defendant remained in the front seat of Oliverio's squad car. Officer Miller began to inventory the contents of the trunk, and after removing a Coleman lantern, the officers observed a light plastic bag with a green design. Officer Oliverio testified that Miller opened the bag and removed a pistol and fifteen rounds of ammunition in the magazine. 3 Directly underneath this bag, Officer Miller found a blue duffel bag. He handed the duffel bag to Oliverio. Oliverio testified that its contents included an Ohaus triple beam scale, a small black Derring scale, nine individually wrapped plastic bags of a white powdery substance containing cocaine, and numerous baggies. 4 Officer Miller completed a standardized Tow-In recovery sheet, listing the items of value inventoried during the search.
Upon discovering the evidence, Officer Oliverio returned to his squad car and advised the defendant of his Miranda rights, which the defendant orally waived, and then questioned him about the contents of the trunk. Officer Oliverio testified that the defendant admitted that he owned the gun and had been hired to deliver the cocaine to a third party in Murphysboro, Illinois.
The defendant went to trial and on November 28, 1989, the jury found him guilty of each of the counts set forth in the indictment. At sentencing, the district court imposed a forty-one month term of confinement on Count One, and a sixty-month sentence on Count Two to run consecutively to Count One, plus a fine of $100.
On appeal, the defendant contends that (1) the district court erred in denying his motion to suppress the evidence obtained during the vehicle's search because the search was not conducted pursuant to a specific standardized policy regulating the opening of closed containers, and in failing to exclude his confession as the fruit of an illegal search; 5 and (2) the government failed to prove beyond a reasonable doubt that the defendant used or carried the recovered firearm during and in relation to a drug trafficking offense.
The defendant argues on appeal that the officers' inventory search of his vehicle was not conducted pursuant to a specific, standardized policy/procedure regulating the opening of closed containers and therefore violated the Fourth Amendment. The defendant contends that since the Illinois State Police Tow-In Policy does not specifically mention the opening of closed containers, officers may not open containers found during an inventory search. Thus, the district court erred in denying the defendant's motion to suppress the evidence (the cocaine and the gun) found during Officer Miller's search of the defendant's trunk and bags. We will not reverse the trial court's decision on a motion to suppress evidence unless it is clearly erroneous. United States v. Dunigan, 884 F.2d 1010, 1014 (7th Cir.1989).
Inventory searches are a well-recognized exception to the Fourth Amendment's warrant requirements. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Velarde, 903 F.2d 1163 (7th Cir.1990); Florida v. Wells, --- U.S. ----, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); United States v. Kordosky, 921 F.2d 722 (7th Cir.1991). Strong governmental interests and the diminished expectation of privacy in an automobile allow for searches conducted pursuant to inventory procedures because inventory searches "serve to protect an owner's property while it is in the custody of the police, to insure against claims of loss, stolen, or vandalized property, and to guard the police from danger." Bertine, 107 S.Ct. at 741 (1987).
Ever since the holding in Bertine that "reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment," the Supreme Court has delineated the constitutional parameters of a warrantless inventory search. Id. at 742. In its most recent decision, Florida v. Wells, --- U.S. ----, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990), the Court concluded that police may search the contents of a vehicle so long as "standardized criteria or established routine" exist regarding the opening of containers. The procedure should direct officers to inventory the contents of an impounded item and should not be a disguise "for general rummaging in order to discover incriminating evidence." Id. However, within the constraints of the policy/procedure, officers may exercise discretion in deciding whether or not to open a particular container:
Id. (quotation and citations omitted). 6
This court recently (prior to Wells) defined the permissible scope of a warrantless inventory search. A search is constitutional "if (1) the individual whose possession is to be searched has been lawfully arrested, ... and (2) the search satisfies the fourth amendment standard of reasonableness, i.e., it is conducted as part of the routine procedure incident to incarcerating an arrested person and in accordance with established inventory procedures" United States v. Velarde, 903 F.2d 1163, 1165 (7th Cir.1990) (citation omitted). Since the validity of the defendant's arrest is not at issue here, we need only concern ourselves with the constitutionality of the inventory search.
The defendant contends that the Illinois State Police did not have any policy in effect at the time of his arrest regulating inventory searches of closed containers. Officer Oliverio testified at trial that he and Officer Miller searched the defendant's vehicle, and in contradiction of the defendant's assertion that the Illinois State Police did not have a policy in effect, established that the search was conducted in accordance with the Department's Tow-In Policy DST/ENF 13. The relevant portions of the policy referred to as Illinois State Police Tow-In Policy and Procedure at the time of the defendant's arrest are as follows:
The division of State Troopers...
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