United States v. Mitchell

• Decision Date: 11 April 1972
• Docket Number: No. 71-1868.,71-1868.
• Citation: 458 F.2d 960
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William Elmer MITCHELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

458 F.2d 960 (1972)

UNITED STATES of America, Plaintiff-Appellant, v. William Elmer MITCHELL, Defendant-Appellee.

No. 71-1868.

United States Court of Appeals, Ninth Circuit.

April 11, 1972.

Eugene A. Lalonde, Asst. U. S. Atty. (argued), Otis L. Packwood, U. S. Atty., Billings, Mont., for plaintiff-appellant.

John L. Adams, Jr. (argued), Billings, Mont., for defendant-appellee.

Before ELY and WRIGHT, Circuit Judges, and POWELL, District Judge.^*

EUGENE A. WRIGHT, Circuit Judge:

Pursuant to 18 U.S.C. § 3731, the United States appeals from an order suppressing evidence. At issue is the admissibility of an automatic pistol found in Mitchell's automobile. The district court suppressed the weapon on the ground that it was obtained in violation of the Fourth Amendment. Finding no unreasonable search or seizure, we reverse.

Mitchell was arrested in Billings, Montana for speeding in the early morning hours of February 5, 1971. He was driving an out-of-state car. At the time he was on parole from a felony conviction, under the supervision of the federal probation office in Santa Ana, California. Because he was unable to make bond, he was confined in the city jail to await appearance in municipal court.

Pursuant to standard police procedure, a patrolman was instructed by his superior to take Mitchell's car to the city impounding lot some distance from the police station. After he had entered the car and while driving it to the lot, the officer observed a partially opened sample case on the floor in front of the passenger side of the front seat. He also saw several valuable watches in plastic cases on the front seat, and apparently on the floor around the sample case as well. Each watch had a price tag of $125.00 affixed.

Upon arrival at the lot, the officer straightened up the sample case and put the watches in it. In the process of placing the watches in the case he noticed a weapon inside. He secured the car and returned to the police station where the case and its contents were inventoried. There were 29 watches, a blackjack, and an automatic pistol.

Mitchell was subsequently charged with possession of a weapon by a felon, a violation of 18 U.S.C. App. § 1202(a).

The first issue is whether the actions of the patrolman were a search within the ambit of the Fourth Amendment. We note that there was no intent to discover evidence of crime. Rather this was responsible, indeed laudable, police conduct to protect the property of the owner of a lawfully impounded car. If valuable property had been left on the seat and floor of the car, plainly visible to anyone peering through the window, the danger of theft would have been substantial. Not surprisingly, it appears that the locking and securing of impounded cars, and the removal and inventory of valuable property in plain sight, are standard procedures. They certainly should be.

These procedures protect not only the interests of the property owner but also those of the city against a claim that property in the car at the time of impounding "mysteriously disappeared" while the car was in the custody of the authorities.

In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) the Supreme Court approved reasonable police conduct which protected an impounded car. The court stated:

"A regulation of the Metropolitan Police Department requires the officer who takes an impounded vehicle in charge to search the vehicle thoroughly, to remove all valuables from it, and to attach to the vehicle a property tag listing certain information about the circumstances of the impounding. Pursuant to this regulation, and without a warrant, the arresting officer proceeded to the lot to which petitioner\'s car had been towed, in order to search the vehicle, to place a property tag on it, to roll up the windows, and to lock the doors. The officer entered on the driver\'s side, searched the car, and tied a property tag on the steering wheel. Stepping out of the car, he rolled up an open window on one of the back doors. Proceeding to the front door on the passenger side, the officer opened the door in order to secure the window and door. He then saw the registration card, which lay face up on the metal stripping over which the door closes. The officer returned to the precinct, brought petitioner to the car, and confronted petitioner with the registration card. Petitioner disclaimed all knowledge of the card. The officer then seized the card and brought it into the precinct. Returning to the car, he searched the trunk, rolled up the windows, and locked the doors.

"The sole question for our consideration is whether the officer discovered the registration card by means of an illegal search. We hold that he did not. The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances." 390 U.S. at pp. 235-236, 88 S.Ct. at p. 993.

This reasoning might easily lead to a conclusion that reasonable measures taken to protect an impounded car and personal property in plain sight within it are not a search within the scope of the Fourth Amendment. However, it is not necessary for us to reach the issue of whether this police conduct was a search. It is enough to hold that under the facts of this case the action of the patrolman in safeguarding valuable property in plain sight in a lawfully impounded car was reasonable, and hence not prohibited by the Fourth Amendment. That amendment, of course, does not prohibit all searches; it forbids only unreasonable searches. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); United States v. Novick, 450 F.2d 1111 (9th Cir. 1971).

We note that police regulations, such as the one involved in Harris, requiring a thorough search and inventory of the contents of impounded cars are frequently standard procedure. Such inventories are gaining judicial acceptance within what Judge Roney has called the "maturing law of search and seizure." United States v. Edwards, 441 F.2d 749, 755 (5th Cir. 1971).

Although inventories of personal property may extend beyond those items in plain view to a search of glove compartment and trunk, for the purpose of safeguarding private property and protecting the government against false claims, the federal courts have upheld such procedures. United States v. Pennington, 441 F.2d 249 (5th Cir. 1971), cert. denied 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Robbins, 424 F.2d 57 (6th Cir. 1970), cert. denied 402 U.S. 985, 91 S.Ct. 1674, 29 L.Ed.2d 151 (1971); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). See also United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); and United States v. Sterling, 321 F.Supp. 1301 (E. D.La.1971). Cf. Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967), habeas corpus granted sub nom. Heffley v. Hocker, 420 F.2d 881 (9th Cir. 1969), vacated and remanded, 399 U.S. 521, 90 S.Ct. 2236, 26 L.Ed.2d 780 (1970), habeas corpus denied, 429 F.2d 1321 (9th Cir. 1970); Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971); People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971). See also: Comment, The Inventory Search of an Impounded Vehicle, 48 Chi.-Kent L.Rev. 48 (1971). But cf. Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971).

Several of these cases go beyond what we are asked to do. We are concerned only with protection of valuable property in plain view in a lawfully impounded automobile—that is, with the reasonable action of the patrolman in picking up the watches, placing them in the already open sample case, and carrying the case and its contents back to the station house to be inventoried and held in safekeeping.

The patrolman did not open a closed briefcase or the trunk of the car. While it appears that he did remove watches from the glove compartment, no evidence was found there. We do not reach the question of whether any such evidence would have been admissible.

The District of Columbia Circuit has recently considered the issue before us. United States v. Fuller, 277 F.Supp. 97 (D.D.C.1967); conviction affirmed, sentence vacated, case remanded for resentencing 139 U.S.App.D.C. 375, 433 F.2d 533 (1970). Defendant was arrested for operating a motor vehicle without running lights and without a valid driver's license. He was unable to post bail and was confined. Pursuant to standard police procedure, the arresting officer

"proceeded directly to the parking lot to secure the vehicle, a procedure requiring the removal of all valuables for safekeeping, rolling up the windows, and locking the car. He noticed an eyeglass case partially protruding from beneath the front seat of the vehicle, and discovered within it 10 vials of a drug called Methergine and a bottle containing 45 tablets of a drug called Desoxyn." 277 F.Supp. at p. 98.

The district court ruled that this was not an unreasonable search. It stated:

"Certainly, the Police had a duty to protect the interior of the car from the elements by making sure that the windows were rolled up. The practice of protecting whatever valuables may be found in an automobile by keeping them in an envelope inside the precinct is not only not unreasonable, but is also in the public interest where it is not utilized as a substitute for a search without a warrant. It is not unusual for items to disappear from parked vehicles in this jurisdiction, in spite of well lit parking lots and locked doors. In Harris v. United

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