USA v. Penn

• Decision Date: 06 December 2000
• Docket Number: No. 00-30033,00-30033
• Citation: 233 F.3d 1111
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. KYLLO KENDALL PENN, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1111

233 F.3d 1111 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. KYLLO KENDALL PENN, Defendant-Appellee.

No. 00-30033

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 14, 2000

Filed December 6, 2000

Jonathan L. Marcus, Department of Justice, Criminal Division, Washington, D.C., for the plaintiff-appellant.

Thomas K. Coan, Portland, Oregon, for the defendant appellee.

Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, District Judge, Presiding. D.C. No.CR-98-00208-19-ALH

Before: Robert R. Beezer, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges.

RYMER, Circuit Judge:

This appeal involves an inventory search of the contents of a vehicle that was being driven by Kyllo Penn without proof of insurance and that, pursuant to Portland municipal law and police department policy, had to be impounded. The Portland Police Bureau officer who conducted the search did so without telling Penn that he could first remove his personal property. The district court ruled that the search was invalid under the Fourth Amendment because the officer had discretion to allow an occupant of an impounded vehicle to take personal property from the car prior to an inventory search, and there are no standard criteria to guide a Portland officer's decision. Accordingly, the court suppressed evidence (including cocaine base) found in the car. The United States appeals, arguing that the Portland City Code requires that an inventory search be made of all property, which necessarily means that the search must take place before any property is released, and that the purposes for an inventory search adequately cabin the officers' discretion. We agree, and reverse.

I

On April 15, 1998 Portland Police Bureau Officer McConnell stopped Penn for making a right hand turn into an inside lane in violation of Oregon Revised Statute S 811.355(1).¹ Officer McConnell requested Penn's driver's license and proof of insurance. Penn gave the officer his license, but was unable to locate proof of insurance. Using his cellular phone, Penn called the car's owner to ask about insurance, but the owner could not confirm that the car was currently insured.

Oregon law prohibits driving uninsured. Or. Rev. Stat. S 806.010. When a person is driving without insurance, Portland police officers are required by Portland Police Bureau General Order 630.60 to tow the vehicle.² Officer McConnell correctly impounded the car that Penn was driving and called for a tow truck. Meanwhile, McConnell became suspicious of criminal activity because of Penn's nervous demeanor, a record check showing a prior drug arrest, and Penn's evasive answer to his question whether there were any weapons in the car. He asked for consent to a pat-down search, which Penn gave. A large amount of cash was found. Penn's passenger, Latoya Carruthers, got out of the car with her purse. McConnell searched it with her consent.

McConnell then conducted an inventory search, as Portland ordinances require whenever an officer impounds a vehicle. Portland City Ordinance No. 168241.³ During the search, Officer McConnell seized 200 grams of cocaine base (found in a brown paper bag), two cellular phones, and a pager. Two briefcases were also found. After obtaining a search warrant, the briefcases were opened and a firearm was found.

A federal grand jury indicted Penn for several crimes, including conspiracy to distribute cocaine in violation of 21 U.S.C. SS 841(a)(1), 846, and 856(a)(2). He moved to suppress all items seized in the warrantless search of the car he was driving. The district court found that the stop was lawful and that Officer McConnell had no discretion in deciding whether to tow when the driver is cited for "No Insurance." However, following an evidentiary hearing, the court concluded that Officer McConnell exercised "unbridled discretion" in deciding not to allow Penn to take his personal property from the car prior to the inventory search. The court found that in the absence of standard procedures, Officer McConnell exercised discretion that resulted in an unreasonable and unconstitutional inventory search. Accordingly, it suppressed all evidence seized from the inventoried car.⁴

The government timely appeals.

II

The government argues that Portland Police Bureau officers, including Officer McConnell, follow standardized criteria in conducting inventory searches and that no matter what he may have thought, McConnell did not possess any discretion to allow Penn to remove personal property before property in the car was inventoried. In the government's view, the Portland City Code requires an inventory of all property in an impounded vehicle, and an officer is given discretion to return personal property only when tow instructions are handed to a driver before towing. These instructions provide: "With the permission of the Officer, you should take your personal property (glasses, medication, tools, etc.) with you. You will not have access to the vehicle until a release is obtained." Portland Police Bureau General Order 630.30, App. B.⁵ The government points out that Penn never asked to remove any personal property. In any event, the government submits, the search must take place before any property is released because otherwise it would defeat the purpose of an inventory search -to assure safety, protection of property, and accountability.

Penn counters that the seizure of personal property violated the bright line rule that police officers must have no discretion with regard to the scope of an inventory search. Because Officer McConnell said he had discretion here, and exercised it in favor of letting Penn's passenger take her purse, Penn contends that it was arbitrary and unreasonable not to tell him that he could take his property, too, before taking an inventory of it.

The boundaries of a permissible inventory search have been set by several decisions of the Supreme Court: South Dakota v. Opperman, 428 U.S. 364 (1976), Colorado v. Bertine, 479 U.S. 367 (1987), and Florida v. Wells, 495 U.S. 1 (1990). In Opperman, local police conducted a routine inventory search of an automobile lawfully impounded by the police for violations of municipal parking ordinances. Rejecting a Fourth Amendment challenge to the search that uncovered marijuana in a plastic bag, the Court noted that it "has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. " 428 U.S. at 373. As the Court explained:

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.

Id. at 369 (citations omitted).

In Bertine, a police officer arrested Bertine on charges of driving under the influence and inventoried the contents of his van before the arrival of a tow truck. The officer found a closed backpack in which controlled substances, cocaine paraphernalia and a large amount of cash were found. The Court held that the Fourth Amendment did not prohibit the State from using evidence discovered during the inventory. 479 U.S. at 369. It observed that the officer inventoried the van in accordance with local police procedures, which required a detailed inspection and inventory of impounded vehicles, and that knowledge of the precise nature of the property helped guard against danger as well as claims of theft. Id. at 370. Specifically with respect to closed containers, the Court noted that its decisions had adhered to the requirement that inventories be conducted according to standardized criteria. Id. at 374 n.6. The Court stated that it was not necessary to require that police, before inventorying a container, weigh the strength of the individual's privacy interest against the possibility that the container might serve as a repository for dangerous or valuable items. Id. at 374-75. Finally, it declined to invalidate regulations that gave police officers discretion to choose between impounding and parking and locking 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." Id. at 375.

Wells involved another inventory search of a closed container that turned up marijuana. The Florida Supreme Court had held that the marijuana should be suppressed, as it read Bertine to require that police procedures must mandate either that all containers be opened or that none will be, leaving no room for discretion. Although affirming the judgment because the Florida Highway Patrol had no policy whatsoever with respect to the opening of closed containers, the United States Supreme Court clarified that it did not mean to preclude any discretion at all; "in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical `all or nothing' fashion." 495 U.S. at 4. Rather:

A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose con tents officers determine they are unable to ascertain from examining the containers' exteriors. The allowance of the exercise of judgment based on concerns related to the...