United States v. Cartwright

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1879

U NITED S TATES OF AMERICA,

Plaintiff-Appellee,

v.

D EWAYNE C ARTWRIGHT,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 08-CR-142—William T. Lawrence, Judge.

A RGUED O CTOBER 18, 2010—D ECIDED D ECEMBER 29, 2010

Before

P OSNER and W OOD , Circuit Judges, and

A DELMAN, District Judge.Œ

A DELMAN, District Judge. Police pulled Dewayne Cart-

wright over for a traffic violation, arrested him when

he failed to produce a driver’s license and gave a false

name, then searched the car incident to his arrest,

locating a gun in the back seat. Charged with possessing

Œ

Of the Eastern District of Wisconsin, sitting by designation.

2 No. 10-1879

a firearm as a felon, see 18 U.S.C. § 922(g)(1), Cart-

wright moved to suppress the firearm, relying on

Arizona v. Gant, 129 S. Ct. 1710 (2009), a decision that

came down subsequent to his arrest and which nar-

rowed the scope of a permissible automobile search

incident to arrest. The district court held an evidentiary

hearing, then denied the motion, concluding that the

police would have inevitably discovered the firearm

pursuant to an inventory search of the car. Cartwright

entered a conditional guilty plea, and the district court

sentenced him to 84 months in prison. Cartwright

now appeals the denial of his motion to suppress,

arguing that the district court erred in applying the

inevitable discovery doctrine. We affirm.

I. BACKGROUND

On August 12, 2008, at about 9:00 p.m., Officer Richard

Stratman of the Indianapolis Metropolitan Police Depart-

ment (“IMPD”), while on routine patrol, noticed a

vehicle without an illuminated rear license plate, a viola-

tion of Indiana law. See Ind. Code § 9-19-6-4(e). Stratman

stopped the vehicle, which pulled into a grocery store

parking lot, stopping between two rows of parking

spaces but not in a designated spot. The car was

occupied by the driver, Cartwright; a front seat pas-

senger, Ciera Golliday, who owned the car; and in the

back seat, Golliday’s two- or three-year-old child.

Stratman asked Cartwright for his driver’s license,

but Cartwright replied that he did not have one in his

possession. Stratman asked the driver for his name, and

No. 10-1879 3

Cartwright gave a name Stratman could not confirm.

Based on Cartwright’s nervous demeanor and refusal to

identify himself, Stratman removed him from the car,

handcuffed him, and placed him under arrest. See

Ind. Code § 34-28-5-3.5 (“A person who knowingly or in-

tentionally refuses to provide either the person’s:

(1) name, address, and date of birth; or (2) driver’s

license, if in the person’s possession; to a law enforce-

ment officer who has stopped the person for an infraction

or ordinance violation commits a Class C misdemeanor.”).

In the meantime, Officer James Barleston arrived on the

scene and removed Golliday and her child from the car.

Subsequent to Cartwright’s arrest, Barleston searched

the back seat and found a loaded Ruger semi-automatic

pistol. After removing and securing the gun, Barleston

completed a search of the car, finding nothing other

than old clothes.

Pursuant to IMPD policy, Stratman had the car towed,

as Cartwright was under arrest and Golliday did not

have a driver’s license. Also pursuant to IMPD policy,

Barleston performed an inventory search of the car prior

to its impoundment, finding nothing of value, and

filled out a tow slip, listing the reason for the tow as

“arrest.” However, contrary to IMPD policy, Barleston

failed to list all of the car’s contents, only the keys. He

testified that, although he usually lists the inventory of

a vehicle on the tow slip, he did not do so in the present

case because he found nothing of importance.

Golliday testified that upon learning the car would be

towed she asked the officers to allow her to have some-

4 No. 10-1879

one else move it, but they refused. She stated that

because she lacked the funds to retrieve the car from

impoundment she would have allowed anyone, even

a stranger, to move the car. Stratman and Barleston testi-

fied that they did not recall Golliday making any

such request.

At the time of this encounter, our circuit allowed

police to search a vehicle incident to the driver’s arrest

even after having removed and secured the driver. See,

e.g., United States v. Sholola, 124 F.3d 803, 817-18 (7th Cir.

1997); see also New York v. Belton, 453 U.S. 454, 460

(1981) (holding that when an officer has made a lawful

custodial arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that arrest,

search the interior of that automobile). However, in Gant,

the Supreme Court narrowed the rule, holding that:

Police may search a vehicle incident to a recent occu-

pant’s arrest only if the arrestee is within reaching

distance of the passenger compartment at the time

of the search or it is reasonable to believe the vehicle

contains evidence of the offense of arrest. When

these justifications are absent, a search of an arrestee’s

vehicle will be unreasonable unless police obtain a

warrant or show that another exception to the war-

rant requirement applies.

129 S. Ct. at 1723-24.

In response to Cartwright’s motion to suppress below,

the government acknowledged that Gant made a search

incident to arrest improper but argued that the police

would have inevitably discovered the gun pursuant to

No. 10-1879 5

the inventory search. The district court agreed and

denied the motion.

II. DISCUSSION

A. Standard of Review

We apply a dual standard of review to a district court’s

denial of a suppression motion, reviewing legal conclu-

sions de novo and findings of fact for clear error. United

States v. Jackson, 598 F.3d 340, 344 (7th Cir.), cert. denied,

131 S. Ct. 435 (2010). In the context of an inven-

tory search, we review for clear error a district court’s

conclusion that the police followed standard impound-

ment procedures, but our review of the reasonableness

of the inventory search and seizure is plenary. United

States v. Cherry, 436 F.3d 769, 772-73 (7th Cir. 2006).

B. Inevitable Discovery

Under the inevitable discovery doctrine, if the gov-

ernment can establish that the evidence at issue, even

though unlawfully obtained, would have inevitably been

discovered through lawful means, then the deterrence

rationale animating the exclusionary rule has so little

basis that the evidence should be admitted. Nix v.

Williams, 467 U.S. 431, 444 (1984). To obtain the benefit

of the doctrine, the government must show a chain of

events that would have led to a warrant or some other

justification independent of the unlawful search. United

States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995).

6 No. 10-1879

Inventory searches constitute a well-recognized excep-

tion to the warrant requirement and are reasonable

under the Fourth Amendment. See South Dakota v.

Opperman, 428 U.S. 364, 376 (1976). In Opperman, the

Supreme Court noted that local police departments

routinely inventory and secure the contents of im-

pounded automobiles. Doing so protects the police from

potential danger, protects the owner’s property while

it remains in police custody, and protects the police

against claims of lost, stolen, or damaged property. Id.

at 369. An inventory search is lawful if (1) the

individual whose possession is to be searched has been

lawfully arrested, and (2) the search is conducted as part

of the routine procedure incident to incarcerating an

arrested person and in accordance with established

inventory procedures. United States v. Jackson, 189 F.3d

502, 508-09 (7th Cir. 1999). “Both the decision to take

the car into custody and the concomitant inventory

search must meet the strictures of the Fourth Amend-

ment.” United States v. Duguay, 93 F.3d 346, 351 (7th

Cir. 1996). “[T]he decision to impound (the ‘seizure’) is

properly analyzed as distinct from the decision to in-

ventory (the ‘search’).” Id.

In the present case, the district court found that, pursu-

ant to IMPD policy, the officers towed the vehicle from

the scene because Golliday, the passenger/owner, did not

have a driver’s license and Cartwright was under ar-

rest. The district court further noted that under IMPD

policy the police conduct inventory searches prior to

impounding a vehicle. The district court found that the

police conducted such a search in the present case and

No. 10-1879 7

concluded that had they not already found the gun,

they would inevitably have done so.

Cartwright argues the district court ignored Golliday’s

testimony that she could have found someone to move

the car, making impoundment unnecessary. He relies

primarily on Duguay, in which we found unreasonable

the decision to impound a car in which the defendant

was a passenger because the defendant’s girlfriend, the

driver, could have moved it. We said that: “The decision

to impound an automobile, unless it is supported by

probable cause of criminal activity, is only valid if the

arrestee is otherwise unable to provide for the speedy

and efficient removal of the car from public thorough-

fares or parking lots.” Duguay, 93 F.3d at 353. This case

is nothing like Duguay, and we find that the officers

acted reasonably in impounding the car here.

As we have noted, the police followed IMPD policy in

deciding to tow the car. While that fact is important, it

is not dispositive for purposes of the Fourth Amend-

ment. The existence of a police policy, city ordinance, or

state law alone does not render a particular search or

seizure reasonable or otherwise immune from scrutiny

under the Fourth Amendment. See Sibron v. New York,

392 U.S. 40, 61 (1968) (“The question in this Court upon

review of a state-approved search or seizure is not

whether the search (or seizure) was authorized by state

law. The question is rather whether the search was rea-

sonable under the Fourth Amendment.”); Miranda v.

City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (ex-

plaining that “the decision to impound pursuant to

8 No. 10-1879

the authority of a city ordinance and state statute does

not, in and of itself, determine the reasonableness of the

seizure under the Fourth Amendment”). We must there-

fore take an independent look at the policy Indianapolis

followed.

Unlike the police department in Duguay, which had no

standardized procedure, see id. at 352, the IMPD has a

comprehensive towing and impoundment policy, which

the government introduced at the evidentiary hearing

below. The policy sets forth the circumstances under

which the police may tow a car, establishes the pro-

cedures officers must follow in calling for a tow, requires

an inventory search whenever an officer takes a vehicle

into custody, and specifically forbids inventory searches

“motivated by an officer’s desire to investigate and seize

evidence of a criminal act.” See Cherry, 436 F.3d at 776-77

(Posner, J., dissenting) (explaining that established inven-

tory search procedures protect against such pretext

searches). As is pertinent here, the IMPD policy permits

the impoundment of vehicles “operated by a non-licensed

or suspended driver” or “by [a] person under custodial

arrest for any charge.” Because Golliday was unlicensed

and Cartwright under arrest, the policy permitted im-

poundment in the present case. See United States v.

Velarde, 903 F.2d 1163, 1166 (7th Cir. 1990) (upholding

police impoundment where neither driver nor passenger

had a valid driver’s license). The IMPD policy is suffi-

ciently standardized, the district court committed no

clear error in finding that the officers followed the

policy, and, for the reasons that follow, we find the offi-

cers’ actions reasonable under the circumstances.

No. 10-1879 9

Unlike Duguay, where the officers impounded the car

despite the presence on the scene of a licensed driver

readily able to move it, 93 F.3d at 353, the record in

this case shows that the unlicensed Golliday had no

means of ensuring the “speedy and efficient” removal of

her car from the parking lot. At the evidentiary hearing,

Golliday testified that she called “someone” to come

and pick up the car, but she never identified that person

or stated how long it would have taken him/her to

get there. Golliday mentioned that her mother-in-law

worked at the grocery store, but she was not working on

the night of this encounter. Golliday said that she was

“vaguely familiar” with some of the store’s other em-

ployees, but the record contains no evidence that any

of those acquaintances were present and willing to

assume responsibility for the car. Ultimately, Golliday

stated that she would have allowed anyone, even a li-

censed stranger, to move the car. The Fourth Amend-

ment does not require that the police offer these sorts

of alternatives to impoundment. See Colorado v. Bertine,

479 U.S. 367, 373-74 (1987) (holding that the police need

not give a motorist “an opportunity to make alternative

arrangements” that avoid impoundment and inventory);

United States v. Clinton, 591 F.3d 968, 972 (7th Cir.)

(“That Clinton’s girlfriend, the owner of the car, could

have been called to take possession of the car, is irrele-

vant.”), cert. denied, 131 S. Ct. 246 (2010); Cherry, 436 F.3d

at 775 (stating that officers need not invite or accept

input from the motorist as to the appropriate disposition

of his vehicle; “nor does the Fourth Amendment demand

that police offer a motorist an alternative means of re-

10 No. 10-1879

moving his vehicle that will avoid the need to tow it and

conduct an inventory search”); United States v. Privett,

68 F.3d 101, 104 (5th Cir. 1995) (finding a search within

the inventory exception, even though the vehicle could

have been towed to the motorist’s home rather than an

impound lot); United States v. Skillern, 947 F.2d 1268,

1275-76 (5th Cir. 1991) (holding that the police were not

required to offer a motorist an alternative to impound-

ment).1

1

At oral argument, Cartwright’s lawyer advised that the

grocery store permitted abandoned vehicles to remain in the

parking lot for seventy-two hours, possibly enough time for

Golliday to find a licensed driver or fix the license plate

lamp. However, the Fourth Amendment did not require the

officers to explore such alternatives with the store owner. Nor

were the officers obliged to leave the car where it was—stopped

between two rows of parking spaces—as this may have

created a hazard to others using the lot or rendered the police

vulnerable to claims had the car been stolen, vandalized, or

damaged. See, e.g., United States v. Brown, 787 F.2d 929, 932

(4th Cir. 1986) (“[W]e are of opinion that the police officer in

this case could reasonably have impounded Brown’s vehicle

either because there was no known individual immediately

available to take custody of the car, or because the car could

have constituted a nuisance in the area in which it was

parked [i.e., a private lot adjacent to apartments and a busi-

ness.]”); Cabbler v. Superintendent, Va. Penitentiary, 528 F.2d

1142, 1143, 1146 (4th Cir. 1975) (holding that the police do not

violate the Fourth Amendment when they tow a vehicle to

protect it or to remove a nuisance after arresting the driver

(continued...)

No. 10-1879 11

Moreover, no one could have lawfully driven

Golliday’s car from the scene, as it did not have the

functional license plate lamp required by Indiana law.

Ind. Code § 9-19-6-4(e) (“Either a tail lamp or a separate

lamp must be placed and constructed so as to illuminate

the rear registration plate with a white light and make

the plate clearly legible from a distance of fifty (50) feet

to the rear.”). In the absence of such a lamp, the car was

not lawfully operable. See, e.g., Freeman v. State, 904

N.E.2d 340, 342 (Ind. Ct. App. 2009).

Finally, Cartwright argues that Barleston did not

conduct the inventory search properly, failing to make a

complete list of the property he found in Golliday’s car.

While Cartwright correctly points out that IMPD policy

required Barleston to make such a list, Barleston’s

failure to do so does not undermine the proposition

that the police would inevitably have found the gun

through a lawful inventory search. In determining

1

(...continued)

away from home if the driver has no means immediately

available for safekeeping of the vehicle); United States v.

Cauthen, 669 F. Supp. 2d 629, 633-36 (M.D.N.C. 2009) (discussing

the need to impound a vehicle for the purpose of protecting

it after the arrest of the driver, even when the vehicle was

parked in a private lot); Hess v. Ryan, 651 F. Supp. 2d 1004, 1045

(D. Ariz. 2009) (“The police generally have the authority to

impound a vehicle following an arrest of its driver, as part of

their ‘care-taking’ functions, whether to avoid safety concerns,

to insure the safety of the vehicle, or simply to keep it from

being abandoned on another’s property.”).

12 No. 10-1879

whether the inevitable discovery doctrine applies, the

court considers a hypothetical situation. Of course, by

the time Barleston conducted the actual inventory

search here, the gun had already been seized, and Cart-

wright was already under arrest. But the district court

found, based on the evidence and the IMPD policy,

that an inventory search would have been conducted

and that the gun would have been found pursuant to

such a search. The evidence supports that conclusion.

In any event, we have held that minor deviations

from department policy do not render an inventory

search unreasonable. See United States v. Lomeli, 76 F.3d

146, 148-49 (7th Cir. 1996).2

III. CONCLUSION

For the foregoing reasons, we A FFIRM Cartwright’s

conviction.

2

Because we affirm based on inevitable discovery, we need

not address the government’s alternate argument that the

search should be upheld under the good faith doctrine.

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