Raymond Marling v. Richard Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-3077

RAYMOND MARLING,

Petitioner-Appellee,

v.

FRANK LITTLEJOHN, Deputy Warden, Wabash Valley Correc-

tional Facility,

Respondent-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:19-cv-00002-JRS-DLP — James R. Sweeney II, Judge.

____________________

ARGUED APRIL 28, 2020 — DECIDED JULY 13, 2020

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Before EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.

EASTERBROOK, Circuit Judge. After Raymond Marling was

arrested, on a warrant, while driving his car, police in Indi-

ana took an inventory of its contents. The trunk held a

locked box. An officer opened the box with a screwdriver

and found illegal drugs. Together with other evidence (in-

cluding the fact that Marling was armed, despite felony con-

victions that made this unlawful), these drugs played a role

2 No. 19-3077

in his convictions and 38-year sentence, which includes a 20-

year enhancement for being a habitual criminal.

Marling’s lawyer asked the trial court to suppress the

contents of the box, arguing that opening it was improper.

That argument lost in the trial court and lost again on ap-

peal. Marling v. State, 2014 Ind. App. Unpub. LEXIS 1305

(Sept. 30, 2014). He filed a collateral aeack, this time arguing

that his trial and appellate lawyers had furnished ineffective

assistance by not presenting the best reasons for objecting to

the box’s opening. He contended that counsel should have

argued that opening his box damaged it, violating the police

department’s policy. The post-conviction court held a hear-

ing, took evidence, and rejected this contention. The court of

appeals affirmed, concluding among other things that coun-

sel’s omission was not prejudicial because the record did not

show that the box had been damaged. 2018 Ind. App. Un-

pub. LEXIS 610 (May 25, 2018). But a federal district court is-

sued a writ of habeas corpus, 2019 U.S. Dist. LEXIS 163777

(S.D. Ind. Sept. 24, 2019), ruling that a photograph in the rec-

ord shows damage to the box’s lock. This meant, the judge

stated, that the state court’s finding had been rebueed by

clear and convincing evidence. 28 U.S.C. §2254(e)(1).

A factual mistake by a state court does not support col-

lateral relief, unless a correction shows that the petitioner “is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. §2254(a). Ineffective assis-

tance of counsel suffices, because it violates the Sixth

Amendment (applied to the states by the Fourteenth). Indi-

ana has assumed that failure of counsel at trial and on ap-

peal to choose the best argument in support of a motion can

violate the Sixth Amendment, despite many cases holding

No. 19-3077 3

that it is essential to evaluate counsel’s overall performance

rather than find a single error. See, e.g., Strickland v. Washing-

ton, 466 U.S. 668, 691–96 (1984); Williams v. Lemmon, 557 F.3d

534, 538–40 (7th Cir. 2009). Because Indiana has not made

this potential argument we do not pursue it. See United

States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Still, it re-

mains necessary to show that counsel’s decision was both

substantively deficient and prejudicial. The state’s appellate

court applied the Strickland standard, and our review of the

outcome under §2254(d) has been called “doubly deferen-

tial”. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

The district judge found both deficient performance and

prejudice because Florida v. Wells, 495 U.S. 1 (1990), holds

that the validity of an inventory search depends on the po-

lice department having a policy about when to take invento-

ries. The judge read Wells to say that compliance with this

policy is essential, which implies that a violation of a local

policy also violates the Constitution. The judge read the local

policy at issue to forbid damage to a container, which led

him to find a constitutional error, which counsel had failed

to call to the state court’s aeention. We think that the judge

has misunderstood both Wells and the local policy.

Wells holds that a policy is important, but not because the

Constitution demands that states suppress evidence ac-

quired through violations of state or local rules. That possi-

bility was rejected in Virginia v. Moore, 553 U.S. 164 (2008),

among many other decisions. See also, e.g., Wilson v. Corco-

ran, 562 U.S. 1, 5 (2010) (federal court may not issue a writ

under §2254 based on an asserted error of state law). Wells

explained why a policy maeers:

4 No. 19-3077

Our view that standardized criteria or established routine must

regulate the opening of containers found during inventory

searches is based on the principle that an inventory search must

not be a ruse for a general rummaging in order to discover in-

criminating evidence. The policy or practice governing inventory

searches should be designed to produce an inventory. The indi-

vidual police officer must not be allowed so much latitude that

inventory searches are turned into a purposeful and general

means of discovering evidence of crime.

But in forbidding uncanalized discretion to police officers con-

ducting inventory searches, there is no reason to insist that they

be conducted in a totally mechanical “all or nothing” fashion.

“[I]nventory procedures serve to protect an owner’s property

while it is in the custody of the police, to insure against claims of

lost, stolen, or vandalized property, and to guard the police from

danger.” 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 con-

tainers or of opening no containers are unquestionably permissi-

ble, it would be equally permissible, for example, to allow the

opening of closed containers whose contents officers determine

they are unable to ascertain from examining the containers’ exte-

riors. The allowance of the exercise of judgment based on con-

cerns related to the purposes of an inventory search does not

violate the Fourth Amendment.

495 U.S. at 4 (cleaned up). Thus “open all containers” is a

valid policy. So is “exercise discretion”. What maeers is that

there be some policy that makes the inventory something

other than a search based on belief that it will turn up evi-

dence of crime. The Justices did not suggest that every de-

parture from any policy violates the Fourth Amendment.

Suppose a local policy calls for opening a locked box with a

hammer and chisel, while one officer uses a lockpick instead.

Or suppose a policy says that items are to be stored in evi-

dence bags, while one officer put them in boxes. Such depar-

No. 19-3077 5

tures from a policy lack constitutional significance under the

rationale of Wells.

The North Vernon Police Department, whose officers

stopped Marling’s car and opened the box, has an inventory

policy. Section 49.3.2 of General Order 49 provides:

Inventory the contents of suitcases, boxes, and other containers.

…

Closed and/or Locked Containers - Inventory all closed or locked

containers. If a situation exists that requires extreme measures

(extensive time, manpower and equipment), and/or unreasona-

ble potential damage to property, the officer should avoid open-

ing the container, but should document why the container was

not opened.

This says that all locked containers are to be opened and in-

ventoried, though the officer “should avoid” opening a con-

tainer when that would cause “unreasonable potential dam-

age” to property. The policy is valid under Wells: it combines

a presumptive rule of opening everything with a discretion-

ary (“should”) exception when the damage would be “un-

reasonable” in the officer’s judgment. And because the poli-

cy is valid, the search is valid too. A federal judge’s disa-

greement with how an officer exercises discretion under a

local policy does not make a search unconstitutional in ret-

rospect. See United States v. Cartwright, 630 F.3d 610, 616 (7th

Cir. 2010). Any other understanding would amount to using

the Constitution to enforce the details of local law, which

Moore and many other decisions say is improper.

It follows that the district judge’s disagreement with the

state judiciary about whether the officer followed the local

policy is not a sufficient ground for collateral relief. And, for

what it is worth, we do not see a violation of the local policy.

6 No. 19-3077

The judge included in his opinion a picture showing

some damage to the box’s lock. That was enough, he

thought, to establish the policy’s violation, even though Mar-

ling did not draw this picture to the aeention of the state’s

appellate court. Let us suppose that the judges should have

examined the picture anyway. Still, the policy does not for-

bid all damage; it forbids unreasonable damage. This box was

intact, and the lock could have been fixed or replaced. Why

was the damage “unreasonable”? The judge did not say.

Then there is the discretionary language in the General Or-

der. The judge apparently understood Wells to forbid the use

of discretion, such as evaluating when a potential for dam-

age would be “unreasonable”. Yet the principal holding of

Wells is that discretion about inventory searches is compati-

ble with the Fourth Amendment. The Justices wrote:

Nothing in South Dakota v. Opperman, 428 U.S. 364 (1976), or Illi-

nois v. LafayeLe, 462 U.S. 640 (1983), prohibits the exercise of po-

lice discretion so long as that discretion is exercised according to

standard criteria and on the basis of something other than suspi-

cion of evidence of criminal activity.

Wells, 495 U.S. at 3–4 (cleaned up), quoting from Colorado v.

Bertine, 479 U.S. 367, 375 (1987). The officer who opened and

inventoried the contents of this box acted within the scope of

discretion granted by General Order 49. As Wells requires,

discretion under the policy is unrelated to beliefs about the

container’s contents. If the officer did too much (“unreason-

able”) damage, that could have been the basis for a tort claim

under state law. It is not a basis for a conclusion that the

Fourth Amendment required the suppression of incriminat-

ing evidence. It follows that counsel did not violate the Sixth

Amendment by omieing this line of argument.

REVERSED