United States v. Richardson

RIPPLE, Circuit Judge,

concurring.

I am pleased to join in the judgment and opinion of the court insofar as it rests on the ground that the search of Mr. Richardson’s ear was justified as a search incident arrest under New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981). Indeed, the facts here present a textbook example of a case calling for the application of Belton : The defendant was lawfully arrested; the search occurred immediately following the arrest at the scene; and the shaving kit was under the front seat (i.e., in the passenger compartment) and was capable of holding another object (indeed, it held a gun). Belton validates the search. See id. at 460-62 & n. 4, 101 S.Ct. at 2864 -65 & n. 4. It is irrelevant that Mr. Richardson had been arrested before the search occurred; indeed, the defendant in Belton had been as well. See id. at 456 , 101 S.Ct. at 2862 . Belton establishes a categorical rule for these cases based on a generalized policy rationale, see id. at 460 , 101 S.Ct. at 2864 ; therefore, it is wholly immaterial that a suspect has been handcuffed and arrested (and therefore cannot reach a weapon in the car) before his vehicle is searched. See United States v. Mitchell, 82 F.3d 146, 152 (7th Cir.), cert. denied, — U.S. -, 117 S.Ct. 155 , 136 L.Ed.2d 100 (1996); United States v. Willis, 37 F.3d 313, 317-18 (7th Cir.1994); United States v. Arango, 879 F.2d 1501, 1504-07 (7th Cir.1989), cert. denied, 493 U.S. 1069 , 110 S.Ct. 1111 , 107 L.Ed.2d 1019 (1990); United States v. Karlin, 852 F.2d 968, 970-72 (7th Cir.1988), cert. denied, 489 U.S. 1021 , 109 S.Ct. 1142 , 103 L.Ed.2d 202 (1989); United States v. Queen, 847 F.2d 346, 354 (7th Cir.1988) (citing cases).

I cannot concur with the court’s alternate rationale that the search was a valid inventory search. In my view, that rationale does not conform with the holding of the Supreme Court of the United States in Florida v. Wells, 495 U.S. 1 , 110 S.Ct. 1632 , 109 L.Ed.2d 1 (1990). Wells requires that “standardized criteria ... or established routine ... regulate the opening of containers found during inventory searches” because “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Id. at 4 , 110 S.Ct. at 1635 . Because “the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search[,]” the Supreme Court held that the search in that case was not sufficiently regulated to comport with the Fourth Amendment and that accordingly the evidence found had to be suppressed. Id at 4-5, 110 S.Ct. at 1635-36 . There is simply no way to read Illinois’ policy (see ante, at 1055) to comport with the law as delineated by the Supreme Court. The policy plainly does not set forth any criteria to guide an officer who is deciding whether to open a closed container found during an inventory search.

My colleagues come to the opposite conclusion by relying on United States v. Wilson, 938 F.2d.785 (7th Cir.1991), cert. denied, 502 U.S. 1062 , 112 S.Ct. 946 , 117 L.Ed.2d 115 (1992), but that case is irreparably flawed. See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment *1060 § 7.4(a), at 559 & n. 102 (3d ed.1996) (questioning Wilson). In Wilson a panel of this court, although recognizing that Wells requires a policy regarding the opening of closed containers, 938 F.2d at 788, held that Illinois’ policy provided sufficient guidance. The court reasoned that “the term ‘contents’ [which appears in the policy, see ante, at 1055] provides sufficient elucidation to satisfy the requirements of Wells.” Id. at 789. The panel added that, because officers in Illinois are to fill out a report listing the items found in the car,- officers in Illinois have received sufficient guidance to satisfy the requirements of Wells . In an age when the plain wording approach to interpretation seems to be so en vogue, some might think Wilson’s construction of the word “contents” particularly strained. Suffice it for me to say that Wilson is wrongly decided; there is no need to dwell long on the obvious reasons why. In brief, the Supreme Court in Wells instructed law enforcement agencies to have a policy regarding closed containers, although it gave the states a great deal of freedom with respect to the nature of that policy. Illinois may want its officers to open every container and, if Illinois wants that rule, current case law permits it to have it. The problem is that Illinois law enforcement authorities have never said that such an approach is the policy of the State. It is not enough for states merely to decree, as has Illinois, that items in a car must be listed on an inventory sheet. The states must have a policy with respect to opening closed containers. Illinois does not. * It is that simple.

Wilson should be overruled. In most situations, a holding of this court interpreting an opinion of the Supreme Court and applying that holding to an identifiable state policy ought to be followed under the doctrines of stare decisis and precedent. Here, however, those doctrines cannot control. The holding of the court in Wilson is so clearly wrong and so clearly nullifies the decision of the Supreme Court in Wells that our obligation to follow faithfully the Supreme Court’s direction requires that we reevaluate the law of the circuit. Of course, this case does not present the appropriate circumstance to overrule Wilson because the search here was permissible under Belton . But the majority should not extend the life of a case that is flawed to the core. I accordingly concur in the judgment of the court today, but respectfully decline to condone the departure from Supreme Court precedent that Wilson represents.

The majority’s citation to Trooper Davidson’s testimony clearly demonstrates this fact. See ante, at 1055-1056. The trooper said that he would leave locked items locked, but would open unlocked items. Yet that is the trooper's policy, not Illinois'. This is precisely what Wells addressed: Officers may not set their own ground rules. It is true that the state's policy can give some discretion to the officers, see Wells, 495 U.S. at 4 , 110 S.Ct. at 1635 , but it is not permissible, as the majority implies, for the officers to exercise unbridled discretion as the result of there being no policy whatsoever addressing the opening of closed containers. Indeed, in United States v. Kordosky, 909 F.2d 219 (7th Cir.1990), a case remanded by the Supreme Court in light of Wells , we remanded the case to the district court because the officer had only testified as to his practice and not to the practice of the police department. Here, Illinois has established neither standardized criteria nor a routine practice "with respect to the opening of closed containers encountered during an inventory search.” Wells, 495 U.S. at 4-5 , 110 S.Ct. at 1635-36 .