United States v. John Arrocha

United States Court of Appeals

For the Eighth Circuit

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No. 12-2853

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

John L. Arrocha

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: February 15, 2013

Filed: May 8, 2013

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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

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LOKEN, Circuit Judge.

John Arrocha was charged with being a felon in possession of a handgun seized

during a warrantless search of his vehicle, and body armor seized in a subsequent

warrant search of his home. See 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (a)(7),

931(a)(1), and 921(a)(35). He entered a conditional plea of guilty to both charges

after the district court1 denied his motion to suppress the handgun. Arrocha appeals,

arguing the court erred in concluding the handgun was seized during a valid inventory

search of his vehicle. Reviewing the factual findings underlying the suppression

ruling for clear error, and the court’s legal conclusions de novo, we affirm. United

States v. Garreau, 658 F.3d 854, 857 (8th Cir. 2011) (standard of review).

I.

Liberty, Missouri, Police Officers Dan King and Wendi Mason and Arrocha

testified at the suppression hearing. We summarize their testimony consistent with

the district court’s findings of fact. On June 14, 2010, King and his partner and

Mason were separately dispatched to a local QuikTrip after several callers reported

a disturbance involving a black male, a sports utility vehicle (SUV), and a gun.

Arriving first, Officer Mason approached a man -- later identified as Arrocha --

matching the reported description and standing next to a Chevrolet Tahoe SUV.

Arrocha told Officer Mason he was upset after arguing with QuikTrip employees who

he believed discriminated against him when he attempted to pay for a drink and they

refused to take his money. As Officer Mason talked with Arrocha, Officer King

arrived with his partner, who soon did a computer check that revealed an active

Kansas City warrant for Arrocha’s arrest on a harassment charge. Arrocha was

arrested based on the warrant, handcuffed, and patted down for weapons.

The officers then turned their attention to the SUV, which was properly parked

in the QuikTrip parking lot, locked but with the windows down. Officer Mason

testified that Arrocha told her he had the keys and asked her to roll up the windows.

As she proceeded to do so, Officer King said the vehicle would be impounded and

1

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri, adopting the report and recommendation of the Honorable

Robert E. Larsen, United States Magistrate Judge for the Western District of

Missouri.

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towed and told Officer Mason to perform an inventory search. Officer Mason

unlocked the SUV and, during her search, found a handgun under a rag in the map

compartment of the driver’s side door.

At the suppression hearing, the government also introduced Procedural

Instruction 027, part of the Liberty Police Department Operations Manual,

establishing “guidelines and procedures” for the towing of abandoned vehicles. It

provides that any unattended vehicle may be “removed . . . from public or private

property as provided in section 304.155 and 304.157” of the Missouri Revised

Statutes, two sections of the Traffic Regulations Chapter. Section 304.155 prescribes

when local police may authorize a towing company to remove an abandoned vehicle

on public property. It expressly provides that a vehicle may be towed if the person

operating the vehicle is arrested and taken into custody and is unable to arrange for

the vehicle’s timely removal. § 304.155.1(5). Section 304.157 prescribes when a

vehicle abandoned on private property may be towed “at the request of the person in

possession of the real property.” Consistent with that focus, § 304.157 does not have

a subpart dealing with custodial arrests. However, Section IV.B. of the Liberty

Procedural Instruction provides that its procedures generally apply “[s]ubsequent to

arrests . . . if the suspect’s vehicle is to be towed from the scene of the arrest.” And

Section IV.E. provides that a police officer “may respond to tow a vehicle or vessel

from private property [if] . . . (2) In the judgment of the officer, the abandoned

property . . . unreasonably interferes with the use of the real property by the person

in possession,” a provision consistent with Mo. Rev. Stat. § 304.157.1(2).

Officer King testified that he made the decision to tow the SUV because

Arrocha was under arrest and would not “give us the name of somebody we could call

to come and pick up the vehicle.” “He was very difficult. We had no other choice

but to tow the vehicle.” On cross examination, when defense counsel noted that the

SUV was properly parked on private property, Officer King further explained:

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[The SUV was] parked directly in front of QuikTrip. They have a lot

[of] foot traffic, very busy. We have an agreement with QuikTrip that --

to tow vehicles when we arrest somebody. So, at that point that is when

we decided to tow it and that’s when the inventory was conducted.

Later, on recross, Officer King reiterated:

Q. And the vehicle . . . you’re saying even though it’s parked in a space,

it’s obstructing QuikTrip’s business?

A. Yes. If nobody can pick it up and it’s left unattended in a parking

space that’s -- they have limited parking and they have a high volume of

customers in and out of that QuikTrip, so, yes . . . it was a judgment call

on our part to tow it because we believed it was an interference with

their business.

Officer Mason likewise testified, “We would not normally leave a vehicle in the

parking lot of the QuikTrip if we were arresting somebody out of it.”

Officers King and Mason both testified that they gave Arrocha the opportunity

to give them the name of someone who could come pick up the SUV. Arrocha told

them it was his father’s vehicle and there was no one to come pick it up. Arrocha

testified he was never asked if someone could come pick up the vehicle and, if he had

been asked, there were “plenty” of family and friends who would have picked up the

car, rather than have it impounded. Regarding what it considered a “principal fact

controversy,” the district court found:

Consistent with the Magistrate’s report, I conclude there was some

conversation on this point, and that [Arrocha], unaware of the

consequences, did not press for family assistance. He preferred to have

the car locked and left in place.

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The district court denied the motion to suppress, concluding that impounding the

SUV was consistent with applicable Missouri statutes and Liberty Police Department

policy because, in the judgment of Officer King, abandoning the car in QuikTrip’s

busy parking lot would unreasonably interfere with the property owner’s possession.

II.

In South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976), the Supreme

Court noted two common police practices. First, “automobiles are frequently taken

into police custody” in the interests of public safety and “community caretaking

functions.” Second, “[w]hen vehicles are impounded, local police departments

generally follow a routine practice of securing and inventorying the automobiles’

contents.” The Court concluded that, properly implemented, these practices do not

run afoul of the Fourth Amendment’s search warrant requirement. Id. at 376. This

Fourth Amendment ruling has come to be known as the “lawful inventory search”

exception to the warrant requirement because, as in this case, it is the search that

yields evidence that a criminal defendant later seeks to suppress. See, e.g., Garreau,

658 F.3d at 857 (“An inventory search is reasonable and constitutional if it is

conducted according to standardized police procedures.”). However, the doctrine in

fact encompasses distinct police actions -- the decision to impound or tow a vehicle,

the decision to search the vehicle, and the manner and scope of the search. Here,

Arrocha does not challenge the Liberty Police Department’s written policy that all

automobiles that are to be towed must be searched in a prescribed manner, nor does

he contend that Officer Mason’s search that uncovered the firearm exceeded that

policy. Rather, he argues that Officer King’s decision to tow the SUV violated the

Fourth Amendment.

In Colorado v. Bertine, 479 U.S. 367, 375 (1987), a decision dealing primarily

with an inventory search of a closed container, the Supreme Court also addressed the

question whether the inventory search was unconstitutional because the police

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department regulations gave officers “discretion to choose between impounding

[defendant’s] van and parking and locking it in a public parking space.” The Fourth

Amendment permits exercise of such discretion, the Court concluded, “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. We interpreted and applied

that ruling in United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004):

Some degree of “standardized criteria” or “established routine” must

regulate these police actions, which may be conducted without the

safeguards of a warrant or probable cause, to ensure that impoundments

and inventory searches are not merely a ruse for general rummaging in

order to discover incriminating evidence.

The requirement that discretion be fettered, however, has never

meant that a decision to impound must be made in a “totally

mechanical” fashion. . . . It is not feasible for a police department to

develop a policy that provides clear-cut guidance in every potential

impoundment situation . . . . [T]estimony can be sufficient to establish

police [impoundment] procedures. . . . So long as the officer’s residual

judgment is exercised based on legitimate concerns related to the

purposes of an impoundment, his decision to impound a particular

vehicle does not run afoul of the Constitution.

(Citations omitted); accord United States v. Frasher, 632 F.3d 450, 454 (8th Cir.),

cert. denied, 132 S. Ct. 278 (2011); United States v. Kimhong Thi Le, 474 F.3d 511,

514-15 (8th Cir.), cert. denied, 550 U.S. 969 (2007); United States v. Betterton, 417

F.3d 826, 830-31 (8th Cir. 2005).

We agree with the district court that, although Officer King exercised some

discretion in deciding that Arrocha’s SUV must be towed, he acted within the degree

of “standardized criteria” or “established routine” that our prior towing cases require.

Arrocha argues that the post-arrest authority to tow an abandoned vehicle in

§ 304.155.1(5) cannot justify Officer King’s decision because that statute only applies

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to vehicles on public property, not on private property such as the QuikTrip parking

lot. But § IV.B. of Procedural Instruction 027 authorizes post-arrest towing of

vehicles abandoned on private party, and § IV.E. sets forth situations where such a

tow will be in the interests of public safety, including when the officer concludes that

“the abandoned property . . . unreasonably interferes with the use of the real property

by the person in possession.”

Arrocha further argues that the authority to tow from private property in

§ IV.E. of Procedural Instruction 027 cannot justify Officer King’s decision because

Arrocha’s SUV “was legally parked in a marked parking space” and “did not interfere

with the use of the real property by Quik-Trip.” We disagree. “Police may take

protective custody of a vehicle when they have arrested its occupants, even if it is

lawfully parked and poses no public safety hazard.” United States v. Martin, 982

F.2d 1236, 1240 (8th Cir. 1993), citing Bertine. Here, although Officer King did not

consult QuikTrip employees before towing Arrocha’s SUV, Officers King and Mason

testified that the police had an informal agreement with QuikTrip that vehicles

abandoned in its busy parking lot because of an arrest would be towed. This is the

type of unwritten towing policy that suffices as standardized police procedure in the

absence of evidence that an officer’s exercise of this discretion in a particular case

was “merely a ruse for general rummaging in order to discover incriminating

evidence.” Petty, 367 F.3d at 1012. Arrocha asserts on appeal that the police were

merely rummaging, but the district court adopted the magistrate judge’s express

finding of “no evidence that the decision to tow [Arrocaha’s] car was a ruse for

general rummaging in order to discover incriminating evidence.” We agree.

Although the disturbance calls gave the officers reason to suspect there might be a

gun in Arrocha’s car, when there is a valid reason to impound a vehicle, “[t]he

presence of an investigative motive does not invalidate an otherwise valid inventory

search.” United States v. Garner, 181 F.3d 988, 991 (8th Cir. 1999), cert. denied, 528

U.S. 1119 (2000).

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Finally, Arrocha complains that the “officers did not allow Mr. Arrocha to

contact anyone and therefore violated the Liberty tow policy.” But this is not a

Fourth Amendment issue. “Nothing in the Fourth Amendment requires a police

department to allow an arrested person to arrange for another person to pick up his

car to avoid impoundment and inventory.” United States v. Agofsky, 20 F.3d 866,

873 (8th Cir.) (citing Bertine, 479 U.S. at 372), cert. denied, 513 U.S. 909, 949

(1994). “The central question in evaluating the propriety of an inventory search is

whether, in the totality of the circumstances, the search was reasonable.” Frasher,

632 F.3d at 454. Here, we agree with the district court that Officer King’s decision

to tow the SUV was a reasonable exercise of discretion that was sufficiently

“fettered” by standardized police procedures.2

In a supplemental pro se brief, Arrocha raised additional issues requiring only

brief review. First, he complains that his arrest was based on a “non-extraditable

Municipal warrant” and therefore invalid. This issue was not raised in the district

court and is based on an unauthenticated document that is not part of the record on

appeal. Second, he asserts that Officer Mason seized the SUV keys during an

unlawful patdown. This assertion is contrary to the district court’s finding that

Arrocha told Mason the keys were in his pocket and asked her to roll up the SUV

windows. Third, he argues there was no consent to search. However, the inventory

search was not upheld based on consent. Finally, he argues the police failed to give

him Miranda warnings following his custodial arrest, but he fails to identify a post-

arrest statement material to the inventory search, which is the only issue on appeal.

For these reasons, we affirm the judgment of the district court.

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2

Arrocha also argues that Arizona v. Gant, 556 U.S. 332 (2009), calls into

question the validity of the inventory search exception. We have previously held that

Gant does not apply to an inventory search. See Frasher, 632 F.3d at 455.

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