F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 13 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-5048
v. (N.D. Oklahoma)
STEVEN RAY WALKER, (D.C. No. 02-CR-44-EA)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
On March 7, 2002, Steven Ray Walker was indicted on one count for
possession of a firearm after a former felony conviction in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Mr. Walker moved to suppress evidence, including
the firearm and ammunition that the arresting officers found during a warrantless
search of his vehicle. Mr. Walker also moved to suppress statements that he made
following the vehicle search. The district court denied the motion. Mr. Walker
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
entered a conditional plea of guilty on November 14, 2002, reserving the right to
appeal the ruling on his motion to suppress. Mr. Walker now appeals the denial
of the motion. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm. **
I. BACKGROUND
The following facts in the record are undisputed. On December 27, 2001,
Officer Shellie Wood of the Tulsa Police Department observed Mr. Walker
standing in front of his car outside a suspected drug house and/or chop shop. Mr.
Walker started to get into his vehicle, then stopped and walked back into the
house after seeing Officer Wood. Shortly thereafter, Officer Wood noticed Mr.
Walker driving away in his vehicle. Officer Wood followed Mr. Walker for some
time and observed him making an unsafe lane change and a sudden entry into a
gas station. After stopping him for operating his vehicle in an unsafe manner,
Officer Wood arrested Mr. Walker for driving with a suspended license; Mr.
Walker does not challenge this arrest.
During the arrest, Officer Wood noticed that Mr. Walker smelled strongly
of marijuana. A criminal history check revealed that Mr. Walker had previously
After examining the briefs and appellate record, this panel has determined
**
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f). The case is therefore ordered submitted
without oral argument.
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been convicted of burglary and various weapon- and drug-related offenses. After
completing a search of the passenger compartment incident to arrest, Officer
Katherine Still, who had arrived on the scene to back up Officer Wood, executed
an inventory search of the vehicle to prepare the car for towing. Officer Still
discovered aluminum foil, some small plastic baggies, and a round of .223 caliber
ammunition in the trunk. Though the baggies and foil were empty, Officer Wood
believed based on her “experience of doing drug arrests” that the items were drug
paraphernalia. Rec. vol. III, at 85 (Hr’g Tr., dated Oct. 25, 2002). Officer Wood
then suggested searching the hood area since she had observed Mr. Walker
lingering there earlier in the night.
When she reached the front of the vehicle, Officer Wood noticed a hole in
the grill. A third officer on the scene opened the hood for Officer Wood, who
discovered a loaded Glock 9mm, semiautomatic pistol under the hood, behind the
headlight in the vicinity of the hole. After Officer Wood found the Glock, a
canine search of the car was performed. 1 The dog “hit” on Mr. Walker’s car “in
the back seat, in the trunk, the front of the car, and the two side doors.” Id. at 23.
II. DISCUSSION
“When reviewing a district court’s denial of a motion to suppress, we
1
It is not clear from the record at what point during the stop the officers
requested the dispatch of the canine unit; however, the timing of the request does
not affect our finding regarding probable cause, so we need not address it here.
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consider the totality of the circumstances and view the evidence in a light most
favorable to the government.” United States v. Long, 176 F.3d 1304, 1307 (10th
Cir. 1999). We accept the factual findings of the district court unless those
findings are clearly erroneous. Id. “The ultimate determination of
reasonableness under the Fourth Amendment is a question of law which we
review de novo.” United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.
1998).
Mr. Walker contends that the search of his trunk and hood area was
conducted in violation of his Fourth Amendment rights. He asks us to review: 1)
whether the trunk search of his vehicle was appropriate as an inventory search
pursuant to impound of a vehicle on private property; 2) whether probable cause
justified the search of the trunk and hood area; and 3) whether the evidence found
in the trunk and under the hood would have been “inevitably discovered” by the
canine search. Aplt’s Br. at 1. Mr. Walker’s appeal is limited to questions
concerning the physical evidence; he does not raise any issues with respect to the
statements he made following the search of his vehicle.
A. Inventory Search
Mr. Walker argues that the inventory search of his trunk was invalid
because the Tulsa Police Department lacked the authority to impound his car.
Police officers are generally authorized to impound parked or abandoned vehicles
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if 1) the impoundment is in accordance state or local law, or 2) the impoundment
is justified under the public safety exception of South Dakota v. Opperman, 428
U.S. 364 (1976). See, e.g., United States v. Rios, 88 F.3d 867, 870 (10th Cir.
1996) (upholding defendant’s motion to suppress because “the government failed
to show that the impoundment of the vehicle satisfied [state] law or the public
safety exception of South Dakota v. Opperman.”). The district court held that
while the search of Mr. Walker’s vehicle, including the trunk, was authorized as
an inventory search under these criteria, the search under the hood was not a valid
inventory search. We agree.
“An inventory search is a well-defined exception to the warrant
requirement of the Fourth Amendment, designed to effect three purposes:
protection of the owner’s property, protection of the police against claims of lost
or stolen property, and protection of the police from potential danger.” United
States v. Haro-Salcedo, 107 F.3d 769, 772 (10th Cir. 1997) (internal citations
omitted). An inventory search must be justified by administrative purposes and
“must not be a ruse for a general rummaging in order to discover incriminating
evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). Trunk searches are generally
treated as valid extensions of inventory searches. See United States v. Tueller,
No. 02-4015, 2003 WL 22481817, at *4 (10th Cir. Nov. 4, 2003) (noting “the
general reasonableness of conducting inventory searches of locked car trunks”);
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United States v. Martin, 566 F.2d 1143, 1145 (10th Cir. 1977) (holding that the
search of a locked trunk was a lawful inventory search).
The Tulsa Police Department (TPD) routinely conducts inventory searches
prior to impounding vehicles, in keeping with TPD Procedure 31-112H. See Rec.
vol. I, doc. 17, Ex. B (Government’s Response to Defendant’s Motion to
Suppress, filed Oct. 16, 2002). TPD Procedure 31-112G provides officers with
the authority to impound a vehicle if “the driver was arrested and the vehicle is
left unattended in a location that would constitute a traffic hazard or is highly
susceptible to damage or vandalism. This includes private property open to the
public when the offense the vehicle was initially stopped for occurred on a public
way.” Rec. vol. I, doc. 17, Ex. A, ¶ 1.b. When Mr. Walker was arrested, his car
was in the parking lot of a gas station. The TPD determined that the car needed
to be towed “[b]ecause it was blocking the pumps of the business and there was
really not a safe place to put it.” Rec. vol. III, at 16.
It is well-established that the police are authorized to impound vehicles
“[i]n the interests of public safety and as part of what the Court has called
‘community caretaking functions.’” Opperman, 428 U.S. at 368 (quoting Cady v.
Dombrowski, 413 U.S. 433, 441 (1973)); see also United States v. Johnson, 734
F.2d 503, 505 (10th Cir. 1984) (noting officers’ “appropriate exercise of the
‘community caretaking functions’” when defendant’s automobile was legally
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parked in a residential neighborhood, citing the inability of the defendant to drive
and “concern[s] about vandalism”). As Mr. Walker was alone at the time of his
arrest, there was no one immediately available to move his car to a safe location.
See Rec. vol. I, doc. 17, Ex. A, TPD Procedure 31-112G, ¶ 2.b (noting that
officers may allow the owner/operator of a vehicle to “[s]ummon a person of the
owner/operator’s choice to come to the scene, in a timely manner, to take custody
of the vehicle”); United States v. Agofsky, 20 F.3d 866, 873 (8th Cir. 1994)
(“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.”). Because he was arrested for driving with a
suspended license, it is clear that Mr. Walker was in no position to drive the car
home. Additionally, the vehicle was located in area where it could have inhibited
business or been subject to theft or vandalism.
With these facts in mind, it is reasonable to conclude that the TPD was
permissibly carrying out its “community caretaking functions” by impounding Mr.
Walker’s car. We therefore reject Mr. Walker’s argument regarding the validity
of the trunk search. We agree with the district court’s finding that the search
under the hood was not a valid inventory search because “[t]he United States has
not shown that Officers Wood and Still were searching the engine compartment
for personal property of Walker that needed to be accounted for, or that the
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officers were searching the vehicle to ensure their own safety.” Rec. vol. I, doc.
21, at 6 (Dist. Ct. Order, filed Oct. 29, 2002).
B. Probable Cause
A warrantless search of a vehicle is valid if it is based on probable cause.
See Carroll v. United States, 267 U.S. 132, 149 (1925). “Probable cause to search
a vehicle is established if, under the totality of the circumstances there is a fair
probability that the car contains contraband or evidence.” United States v.
Nielsen, 9 F.3d 1487, 1489-90 (10th Cir. 1993) (internal quotation marks
omitted).
The district court determined that the TPD had probable cause to search
Mr. Walker’s vehicle, including the hood area, based on the observations and
knowledge of Officer Wood. The factors contributing to this finding included:
Officer Wood’s knowledge of the criminal activities, including drug
activities, that had been associated with the house outside of which
Walker was observed by Officer Wood; Walker’s suspicious behavior
in standing and lingering in front of his vehicle before entering the
vehicle; Walker’s hesitation to enter his vehicle once he noticed Officer
Wood’s presence; Walker’s quick and sudden departure from the house
location; Walker’s sudden and unsafe lane change; Walker’s decision
to abruptly pull into a gas station shortly after Officer Wood observed
him getting gas at another station; the smell of marijuana that was on
Walker and in the interior of his vehicle; the damaged grill with a hole
in the side; and the criminal history and background of Walker.
Rec. vol. I, doc. 21, at 7.
Mr. Walker argues that there is no evidence to support the district court’s
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finding that the smell of marijuana was detected in his vehicle. He contends that,
at most, the smell of marijuana was detectable on his person and that “there was
no nexus to the car.” Aplt’s Br. at 16. Contrary to the finding of the district
court, Officer Wood’s testimony suggests that the smell of marijuana was limited
to Mr. Walker’s person. See Rec. vol. III, at 14-15 (“Once I got him out and I
was close to him, I could smell an odor of what I thought was marijuana on his
person.”) (emphasis added); id. at 24 (“I smelled marijuana on him, but I didn’t
find any in the car itself.”) (emphasis added). However, as discussed below, the
totality of the circumstances support a finding of probable cause regardless of the
extent of the smell, so any error regarding whether the car smelled of marijuana is
harmless.
We emphasize that our finding of probable cause is based on the existence
of many factors, including the presence of ammunition and drug paraphernalia in
the trunk, evidence of a hole or compartment in the grill, Officer’s Wood
knowledge of Mr. Walker’s criminal history, the fact that Officer Wood observed
Mr. Walker lingering near the hood of his car earlier in the evening, Officer
Wood’s training and knowledge concerning the practice of hiding contraband
under the hoods of cars, and Mr. Walker’s evasive behavior.
It is true that evasiveness or nervousness, the smell of marijuana, or
knowledge of a past conviction does not necessarily support a finding of probable
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cause in the absence of other evidence. See, e.g., United States v. Wald, 216 F.3d
1222, 1227 (10th Cir. 2000) (noting that we have “repeatedly recognized” that
evidence of nervousness around law enforcement officers “is of limited
significance”); United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995) (“If
an officer smells marijuana in the passenger compartment of a vehicle, he has
probable cause to search the passenger compartment,” but not the entire vehicle.);
Nielsen, 9 F.3d at 1491 (holding that the “smell of burnt marijuana,” combined
with “[d]efendant’s nervousness and a fifteen year old misdemeanor drug
conviction” did not give officers probable cause to search the trunk of a vehicle).
Certain additional factors in this case, however, lead us to conclude that the
totality of the circumstances do support a finding of probable cause.
Significantly, the officers conducted the search of the hood area after
finding a round of ammunition and suspected “drug paraphernalia,” i.e.,
aluminum foil and small plastic baggies, in the trunk of the car pursuant to a valid
inventory search. See Michigan v. Thomas, 458 U.S. 259, 261-62 (1982)
(suggesting that discovery of contraband during a valid inventory search can give
police officers probable cause to search the rest of the car). Moreover, Officer
Wood noticed a suspicious hole in the grill of Mr. Walker’s car, which, combined
with her knowledge of the practice of hiding contraband under the hoods of cars
and her observation of Mr. Walker lingering near the hood earlier that night, led
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her to believe that Mr. Walker might be concealing contraband in the hole. See
United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) (“Evidence of a
hidden compartment can contribute to a finding of probable cause to search.”).
Keeping in mind the ammunition and other materials found in the trunk, the
hole in the grill, the fact that Mr. Walker was observed lingering near the hood of
his car, Officer Wood’s knowledge of Mr. Walker’s criminal history, and the
other factors relied upon by the district court, we hold that the totality of the
circumstances in this case established probable cause to search under the hood of
Mr. Walker’s vehicle.
C. Inevitable Discovery
The district court held that even if the search of the trunk and/or hood area
was illegal, the evidence is admissible under the doctrine of inevitable discovery
because probable cause would have been established after the drug dog hit on Mr.
Walker’s car. Because we have already found that the search was based on
probable cause, we need not address this issue.
Accordingly, the district court’s denial of Mr. Walker’s motion to suppress
is AFFIRMED.
Entered for the Court,
Robert H. Henry
Circuit Judge
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