NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4618
_____________
UNITED STATES OF AMERICA,
v.
RICHARD VALENTINE,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cr-00169-001)
District Judge: Hon. Jan E. Dubois
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 10, 2011
Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.
(Filed: November 14, 2011)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Richard Valentine pled guilty in the United States District Court for the Eastern
District of Pennsylvania to drug and firearm offenses. Pursuant to his plea agreement,
Valentine was permitted to appeal the District Court’s ruling denying his pre-trial motion
to suppress, and on appeal, does challenge the denial of his suppression motion. Because
Valentine waived the arguments he now advances to challenge the District Court’s ruling,
we will affirm.
I. Background
A. The Arrest
On November 12, 2008, Officer Joseph Gansky of the Bensalem Police
Department (“BPD”) was on patrol in Bensalem Township, Pennsylvania. While on
patrol, he followed a car over the border into Bristol Township, and when he turned
around to return to Bensalem Township, he saw a Honda Civic with dark-tinted windows
pass him at a high rate of speed. He began to follow the car. Upon checking its
registration, he learned that it was registered to Valentine. When Gansky pulled close
behind the Honda, the driver made a quick left hand turn and drove away. Though
Gansky found this activity to be suspicious, he did not pursue the car because he was still
in Bristol Township, which was outside of his jurisdiction.
Less than five minutes later, when resuming patrol in Bensalem Township,
Gansky observed the same Honda Civic pass in front of him, so he again pulled his patrol
car behind it. Because he suspected that the car’s tinted windows were unlawfully dark,
and because he had previously observed the driver engage in suspicious activity, Gansky
initiated a traffic stop by activating his overhead lights. Both cars turned into a parking
lot in a shopping center. Valentine, who was alone in the Honda, told Gansky that he was
meeting a friend at a market in the shopping center and planned to pick up a few items at
2
the market. The market, however, was closed. Valentine also told Gansky that he had a
suspended driver’s license, no valid insurance, and no registration for the car, but he did
provide Gansky with an identification card. Gansky then ran a background check on
Valentine, which indicated that he was a known offender with reports of weapons
violations, domestic violence, and harassment. Gansky also checked Valentine’s
criminal history over the police radio and was told that Valentine had arrests for several
narcotics violations and stolen firearms violations, and that he was known to flee.
As additional BPD officers began arriving on the scene, Gansky contacted his
supervisor, Corporal George Price, and asked Price for permission to tow the Honda.
Price granted permission after Gansky informed him that Valentine had a suspended
license, no insurance, and no registration. Gansky then told Valentine that his vehicle
would be towed and asked him to step out of the car so Gansky could perform an
inventory search. Valentine complied.
Gansky began the search and, in the front passenger compartment, found two
bottles of pills that Valentine admitted were Percocet. 1 Gansky then released a lever on
the driver’s side door to open the trunk, but, when the trunk opened, Valentine ran
towards the trunk and slammed it shut. Gansky testified that when he advised Valentine
that he needed to search the trunk pursuant to BPD inventory procedures, Valentine
responded, “You can have the car, you can arrest me but you cannot search that trunk.”
(App. at 111.) As other officers moved Valentine away from the trunk, Gansky re-
1
Percocet is a brand name for a pill that contains oxycodone.
3
opened it and uncovered two bags of a white powdery substance, a black digital scale
with a light powder residue on it, a loaded weapon, and a loaded magazine. Valentine
was then placed under arrest.
B. Motion to Suppress
On March 17, 2009, Valentine was charged with possession with intent to
distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), possession of a firearm in furtherance of a drug trafficking offense, in violation
of 18 U.S.C. § 924(c)(1), possession of oxycodone, in violation of 21 U.S.C. § 844(a), 2
and possession of a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1). He responded by filing a motion to suppress the
physical evidence seized from his vehicle and the statements he made on the night of the
arrest.
At the suppression hearing on July 31, 2009, Price and Gansky testified regarding
BPD’s policies and procedures on vehicle impoundment and inventory searches.
Regarding impoundment, Price read a document entitled “Impound of Motor Vehicles,”
from BPD’s field training manual. That document, given to each BPD officer, provides:
When impounding a motor vehicle whether it be for a vehicle code
violation or an arrest, an inventory of the vehicle must be completed and an
inventory sheet must be filled out. On this inventory sheet be sure to list
any damages to the vehicle. If you feel that a vehicle needs to be towed due
2
While Valentine’s plea agreement references 18 U.S.C. § 844(a), and the
judgment sentencing Valentine references 21 U.S.C. § 842(a), the indictment references
21 U.S.C. § 844(a). The parties are in accord in their respective briefs that possession of
oxycodone is a violation of 21 U.S.C. § 844(a). We will therefore reference that statute
for the purposes of this appeal.
4
to vehicle code violation [sic] you need to first get your sergeant’s
approval. Vehicle code infractions that may constitute impounding are: no
insurance, no licensed drivers in the vehicle, or unregistered vehicle [sic].
(App. at 185.) Price further testified that, as a supervisor of a squad working on patrol,
he must authorize any request to tow a vehicle. Price also stated that if a driver has no
license, no insurance, and there is no licensed driver available, it was the practice of the
BPD to authorize a tow. Gansky testified that it was his practice to seek his supervisor’s
permission to tow a vehicle if its driver had no valid insurance and no valid driver’s
license and there were no other licensed drivers in the car.
Both Gansky and Price also testified regarding BPD inventory search procedures.
Price said that the purpose of an inventory search is to note any damage to a vehicle and
to return or record any items of value. He went on to say that the only limitation on
police officers in conducting an inventory search is that they cannot break into a locked
compartment which can only be opened by force. On cross-examination, Price
acknowledged that the document discussing inventory and impoundment does not
indicate how to properly conduct an inventory search, and that Gansky “could have
[conducted the inventory search in] any way he felt appropriate at the time.” (App. at
69.) Gansky testified, however, that, as part of his training, he was taught how to conduct
an inventory search and would “basically just [conduct] a search of the vehicle …
looking for items of value [or] damages to the vehicle and then noting it on a[n] inventory
log.” (App. at 92.) Gansky further testified that an inventory search would allow him to
go into a trunk unless it is locked and can only be opened by force.
5
After the suppression hearing, on August 6, 2009, Valentine filed a memorandum
of law in support of the motion to suppress. In that memorandum, Valentine argued that
Gansky conducted an unlawful stop because he did not have reasonable suspicion of a
window-tint violation. He further contended that the impoundment and inventory search
of the car were unlawful because there was no written policy regarding the scope of an
inventory search and because the decision to impound and inventory was based on an
improper investigatory motive.
The District Court denied the motion to suppress. First, the Court concluded that
the traffic stop was lawful because Gansky did have reasonable suspicion that the
vehicle’s windows were tinted so darkly as to be in violation of Pennsylvania law.
Second, the Court concluded that, although Gansky did have an investigatory motive, his
decision, and Price’s authorization, to impound the Honda was reasonable because it was
done in accordance with BPD policy and Price credibly “testified that his approval of
Officer Gansky’s impound request was based solely on the fact that Valentine was
stopped while driving on a suspended license and without insurance.” (App. at 23.)
After the denial of his motion, Valentine entered a plea of guilty to all counts in
the indictment. The plea agreement permitted Valentine to file a direct appeal of the
District Court’s order denying the suppression motion. He was sentenced to 240 months’
imprisonment and eight years’ supervised release.
This timely appeal of the suppression ruling followed.
6
II. Discussion 3
On appeal, Valentine argues that Gansky’s failure to obtain authorization for the
impoundment of the vehicle from a sergeant rendered the impoundment unreasonable and
a violation of the Fourth Amendment, and that Gansky’s search of the trunk went beyond
the scope of the written inventory policy, 4 thus rendering the trunk search unreasonable
and a violation of the Fourth Amendment. However, Valentine acknowledges in his brief
that his counsel did not raise in the District Court either of those two arguments.
Ordinarily, we review “the District Court’s denial of a motion to suppress for clear
error as to the underlying factual findings and exercise[] plenary review of the District
Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336
(3d Cir. 2002). However, the government argues that Valentine has waived the
arguments that he now presses on appeal. Valentine contends that we should still review
those arguments for plain error, and, in support of that contention, he cites Federal Rule
of Criminal Procedure 52(b), which provides that “[a] plain error that affects substantial
rights may be considered even though it was not brought to the court’s attention.” Fed.
R. Crim. P. 52(b).
“[I]t is well settled that arguments asserted for the first time on appeal are deemed
to be waived and consequently are not susceptible to review in this Court absent
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
4
For the purposes of this issue on appeal, Valentine’s reference to the written
inventory policy appears to be to the one paragraph document entitled “Impound of
Motor Vehicles.”
7
exceptional circumstances.” United States v. Rose, 538 F.3d 175, 179 (3d Cir. 2008)
(quoting United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005)). Federal Rule of
Criminal Procedure 12(b)(3)(C) specifically states that a motion to suppress evidence
must be raised before trial, Fed. R. Crim. P. 12(b)(3)(C), and Rule 12(c) permits a court
to “set a deadline for the parties to make” such a motion. Fed. R. Crim. P. 12(c). Absent
good cause, Rule 12(e) provides that “[a] party waives any Rule 12(b)(3) defense,
objection, or request not raised by the deadline the court sets .” Fed. R. Crim. P. 12(e);
see Rose, 538 F.3d at 177 (“In our Court, suppression issues raised for the first time on
appeal are waived absent good cause under Rule of Criminal Procedure 12.”); see also
United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 2010) (“[W]hen a party seeks
reversal of a suppression ruling on appeal, any arguments not raised in the district court
are waived absent a showing of good cause… .” (citing Rose)).
We will not consider Valentine’s new arguments. Contrary to his claimed right to
plain error review, the waiver provision of Rule 12 “trumps Rule 52(b)’s plain error
standard in the context of motions to suppress.” Rose, 538 F.3d at 176. Thus,
Valentine’s reliance on Rule 52(b) is misguided. Moreover, Valentine has not
demonstrated good cause for delaying his arguments until appeal. 5 Accordingly, we
5
The only explanation made by Valentine in his brief that could be construed as
an argument for good cause is his statement that his attorney for this appeal is different
than his attorney at the suppression hearing, whose motion to withdraw was granted after
Valentine filed a timely notice of appeal. But the decision to proceed with a different
attorney on appeal does not, in itself, demonstrate “good cause.” Cf. Rose, 538 F.3d at
184-85 (holding that an appellant who offered no explanation of why he did not raise his
issues on appeal at his suppression hearing, other than the fact that he was proceeding pro
se, did not demonstrate “good cause”).
8
conclude that, under Rule 12 of the Federal Rules of Criminal Procedure, Valentine has
waived the only issues he now raises on appeal.
III. Conclusion
For the foregoing reasons, we will affirm.
9