[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11666 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 29, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00324-WSD-RGV-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
PHILLIP BRIAN JEFFERSON,
a.k.a. Phillip Jefferson,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 29, 2011)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Phillip Jefferson appeals his conviction for possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The only
issue on appeal is whether the evidence found in Jefferson’s car after a traffic
stop– including cocaine and a gun– should have been suppressed. The government
argues that the search was properly conducted during a routine inventory search
after the car was deemed “abandoned.” Jefferson argues that the vehicle was not
“voluntarily” abandoned because he left the car while fleeing to avoid the
excessive use of force by the police officer.
The facts elicited at the suppression hearing indicated that Jefferson’s
vehicle was stopped by Richard Barthelemy, an officer with the Atlanta Police
Department (“APD”), for speeding and driving with an expired tag. During the
traffic stop, an altercation occurred between Jefferson and Barthelemy, and
Jefferson fled the scene. Following Jefferson’s flight, Barthelemy conducted an
inventory search of the vehicle pursuant to an APD policy directing inventory
searches to be performed on vehicles with expired tags abandoned on city streets.
The search revealed the cocaine for possession of which Jefferson was convicted.
On appeal, Jefferson argues that he did not abandon the vehicle. Rather, he
argues that he had to flee due to Barthelemy’s unreasonable use of force.
Rulings on motions to suppress involve mixed questions of fact and law.
2
United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir.1994). Abandonment
involves a factual issue which is generally reviewed under a clearly erroneous
standard. United States v. McKennon, 814 F.2d 153 (11th Cir. 1987).
The government bears the burden of proving abandonment, and seizure of
evidence may not be contested as violative of the Fourth Amendment if the
evidence has been abandoned. United States v. Cofield, 272 F.3d 1303, 1306
(11th Cir. 2001). Evidence may be deemed abandoned upon an individual’s
relinquishment of possession or control over it. Id. at 1306-07. The critical
inquiry in determining whether property has been abandoned is “whether the
person prejudiced by the search . . . voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question so that he could no longer
retain a reasonable expectation of privacy with regard to it at the time of the
search.” Ramos, 12 F.3d at 1022 (quotations and citations omitted) (emphasis in
original).
Although abandonment that is merely the product of police misconduct
may not be voluntary, United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir.
1982), “[p]olice pursuit or the existence of a police investigation does not of itself
render abandonment involuntary.” United States v. Colbert, 474 F.2d 174 (5th
Cir. 1973). Here, the magistrate judge found that Jefferson did not retain a
3
reasonable expectation of privacy in his vehicle because his flight from the scene
was not prompted by an excessive use of force by the police officer. Rather,
Jefferson’s abandonment was deemed voluntary, even crediting Jefferson’s
version of events. The magistrate found that Barthelemy was authorized to: (1)
order Jefferson to exit the vehicle; (2) take action to physically remove Jefferson
when he failed to comply; and (3) use pepper spray when it became obvious that
Jefferson was refusing to comply with Barthelemy’s orders and was physically
resisting. Further, the magistrate found that Jefferson had initiated the physical
confrontation by pushing Barthelemy’s arm out of the car window, and had
continued physically resisting during the struggle to get out of the car. On this
record, we find no clear error in the district court’s finding that Jefferson
abandoned his vehicle voluntarily, and not as a result of a police officer’s
excessive use of force.
We have held that police officers may carry out warrantless inventory
searches of vehicles, provided that the search is conducted “pursuant to explicit
and comprehensive procedures,” such that officers have guidance in performing a
task that is not an investigatory technique, but instead aims to protect individuals’
possessions. United States v. Williams, 936 F.2d 1243, 1248 (11th Cir. 1991).
The government must establish, first, that the officers had the authority to
4
impound the defendant’s vehicle, and second, that the officers complied with
departmental policy in conducting the search. Id. The reasonableness of an
inventory search depends on the particular facts and circumstances. United States
v. Laing, 708 F.2d 1568, 1571 (11th Cir. 1983).
Here, the inventory search of Jefferson’s vehicle was conducted pursuant to
an APD policy allowing for the impounding and inventorying of vehicles
abandoned on city streets with expired tags. Accordingly, because Jefferson’s
abandonment of his vehicle was properly deemed voluntary, we affirm his
conviction.
AFFIRMED.
5