United States v. Mundy

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 07-4112
_____________

UNITED STATES OF AMERICA

v.

ERIC WAYNE MUNDY,
a/k/a
BOOB,
a/k/a
JAMES FRAZIER

Eric Wayne Mundy,

Appellant
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Criminal No. 06-cr-00540-1)
District Judge: Honorable J. Curtis Joyner

Argued January 8, 2009

Before: CHAGARES, HARDIMAN, Circuit Judges, and
ELLIS * , District Judge.
____________

(Filed: September 14, 2010)

*
The Honorable Thomas Selby Ellis III, Senior District
Judge for the United States District Court for the Eastern District
of Virginia, sitting by designation.
SARAH S. GANNETT (argued)
Assistant Federal Defender
DAVID L. MCCOLGIN
Assistant Federal Defender
Supervising Appellate Attorney
MAUREEN KEARNEY ROWLEY
Chief Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106
Counsel for Appellant

PATRICK L. MEEHAN
United States Attorney
ROBERT A. ZAUZMER
FRANCIS C. BARBIERI, JR., ESQ.
MARY KAY COSTELLO, ESQ. (argued)
Assistant United States Attorney
Chief of Appeals
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee

____________

OPINION
____________

CHAGARES, Circuit Judge.

Eric Wayne Mundy appeals his conviction and sentence for
possession of 500 grams or more of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and for
possession with intent to distribute 500 grams or more of cocaine
in a protected area, in violation of 21 U.S.C. § 860(a). Mundy
contends that the District Court erroneously admitted evidence that
was seized during an inventory search of his car, in violation of the
Fourth Amendment. He also challenges the District Court’s
application of a United States Sentencing Guidelines (“U.S.S.G.”)
enhancement for possession of a controlled substance in a
protected location with intent to distribute. We will affirm.

I.

On August 3, 2004, Mundy was stopped by two
Philadelphia Highway Patrol officers, James Chabot and George
Soto, for making a right turn without using a turn signal and for
excessively dark window tinting, in apparent violation of the motor
vehicle code. The officers stopped Mundy at 18th Street and
Hunting Park Avenue in Philadelphia, Pennsylvania, less than
1,000 feet from Gratz High School. The officers approached the
vehicle and directed Mundy to lower the driver’s side window.
Mundy was unable to do so, and the officers instructed him to open
his door instead, which he did. Officer Chabot asked Mundy for
his license, insurance card, and registration. After several minutes
of searching, he was unable to locate documentation for the
vehicle. The officers then took steps to determine whether the
vehicle was registered. First, the officers ran a check on the
vehicle’s public Vehicle Identification Number, and a check of the
license plate number, neither of which produced a record of an
owner. The officers then contacted the Bureau of Motor Vehicles
(the “BMV”). The BMV reported no registration information for
Mundy’s vehicle. The officers directed Mundy to exit his vehicle,
and they placed him in their patrol car before radioing for a tow
truck.

Officer Chabot began to search the interior of the vehicle
and, using a key Mundy provided, opened the locked trunk. The
only items in the trunk were a tool kit and a gray plastic bag
containing a closed shoebox. Officer Chabot removed the shoebox
from the plastic bag and proceeded to open it. Inside, he found a
brown paper lunch bag and two clear plastic zip-locked bags filled
with a substance that appeared to be cocaine. Officer Chabot
opened the paper lunch bag and found four more clear plastic zip-
locked bags, also containing a substance that appeared to be
cocaine. Officer Chabot replaced the items, closed the trunk of the
vehicle, placed Mundy under arrest, and recovered $1,107 in cash
from his person. The officers then notified narcotics agents. They
did not complete a Towing Report listing the items found during

3
the search.
Officer Trappler of the Narcotics Field Unit was assigned to
the investigation. He obtained and executed a search and seizure
warrant for Mundy’s vehicle and recovered from the trunk, among
other things, six clear plastic bags containing a substance suspected
to be cocaine. Officer Trappler also recovered from the interior of
the vehicle two plastic jars, a small amount of marijuana, and
documents. The Philadelphia Chemical Laboratory tested the
substance found in the clear plastic bags and confirmed that the
substance was cocaine. The cocaine weighed 746.9 grams.

Mundy was charged with one count of possession with
intent to distribute 500 grams or more of cocaine, 21 U.S.C. §
841(a)(1), (b)(1)(B), and one count of possession with intent to
distribute cocaine within 1,000 feet of a school zone, 21 U.S.C. §
860(a). Mundy moved to suppress the evidence found during the
search, arguing that both the stop and the ensuing search violated
his rights under the Fourth Amendment.1 At the hearing on the
motion to suppress, Officer Chabot testified that he found the
cocaine during a routine inventory search of Mundy’s car.
Philadelphia police policy provides that before a vehicle is towed,
its contents must be inventoried in order to protect the police from
claims of missing property and damage. Mundy argued, in relevant
part, that the officers did not have probable cause to search the
vehicle, and that the inventory search policy did not sufficiently
regulate the officers’ discretion with respect to closed containers
found in the vehicle. The District Court denied the motion to
suppress, concluding that the search was conducted pursuant to a
valid inventory search in accordance with departmental policy.

Mundy’s case was tried to a jury beginning on July 17, 2007
and, on July 19, 2007, the jury returned guilty verdicts against
Mundy on both counts. On October 9, 2007, the District Court
sentenced Mundy on Count Two, the § 860(a) violation,2 to

1
Mundy does not challenge the legality of the stop on
appeal. Mundy Br. at 10-11.

2
Section 841(a) offenses are lesser-included offenses of §
860(a) offenses. See United States v. Jackson, 443 F.3d 293, 294-

4
seventy-eight months in prison, eight years of supervised release,
a fine of $10,000, and a special assessment. Mundy filed a timely
notice of appeal. 3

II.

Mundy contends that the District Court erred in admitting
into evidence the cocaine seized during a warrantless inventory
search of his car. In reviewing the denial of a motion to suppress
alleging violations of the Fourth Amendment, we review factual
findings for clear error and exercise plenary review over the
District Court’s legal conclusions. United States v. Williams, 417
F.3d 373, 376 (3d Cir. 2005). “Because the basis for denial of the
motion was a determination that the search that produced the
evidence was valid, we must review the propriety of the
warrantless search that led to the discovery of incriminating
evidence.” Id.

A.

The Supreme Court has recognized that “[t]he touchstone of
the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500
U.S. 248, 250 (1991). Warrantless searches and seizures are
presumptively unreasonable and are therefore prohibited under the
Fourth Amendment, unless an exception applies. California v.
Acevedo, 500 U.S. 565, 580 (1991) (“It remains a cardinal principle
that searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment – subject only to a few specifically established
and well-delineated exceptions.” (quotation marks omitted)); see
also Katz v. United States, 389 U.S. 347, 357 (1967). “Such
exceptions are based on the Supreme Court’s determination that a
particular search is reasonable, that is, that the government’s
legitimate interests in the search outweigh the individual’s legitimate

95 (3d Cir. 2006).

3
The District Court had jurisdiction over the underlying
criminal prosecution pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

5
expectation of privacy in the object of the search.” United States v.
Salmon, 944 F.2d 1106, 1120 (3d Cir. 1991).

The Supreme Court has determined that one exception to the
warrant requirement is for inventory searches of lawfully seized
automobiles. Colorado v. Bertine, 479 U.S. 367, 371 (1987); Illinois
v. Lafayette, 462 U.S. 640, 643 (1983) (“[T]he inventory search
constitutes a well-defined exception to the warrant requirement.”);
South Dakota v. Opperman, 428 U.S. 364, 372 (1976)
(“[I]nventories pursuant to standard police procedures are
reasonable.”). Inventory procedures serve three “strong
governmental interests”: “[1] to protect an owner’s property while
it is in the custody of the police, [2] to insure against claims of lost,
stolen, or vandalized property, and [3] to guard the police from
danger.” Bertine, 479 U.S. at 372.

Lawful inventory searches must be “conducted according to
standardized criteria” or established routine, consistent with the
purpose of a non-investigative search. Id. at 374 n.6. This
requirement “tend[s] to ensure that the intrusion w[ill] be limited in
scope to the extent necessary to carry out the caretaking function.”
Opperman, 428 U.S. at 375. The criteria or routine must limit an
officer’s discretion in two ways: first, as to whether to search the
vehicle, and second, as to the scope of an inventory search. Salmon,
944 F.2d at 1120-21 (citing Florida v. Wells, 495 U.S. 1, 4-5 (1990);
Bertine, 479 U.S. at 374 & n.6, 375-76). These limitations ensure
that officers performing these caretaking functions are “‘not []
allowed so much latitude that inventory searches are turned into a
purposeful and general means of discovering evidence of a crime.’”
Id. at 1120 (quoting Wells, 495 U.S. at 4 (quotation marks omitted));
see also Wells, 495 U.S. at 4 (“[A]n inventory search must not be a
ruse for a general rummaging in order to discover incriminating
evidence.”).

Mundy argues that the cocaine seized from the shoebox in the
trunk of his car should have been suppressed because it was “the
fruit of an illegal inventory search.” Mundy Br. at 13-14. In
particular, Mundy contends that although the Philadelphia Police
Department did have a policy on inventory searches, the policy did

6
not address explicitly how closed containers were to be treated.
Several decisions set the background for our analysis of this issue.
In Colorado v. Bertine, the Supreme Court considered
whether, and under what circumstances, police may inventory the
contents of closed containers found in vehicles lawfully taken into
their custody. During the inventory search of Bertine’s impounded
vehicle, an investigating officer opened a closed backpack, a nylon
bag within the backpack, and closed metal canisters located inside
the nylon bag. 479 U.S. at 369. The officer found controlled
substances, cocaine paraphernalia, and a large amount of cash in the
canisters. Id. Reversing suppression of this evidence, the Court
acknowledged that “reasonable police regulations relating to
inventory procedures administered in good faith satisfy the Fourth
Amendment.” Id. at 374. The Court rejected the suggestion that
police, before inventorying a container, “weigh the strength of the
individual’s privacy interest in the container against the possibility
that the container might serve as a repository for dangerous or
valuable items.” Id. Rather, the Court observed, “[a] single familiar
standard is essential to guide police officers, who have only limited
time and expertise to reflect on and balance the social and individual
interests involved in the circumstances they confront.” Id. at 375
(quotation marks omitted, alteration in original).

The Bertine Court added that nothing in its jurisprudence
“prohibits the exercise of police discretion so long as that discretion
is exercised according to standard criteria and on the basis of
something other than suspicion of criminal activity.” Id. at 375.
The Court held that there was no showing that the inventory search
was “for the sole purpose of investigation.” Id. at 372. Further, the
Court noted that standard procedures governed the inventory search
and that those procedures “mandated the opening of closed
containers and the listing of their contents.” Id. at 374 n.6.
Accordingly, the Court held that the Fourth Amendment did not
prohibit use of the evidence found during the inventory search of
Bertine’s vehicle.

In Florida v. Wells, the Supreme Court addressed how much
discretion law enforcement officers may be afforded to open closed
containers under inventory search policies for Fourth Amendment

7
purposes. The Court made clear that while law enforcement officers
must not have “uncanalized discretion” in conducting inventory
searches, “there is no reason to insist that they be conducted in a
totally mechanical ‘all or nothing’ fashion.” 495 U.S. at 4. Noting
the important purposes of inventory searches, the Court recognized
that law enforcement officers “may be allowed sufficient latitude to
determine whether a particular container should or should not be
opened in light of the nature of the search and the characteristics of
the container itself.” Id. The Court further explained that “while
policies of opening all or no containers are unquestionably
permissible, it would be equally permissible, for example, to allow
the opening of closed containers whose contents officers determine
they are unable to ascertain from examining the containers’
exteriors.” Id. Concluding, the Court observed that “[t]he
allowance of the exercise of judgment based on concerns related to
the purposes of an inventory search does not violate the Fourth
Amendment.” Id. Under the facts presented, the Wells Court held
that marijuana discovered after police forced open a locked suitcase
located in the trunk of an impounded vehicle was properly
suppressed because the police department had “no policy whatever
with respect to the opening of closed containers encountered during
an inventory search.” Id. at 4-5.

Following Bertine and Wells, this Court in United States v.
Salmon considered whether a weapon found in a gym bag in the
trunk of a vehicle pursuant to a purported inventory search should
be suppressed. 944 F.2d at 1118. We began our analysis of the
issue by recognizing that “pre-existing criteria or routine must limit
an officer’s discretion regarding the scope of an inventory search,
particularly with respect to the treatment of closed containers.”
Salmon, 944 F.2d at 1120 (emphasis in original). We noted that
although there was some evidence that the local government had a
policy that all vehicles seized for forfeiture (as in Bertine) were
searched, we concluded that “as in Wells, the government did not
point to any standardized criteria or routine governing the scope of
inventory searches.” Id. at 1121 (emphasis in original). As a result
of “the lack of evidence of any criteria or established routine
regarding the scope of an inventory search,” we concluded that the
officers had exercised “impermissible discretion regarding the scope

8
of the inventory,” and we accordingly held that the inventory search
was unlawful. Id.

B.

During a lawful stop based on suspected traffic violations,
Philadelphia Highway Patrol officers determined that Mundy was in
violation of § 1301(a) of the Pennsylvania vehicle code, which
prohibits driving an unregistered vehicle. 75 Pa. Cons. Stat. §
1301(a)(1). Under Pennsylvania law, if an officer determines that
a driver is operating a vehicle in violation of, inter alia, § 1301(a),
that vehicle may be impounded. Id. § 6309.2 The Philadelphia
Police Department has issued guidelines – known as Live Stop (the
“PPD Live Stop Policy”) – that implement the impoundment
provisions of the Pennsylvania Vehicle Code, § 6309.2. Appendix
(“App.”) 44.4 Once it is determined that the driver is in violation of
§ 6309.2, the PPD Live Stop Policy directs an investigating officer
to inventory the contents of the vehicle taken into custody. App. 45-
46.

Mundy does not challenge the investigating officers’ decision

4
The PPD Live Stop Policy provides, in relevant part:

[T]he investigating officer[] shall . . . :

1. Have the operator and occupants exit the vehicle and remain on
location . . . .

2. Complete the Towing Report by conducting a vehicle inventory
describing any damage and/or missing equipment, personal
property of value left in the vehicle by the operator/occupants[,]
including the trunk area if accessible.

NOTE: No locked areas, including the trunk area, will be
forced open while conducting an inventory.

App. 46.

9
to conduct an inventory search following the seizure of his vehicle.
Instead, he argues that the officers exceeded their authority when
they searched closed containers located in the trunk of the vehicle.
He asserts that this case hews closely to Salmon and Wells, claiming
that the PPD Live Stop Policy does not regulate inventory searches
of closed containers.

Officer Chabot testified at trial that he searched Mundy’s
vehicle for “valuable items” and other kinds of “personal effects”
before it was impounded, in accordance with the PPD Live Stop
Policy. App. 92. The terms of that policy require the investigating
officer to “[c]omplete the Towing Report by conducting a vehicle
inventory describing any . . . personal property of value left in the
vehicle by the operator/occupants[,] including the trunk area if
accessible.” App. 46. The PPD Live Stop Policy also limits the
scope of the inventory search, instructing that “[n]o locked areas,
including the trunk area, will be forced open while conducting an
inventory.” Id.5

Mundy contends that, because the PPD Live Stop Policy does
not specifically mention the opening of closed containers, officers
may not search closed containers found during a vehicle inventory
search. We disagree. Inventory searches are not “totally
mechanical” procedures. Wells, 495 U.S. at 4. Standardized criteria
or routine may adequately regulate the opening of closed containers
discovered during inventory searches without using the words
“closed container” or other equivalent terms. We decline to create
a rule of constitutional dimension that requires an inventory search
protocol to predict every conceivable scenario an officer may

5
“The existence of . . . a valid [standardized inventory
search] procedure may be proven by reference to either written
rules and regulations or testimony regarding standard practices.”
United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994) (citations
omitted); see also United States v. Como, 53 F.3d 87, 92 (5th Cir.
1995) (upholding inventory search in the absence of a written
policy, explaining that “testimony regarding reliance on
standardized procedures is sufficient”). Here, both the written PPD
Live Stop Policy and Officer Chabot’s testimony established the
standard departmental procedure regulating inventory searches.

10
happen upon while conducting an inventory search, and to provide
a formulaic directive for each and every one. Such a requirement
would not only prove unworkable, but would run contrary to the
letter and spirit of Bertine and Wells. See United States v. Andrews,
22 F.3d 1328, 1336 (5th Cir. 1994) (upholding inventory search
involving an officer’s reading of incriminating evidence inside a
notebook recovered pursuant to an inventory search, reasoning that
neither Bertine nor Wells “requires a law enforcement agency’s
inventory policy to address specifically the steps that an officer
should take upon encountering a closed container”).

Instead, “reasonable police regulations relating to inventory
procedures,” Bertine, 479 U.S. at 374, mean that “[t]he policy or
practice” is “designed to produce an inventory,” Wells, 495 U.S. at
4, and that the criteria do not allow officers “so much latitude that
inventory searches are turned into ‘a purposeful and general means
of discovering evidence of a crime.’” Id. (quoting Bertine, 479 U.S.
at 376 (Blackmun, J., concurring)).6 Those principles are satisfied

6
Accord United States v. Matthews, 591 F.3d 230, 238 (4th
Cir. 2009) (“[W]ithin the constraints of the [applicable] policy,
officers may exercise discretion in deciding whether or not to open
a particular container.”); United States v. Hall, 497 F.3d 846, 852
(8th Cir. 2007) (“That the Policy allows some discretion . . . does
not make the inventory search unconstitutional.”); United States v.
Tackett, 486 F.3d 230, 232 (6th Cir. 2007) (“[O]fficers may
exercise some judgment based on concerns related to the purpose
of an inventory search; for example, they may decide to open
particular containers if they cannot determine the contents.”
(quotation marks omitted)); United States v. Thompson, 29 F.3d
62, 65-66 (2d Cir. 1994) (“Although the [established inventory
search] procedure must not be a pretext ‘for a general rummaging
in order to discover incriminating evidence,’ it may allow the
searching officers sufficient discretion in deciding whether or not
to open a specific container.” (quoting Wells, 495 U.S. at 4));
United States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991) (“The
police department’s inventory procedures can allow an officer
‘latitude to determine whether a particular container should or
should not be opened in light of the nature of the search and
characteristics of the container itself.’” (quoting Wells, 495 U.S. at

11
here.

The PPD Live Stop Policy explicitly sets out its objectives,
namely, to protect the owner’s property and shield the officers from
claims of loss or damage. The Policy also sufficiently regulates the
scope of the search, directing investigating officers to search all
accessible areas of the vehicle (including the trunk), provided that
they are not forced open, to determine if they contain “any . . .
personal property of value,” or other effects. App. 46. A search of
unlocked containers that may hold such property or effects, as
happened here, falls comfortably within the PPD Live Stop Policy’s
general directive, and therefore does not violate the Fourth
Amendment. See Wells, 495 U.S. at 4.

Mundy’s reliance on Wells and Salmon is misplaced. In each
of those cases, the courts found that there was no standard policy or
procedure governing the scope of inventory searches. In Wells, the
closed container at issue was a locked suitcase that was forced open
at the direction of a state trooper, and there was “no policy whatever
with respect to the opening of closed containers.” 495 U.S. at 4.
The Court concluded that the search of the suitcase was unlawful,
explaining that officers may not be given total discretion to decide
whether to open a closed container found during an inventory
search. Id. at 4-5. Similarly, in Salmon, the complete absence of a
relevant inventory search protocol underscored our decision.
Indeed, we explained that the Government had failed to “point to
any standardized criteria or routine governing the scope of inventory
searches.” Salmon, 944 F.2d at 1121 (emphasis omitted). Wells and
Salmon, therefore, exemplify “a prime danger of insufficiently
regulated inventory searches: police may use the excuse of an
‘inventory search’ as a pretext for broad searches of vehicles and
their contents.” Wells, 495 U.S. at 5 (Brennan, J., concurring).

In the present case, by contrast, the PPD Live Stop Policy
restricted Officer Chabot from forcing open the trunk or any other

1)); United States v. Judge, 864 F.2d 1144, 1145 (5th Cir. 1989)
(noting that “Bertine does not condemn all forms of police
discretion, but only ‘evidentiary’ discretion which is exercised on
the basis of suspicion of criminal activity”).

12
locked areas of the vehicle. The Policy instructed him to inventory,
inter alia, “any . . . personal property of value left in the vehicle by
the operator/occupants[,] including the trunk area if accessible.”
App. 46. By specifically authorizing the search of the trunk “if
accessible,” and by forbidding any “locked areas, including the trunk
area,” from being “forced open,” the Policy: (1) authorized Officer
Chabot to inventory “any personal property of value” left in the
trunk once Mundy provided the keys to it; and (2) simultaneously
curtailed his authority to embark on a generalized search for
incidents of crime. Though the PPD Live Stop Policy does not
contain magic words relating specifically to closed containers, its
reference to “any . . . personal property of value” sufficiently
regulated the scope of a permissible inventory search, and therefore
authorized the opening of the shoebox in Mundy’s trunk to
determine if such property was contained therein. Officer Chabot
acted in accordance with standardized criteria; there is no evidence
that he exercised unbridled discretion in choosing to open the
unlocked container.

Our sister courts of appeals have reviewed questions similar
to that posed here. In United States v. Wilson, 938 F.2d 785 (7th
Cir. 1991), the Court of Appeals for the Seventh Circuit held that the
inventory search policy governing the Illinois state police “clearly
establishe[d] the policy that closed containers can be opened,” id. at
790, even though the policy did not use the “buzz words ‘closed
container,’” id. at 789. The court held that the policy’s requirement
that the investigating officer examine and inventory the “contents”
of the vehicle, together with the direction to restrict the search to
areas where owners or operators would normally place personal
property, sufficiently limited the officers’ discretion. Id. at 790; see
also United States v. Richardson, 121 F.3d 1051, 1055-56 (7th Cir.
1997) (reaffirming the holding in Wilson).

In United States v. Thompson, 29 F.3d 62 (2d Cir. 1994), the
Court of Appeals for the Second Circuit considered facts that closely
parallel this case. There, the court reviewed an inventory search of
a locked briefcase (to which the defendant had provided the key)
recovered from an impounded vehicle. Id. at 64. At issue was
whether the applicable inventory search regulations provided

13
sufficiently standardized criteria to the officers conducting the
inventory search. Id. at 65. The regulations stated in pertinent part:
“A member of the Department who impounds any motor vehicle
shall inventory the contents of the vehicle and record the results. . .
. It is not necessary to enter locked portions of any vehicle to
conduct an inventory search when keys to enter are not available.”
Id. at 66 (emphases in original). The court rejected the argument
that police officers “used impermissible discretion in conducting the
inventory search because the regulations refer to ‘locked portions’
and do not specifically mention the term ‘closed containers.’” Id.
Citing Wilson, the court explained that “[t]he terms ‘contents’ and
‘locked portions’ in the regulations provide sufficient elucidation to
satisfy the constitutional requirements for an inventory search of a
closed container when keys are available.” Id.7

More recently, in United States v. Matthews, 591 F.3d 230
(4th Cir. 2009), an officer conducting an inventory search of an
impounded vehicle discovered, inter alia, a substantial quantity of
packaged cocaine in a closed suitcase recovered from the trunk. The
defendant challenged the inventory search on the basis that the
officer “could not have followed standardized criteria because the
Department’s policy does not specify how an officer should handle
closed containers.” Id. at 236. The Court of Appeals for the Fourth
Circuit cited as authority Wilson, Richardson, and Thompson, and
held that “[a] police department’s policy on inventory searches does
not have to specifically use the phrase ‘closed containers’ to permit
the search and seizure of such items.” Id. The court rejected the
defendant’s challenge to the inventory search, reasoning as follows:

Like the policies discussed in
Thompson, Wilson, and Richardson,
the Department’s policy, though not

7
See also State v. Mesa, 717 N.E.2d 329, 334 (Ohio 1999)
(upholding an inventory search where departmental policy
“require[d] that ‘open compartments of the vehicle are to be
searched[,]’ and that ‘locked compartments shall not be opened,’”
and concluding that “[b]y its very terms, this language does not
prohibit officers from searching closed compartments[,]” but only
prohibits opening those “that are locked”).

14
explicitly using the phrase “closed
containers,” sufficiently regulates the
opening of such containers to provide
standardized criteria to justify Deputy
Clark’s search of Matthews’s bags.
That policy requires, in relevant part,
for “[a] complete inventory [to] be
taken on all impounded or confiscated
vehicles including the interior, glove
compartment and trunk.” Only by
opening all closed containers could a
police officer effectively comply with
this requirement for a “complete
inventory.” . . .

The circumstances in this case represent
the typical situation in which the
necessity of an inventory search arises.
As the policy in question reflects, the
purpose of conducting the inventory
search is to protect the owner’s property
while in the custody of the police from
“loss or theft.” Only by performing a
full inventory of the car – which
includes opening closed containers –
could an officer identify all the
vehicle’s valuables and effectively
secure them. Accordingly, we agree
with the district court that because the
Department’s policy authorizes the
o p en ing o f c lose d c o n ta in e r s
encountered during an inventory search
and Deputy Clark adhered to that
policy, Deputy Clark’s search falls
within the inventory search exception
and thus does not violate the Fourth
Amendment.

15
Id. at 237-38 (citations omitted).8

For the reasons we have articulated, we agree with these
courts. The inventory search protocols at issue in those cases are
constitutionally indistinguishable from the PPD Live Stop Policy
that Mundy challenges here. We hold that the Policy provided
sufficiently standardized criteria regulating the scope of a
permissible inventory search – including searches of closed
containers – and that Officer Chabot’s search adequately complied
with those criteria.

Mundy also argues that the officers’ reliance on the PPD Live
Stop Policy was a pretext for an investigatory search because the
officers did not complete a Towing Report and because the officers
believed that they would find narcotics in the vehicle. First, the
failure of the investigating officers to complete a Towing Report
does not demonstrate that the officers conducted the inventory
search as pretext or in bad faith. The record indicates that Officer
Trappler produced an inventory of items seized from the vehicle on
property receipts, including the narcotics, but that the officers did
not complete a Towing Report describing personal effects left in the
vehicle. App. 61.

Although compliance with procedures “tends to ensure the
intrusion is limited to carrying out the government’s caretaking
function,” failure to follow through with standard procedures does
not necessarily render the search unreasonable. United States v.
Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998); see also Whren v.
United States, 517 U.S. 806, 816 (1996) (“[I]t is a long leap from the
proposition that following regular procedures is some evidence of
lack of pretext to the proposition that failure to follow regular
procedures proves (or is an operational substitute for) pretext.”
(emphasis in original)); United States v. Trullo, 790 F.2d 205, 206
(1st Cir. 1986) (“We will not hold that the officer’s failure,

8
Notably, the Matthews court distinguished our decision in
Salmon, emphasizing – as we have above – that there, “the law
enforcement agency had ‘no written policy regarding inventory
search procedures,’ much less one addressing closed containers.”
Matthews, 591 F.3d at 236 n.8 (quoting Salmon, 944 F.2d at 1121).

16
technically, to follow the inventory form procedures for valuables
meant [that] it was not an inventory search.”). The search in this
case was undertaken pursuant to established procedures and
standardized criteria designed to produce an inventory. After
discovering controlled substances, the officers ended the inventory
and called in narcotics investigators. “This change of plans does not
render the search unreasonable . . . .” United States v. Woolbright,
831 F.2d 1390, 1394 (8th Cir. 1987).

Mundy also argues that the officers were motivated by the
expectation of finding criminal evidence in his vehicle. Officer
Chabot testified that, while Mundy was looking for his registration
and insurance information, he observed what he believed to be a
small marijuana bud on the driver’s side of the car. App. 91, 95.
Officer Soto testified that he noticed two vials “normally used for
narcotics” in the center console. App. 100. In addition, both
Officers Chabot and Soto testified that they detected a strong odor
in the vehicle, which they identified as cocaine based on anecdotal
evidence, including its distinctive scent. App. 95-96, 100. Such
initial observations alone do not suggest that the subsequent
inventory search was conducted in bad faith. See United States v.
Lopez, 547 F.3d 364, 372 (2d Cir. 2008). As the court reasoned in
Lopez,

The Fourth Amendment does not
permit police officers to disguise
warrantless, investigative searches as
inventory searches. However, the
Supreme Court has not required an
absence of expectation of finding
criminal evidence as a prerequisite to a
lawful inventory search. When
officers, following standardized
inventory procedures, seize, impound,
and search a car in circumstances that
suggest a probability of discovering
criminal evidence, the officers will
inevitably be motivated in part by
criminal investigative objectives. Such

17
 motivation, however, cannot reasonably
disqualify an inventory search that is
p e r f o r m e d u n d e r s t a n d a rd i z e d
procedures for legitimate custodial
purposes.

Id. (citations omitted).

The District Court in the present case found that the officers
“took the normal steps one would take” to search the vehicle prior
to impoundment. App. 64. We see no error in this finding, and have
no reason to doubt that the Supreme Court’s standards for a
warrantless inventory search were satisfied.

* * * *

We conclude that the search here did not violate the Fourth
Amendment. The PPD Live Stop Policy adequately regulated the
scope of the inventory search with respect to closed containers, and
the search of Mundy’s vehicle, conducted in accordance with those
standardized procedures, was reasonable.

III.

Mundy next argues that the District Court erred in applying
a two-level enhancement to his U.S.S.G. offense level pursuant to
U.S.S.G. § 2D1.2(a)(1). We engage in plenary review of the District
Court’s legal interpretation of the Guidelines. United States v.
Aquino, 555 F.3d 124, 127 n.5 (3d Cir. 2009).

Section 2D1.2 provided for a two-level enhancement to the
Guidelines offense level for, inter alia, offenses committed in
violation of 21 U.S.C. § 860. See U.S.S.G. § 1B1.2(a) (requiring
reference “to the Statutory Index (Appendix A) to determine the
Chapter Two offense guideline”); U.S.S.G. App. A (2007) (making
§ 2D1.2 enhancement applicable to offenses committed under 21
U.S.C. § 860).9 Mundy was convicted of possession of more than

9
Citing U.S.S.G. § 1B1.2(a), Mundy argues that the
“Guidelines require that the district court apply the guideline

18
500 grams of cocaine within 1,000 feet of a school, in violation of
21 U.S.C. § 860(a). The District Court, therefore, applied the two-
level enhancement.

Mundy makes two arguments as to why § 2D1.2(a)(1)
nevertheless should be read not to apply to his possession with intent
to distribute conviction, neither of which we find persuasive. First,
Mundy argues that § 2D1.2(a)(1) does not apply because there is no
evidence that he intended to distribute any drugs within 1,000 feet
of a school (though he did possess them there). He argues
specifically:

It is uncontested that Mr. Mundy did
not choose to stop in a protected
location; he was ordered to stop within
1,000 feet of a school by police officers
who observed his alleged commission
of moving violations. But for the
traffic stop, Mr. Mundy would have
continued through the school zone and
on to his ultimate destination.

Mundy Br. at 27. “[I]mportant public policy reasons,” Mundy
contends, dictate that the Guidelines treat possessors who do intend
to distribute within a protected area different from possessors who
intend to distribute elsewhere. Id. at 25.

We previously addressed a very similar issue – whether 21 U.S.C.
§ 860 (which triggers the § 2D1.2(a)(1) enhancement at issue here)
applies to a possessor who did not intend to distribute in a protected
area – in United States v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992).
In Rodriguez, the defendant argued that § 860 does not apply to a

assigned to each statute of conviction in Appendix A, not in the
commentary,” and that “Appendix A lists § 2D1.1 as the applicable
guideline in § 860(a) cases.” Mundy Reply Br. at 10. Mundy
misreads Appendix A. Section 2D1.2 applies to violations of 21
U.S.C. § 860(a). See U.S.S.G. App. A (2007). Section 2D1.1
applies to violations of 21 U.S.C. § 860a – a statute different from
§ 860.

19
defendant who possesses drugs within 1,000 feet of a school but
intends to distribute them elsewhere. 961 F.2d at 1091. After
reviewing the plain language of the statute, as well as the legislative
history, we concluded that § 860 applies to a defendant who
possesses drugs within 1,000 feet of a school, even if the defendant
intends to distribute them elsewhere. Id. at 1092. We rejected the
argument that the statute should not apply to possessors who do not
evidence an intent to distribute in a protected area, such as “a
defendant who speeds by a school in a train or other vehicle on the
way to a narcotics sale.” Id. at 1094. Indulging this argument, we
reasoned, “would make the statute inapplicable in several situations
in which the mere possession of sizeable quantities of drugs near a
school would create an increased risk for students.” Id. Some of
those risks include increased chance of violence, as well as loss,
theft, or abandonment of the drugs. Id.10 Our reasoning in
Rodriguez, which led us to the conclusion that § 860 applies to
possessors who do not intend to distribute in a protected area,
suggests that § 2D1.2(a)(1) – a sentencing enhancement triggered by
a violation of § 860 – applies to those possessors as well. Thus,
Mundy’s first argument fails.

Mundy’s second argument fares no better. He points to an
Application Note to § 2D1.2, which provided, in relevant part, “This
guideline applies only in a case in which the defendant is convicted
of a statutory violation of drug trafficking in a protected location.”
U.S.S.G. § 2D1.2 cmt. n.1 (emphasis added). “Drug trafficking” is
not a defined term for purposes of § 2D1.2. Mundy contends that
possession with intent to distribute does not constitute “drug
trafficking” because “drug trafficking” entails the actual sale or
distribution of drugs, and therefore does not trigger the §
2D1.2(a)(1) enhancement. In support of his contention, Mundy
notes that Congress, for the purposes of 21 U.S.C. § 862, defines
“drug traffick[ing]” to require actual distribution. See 21 U.S.C. §
862. Mundy posits that the phrase should carry that same meaning

10
We also noted that the statute may apply to a defendant
who intends to sell drugs in a protected area, even when there is no
increased risk to students, such as when school is not in session.
Id. at 1094-95.

20
when used in the Application Note to U.S.S.G. § 2D1.2, an
enhancement triggered by the violation of § 862’s neighbor, § 860.
Mundy Br. at 25.

Mundy’s argument is unpersuasive in light of the
Commentary to § 2D1.2’s unequivocal instruction that § 2D1.2(a)(1)
applies to drug offenses – like Mundy’s – committed in violation of
§ 860. See U.S.S.G. § 2D1.2 cmt. Thus, Mundy’s second argument
fails.

We hold that the District Court did not err in applying a two-
level enhancement to Mundy’s Guidelines offense level under §
2D1.2(a)(1).

IV.

For the reasons stated above, we will affirm the judgment of
conviction and sentence of the District Court.

21