United States v.
F. 3d 769 (
demonstrates how, despite valid grounds for suppressing
exist, the Court’s reliance on the
doctrine of “inevitable discovery” can defeat
a motion to suppress. Typical of the
plea scenario in “felon
in possession of firearm” cases , notwithstanding a guilty plea, the
defendant preserved his right to challenge on appeal the denial of
his motion to suppress evidence of the gun found in his
the “inevitable discovery” doctrine is the hard-nosed
federal courts (most significantly the 1ST
District and 7th Circuit) regarding inventory
searches. While the
doctrine of “inevitable discovery” requires the prosecution prove by
a preponderance of the evidence that the authorities would have
found the challenged evidence through lawful means, even if unlawful means were used
initially to uncover the evidence, “inventory searches are a
recognized exception to the warrant and probable cause requirements
of the Fourth
Wilson, 938 F. 2d 785, 788 (7thCir.
1991). There-fore, the prosecution’s burden of proof, as in this
case, is not very difficult.
Joliet police officers stopped the defendant
on an interstate highway for speeding and failing to signal a lane
change. One officer testified that he smelled marijuana when he
approached the defendant’s vehicle. And, after another officer
signaled him that he spotted contraband, the officer viewed a bag
protruding from defendant’s pocket as he exited his vehicle that
turned out to contain marijuana. Upon the defendant’s failure to
show proof of insurance, the officer wrote out a tow sheet while two
officers conducted an inventory search of the vehicle that uncovered
a gun in the trunk.
defendant was charged only with the illegal firearm possession, and
the District Court held that the circumstances of the traffic stop were sufficient to
authorize the inventory search—defendant having no proof of insurance and unable to move
his car from alongside the interstate. The Joliet P.D. had a written policy
authorizing officers to
tow the vehicle and conduct an inventory search when the driver
lacks proof of insurance.
The District Court Judge, while giving
no credence to the open view marijuana testimony, nonetheless held
that the inventory search had been authorized based on the police
department’s written policy, and the motion to suppress
evidence regarding the discovered firearm was denied pursuant to the
doctrine of “inevitable discovery.”
highlights of Justice Kanne’s opinion, with Justice Coffey concurring ( with
some omissions not noted in the quoted text, and my comments in
notes that notwithstanding the parties’ arguments regarding the
justification for applying the “inevitable discovery” doctrine,
“resort[ing] to that doctrine is unnecessary. The ‘inevitable
discovery’ doctrine is a means for the government to avoid suppression of
evidence obtained as a result of unlawful conduct by the police.,
see e.g., United States v. Brown, 328 F. 3d 352, 356 (7th
Cir. 2003); U.S. v. Langford, 314 F. 3d 892, 895 (7th
Cir. 2002), and for the doctrine to apply the government must prove
by a preponderance that the authorities ‘would have found the
challenged evidence through lawful
U.S. v. Jones, 72 F.3d 1324, 1334
(7th Cir. 1995). . . “ [additional citations
[ The Court goes on to note that
the government abandoned its arguments regarding the search based on
the officer having “smelled marijuana” and makes the observation that this factor
“provided a simple and compelling foundation for searching Cherry and
ultimately the car including the trunk, see U.S. v. Wimbush, 337
F.3d 947, 950-51 (7th Cir. 1991).” Instead, the
government focused on the fact that Cherry lacked proof of
insurance, and under
Joliet Police department policy,
the vehicle could be towed, and an inventory search
Cherry urged a different
interpretation of the policies. Having not argued that the police
engineered the initial stop as a subterfuge for criminal
Dakota v. Opperman, 428
U.S. 364, 371, n. 5, 96
S. Ct. 3092 (1976),
argued, instead, that “
the pertinent police policy section is exhaustive as to the
circumstances under which a tow is authorized.”]The Court responded
“. . . That contention, however, ignores that
Cherry’s car was towed not only because he lacked proof of
insurance, but also because the car could not be left alongside the
highway without creating a hazard—a circumstance not addressed in
General Order 17-18. General Order 17-4, which Cherry does not
confront, explicitly addresses parked vehicles that present a hazard
and provided unambiguous authority to tow Cherry’s
“ . . .That directive does not
compel the officers at the scene to invite or accept input from the
motorist as to the appropriate disposition of his vehicle, nor does
the Fourth Amendment
demand that police offer a motorist an alternative means of removing
his vehicle that will avoid the need to tow it and conduct
an inventory search.
Colorado v. Bertine,
479U.S. 367, 373-74, 107 S. Ct. 738 (1987) . . .
U.S. 640, 647, 103
S. Ct. 2605 (1983).
“. . . [T]he police were free to
tow his hazardously parked car pursuant to their standard policy, in
furtherance of their ‘community caretaking’ function. See Cady v.
U.S. 433, 441, 93
S. Ct. 2523 (1973).
. . .Affirmed.
NOTE: For an interesting
comparison of a State Court’s view of the
caretaking” function see People v. Travis Smith, 346
Ill. App. 146
at Archives. That case was affirmed by
State Supreme Court. 214
Ill. 2d 338.
Opinion: The dissent
in this case warrants viewing.
pointed out the inconsistencies in the
Joliet police department’s policy,
and measured its applicability in terms of Fourth Amendment
protections. The police should have no constitutional right to
an inventory search unless the vehicle is legally impounded and the
owner deprived of its custody. See
v. Privett, 68 F. 3d 101, 104 (5th Cir.
tow policy, with its correlating “inventory search”authorization,
does not stand up to constitutional muster when viewed in light of
the conflicting language that, on one hand, provides for an inventory
search whenever the
police order towing,
and, on the other, towing if the driver has no proof of
insurance, but impoundment only if, in addition, the driver does not
have a valid driver’s license (which Cherry did have). The
ordinance also gave the driver the option of having the vehicle
towed to a destination of his choice, including his home. In reaching his conclusion,
Justice Posner noted the following (with some omissions not noted
in the highlights’
Florida v. Wells, 495
U.S. 1, 110
Ct. 1632 (1990) holds that inventory searches are proper
only when they are conducted pursuant to ‘standardized criteria’ or ‘established routine.’
Id. @ 4, 110
S. Ct. 1632 [citing further, Bertine, Opperman
(supra) and U.S. V. Wilson,
938 F. 2d 785, 788 (7th Cir. 1991)]. That
makes it sound as if the
constitutionality of the search depends on whether the police have
complied with local law. But that can’t be right. If the local law
violates the Constitution, compliance with the local law cannot
justify the search; and if a search is reasonable within the meaning
of the Fourth Amendment, the fact that it violates local law does
not give the defendant a federal remedy.
v. Delaporte, 42 F. 3d 1118,1119 (7th Cir. 1994)
[Additional citations omitted].
Joliet p/d’s general order, in
pertinent part enforcing the State’s mandatory insurance
requirements, also contains provisions allowing for
police tow in the event the vehicle is illegally
“. . .That is the provision of
Joliet’s policy on which the
majority hangs its hat.
But the only reason Cherry’s car was illegally parked was
that he’d been pulled over by the police, so he was present and
therefore there was no need for the police rather than Cherry to
handle the tow. It
would be bootstrapping for the police to argue that if they want to
search a car that they’ve stopped for speeding, or some other
traffic offense that would not ordinarily justify a search of the
car, all they have to do is to arrange to stop it in a place where
it cannot be parked legally.
That would be to use the policy on inventory searches to
authorize illegal investigatory searches.
“. . . An inventory search has to
be in service of a legitimate interest unrelated to suspicion of
criminal activity if it is to comply with the
. . The police
of course searched Cherry’s car not because they thought they were
conducting an inventory search but because they were looking for
marijuana, so their conduct cannot fill a gap in the policy. In sum,
then, neither the
Joliet policy, nor the
circumstances, justified the police in impounding Cherry’s car; and
without impoundment, there was no justification for an inventory
search of the car.
. . Unless it’s impounded and
the owner therefore deprived of custody of its contents,
there is no constitutional basis for an inventory search.
States v. Privett, 68 F. 3d 101,
104 (5th Cir. 1995).
“ . . . The judgment cannot be
upheld on the basis of the district court’s reasoning. The case should be remanded
for a determination of the credibility of the officer who testified
that he smelled marijuana.
If the testimony is credited by the district judge, there was
probable cause to search the car; if not, not, and the evidence of
the gun should be