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United States v. Cherry

February 3, 2006

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALAN K. CHERRY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 1049-Milton I. Shadur, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED JUNE 15, 2005

Before POSNER, COFFEY, and KANNE, Circuit Judges.

Alan Cherry was caught with a gun during a traffic stop and later pleaded guilty to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). In his plea agreement, Cherry preserved his right to challenge on appeal the denial of his motion to suppress the gun, which was found in the trunk of his car. The propriety of that search is the only issue before us.

Cherry's encounter with Joliet, Illinois, police began when he was stopped on Interstate 80 for speeding and failing to signal a lane change. Officer Harris testified at the suppression hearing that he smelled burnt marijuana as he approached Cherry, who provided a driver's license but not proof of insurance. Harris then walked behind the car to deliver Cherry's licence to another officer, Officer May, while a third officer, Officer Batis, approached the car from the passenger's side. Batis testified that from his vantage point he saw a plastic bag protruding from Cherry's right-front pants pocket. Batis gestured to Harris, who testified that he understood the signal to mean that Batis saw contraband. The officers directed Cherry to exit the car, and when he did, according to Harris, the bag of marijuana in his pants pocket was visible. The officers searched Cherry, seized the marijuana, and placed him in custody. Harris then issued three tickets-for speeding, failing to signal, and driving without proof of insurance-and began completing a tow sheet to record the condition and contents of Cherry's car. At the same time Batis and May began an inventory search of the car. May found the gun in the trunk.

After he was charged in federal court, Cherry challenged the admissibility of the gun. He argued that he never should have been ordered out of his car and searched because Officer Batis could not possibly have seen the marijuana while he was still seated in the car. And, Cherry continued, since the search revealing the marijuana was unconstitutional, his drug arrest was unlawful and the inventory search that uncovered the gun was tainted.

Although Cherry was not charged with possession of marijuana, the district court first addressed its discovery. The court focused on two photographs, introduced by Cherry, of a car similar in make and model to his. The photographs show a front-seat console that the court opined would have blocked Officer Batis's view of the plastic bag in Cherry's pants pocket. The court also questioned why Officer Harris testified that he relied on Batis's observations as the basis for directing Cherry to exit the car, when Harris stated in his arrest report and testified that he himself smelled burnt marijuana. In a tenuous ruling, the court found Batis not credible and, apparently on that basis alone, concluded that the seizure of the marijuana and the arrest of Cherry did not justify the inventory search that uncovered the gun. And though the district court never explicitly discredited Harris or explained why the officers did not have probable cause to arrest Cherry and search his car based solely on Harris's unchallenged testimony that he smelled burnt marijuana, the court moved on to consider whether the circumstances of the traffic stop were enough to authorize the inventory search.

The court observed that the traffic stop and subsequent revelation that Cherry lacked proof of insurance, under the written policies of the Joliet Police Department, prevented him from moving his car from its location alongside the interstate. In this circumstance, the court found, department policy required that the car be towed. And, the court continued, when a car is towed "on the authority" of an officer, department policy also requires an inventory search. Thus, despite concluding that it must ignore the marijuana, the court still reasoned that the inventory search had been authorized. The court, though, explained that it was denying the motion to suppress based upon the doctrine of "inevitable discovery."

Given the district court's analysis, the parties debate whether the admission of the gun was justified under the "inevitable discovery" doctrine, but resort to that doctrine is unnecessary. The "inevitable discovery" doctrine is a means for the government to avoid suppression of evidence obtained as the result of unlawful conduct by the police, see, e.g., United States v. Brown, 328 F.3d 352, 356-57 (7th Cir. 2003); United States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002), and for the doctrine to apply the government must prove by a preponderance that authorities "would have found the challenged evidence through lawful means." United States v. Jones, 72 F.3d 1324, 1334 (7th Cir. 1995) (emphasis added); see Nix v. Williams, 467 U.S. 431, 444 (1984); United States. v. Pittman, 411 F.3d 813, 817 (7th Cir. 2005); United States v. Johnson, 380 F.3d 1013, 1014 (7th Cir. 2004). In this case, however, the government has always contended that Joliet Police officers did find the gun through lawful means. We recognize that the government has inexplicably abandoned reliance on Officer Harris's testimony that he smelled marijuana-which seems a simple and compelling foundation for searching Cherry and ultimately the car including the trunk, see United States v. Wimbush, 337 F.3d 947, 950-51 (7th Cir. 2003) (smell of marijuana gave rise to probable cause for warrantless search of vehicle revealing marijuana in passenger compartment); United States v. McGuire, 957 F.2d 310, 314 (7th Cir. 1992) (presence of contraband in passenger compartment is probable cause to search entire vehicle, including trunk, for additional contraband); see also United States v. Foster, 376 F.3d 577, 583-84, 588 (6th Cir. 2004) (smell of marijuana coming from vehicle provides probable cause to search without warrant); United States v. Brown, 334 F.3d 1161, 1173 & n.11 (D.C. Cir. 2003) (discovery of contraband in passenger compartment "is a factor that strongly supports the lawfulness of a trunk search"); United States v. Peltier, 217 F.3d 608, 610 (8th Cir. 2000) (smell of burnt marijuana gave police probable cause to search truck for drugs); cf. United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993) (search of trunk reasonable if initial search of passenger compartment, premised on smell of burnt marijuana, produces contraband). The government now focuses exclusively on the fact that Cherry lacked proof of insurance when the police stopped him; his lack of insurance, the government argues, was a valid basis for conducting the inventory search even if finding the marijuana on Cherry was not. But this is an argument that the search of the trunk was lawful, not an argument-like "inevitable discovery"-that unlawful conduct should not result in suppression.

Inventory searches are a recognized exception to the warrant and probable-cause requirements of the Fourth Amendment. United States v. Wilson, 938 F.2d 785, 788 (7th Cir. 1991). Searches conducted by the police prior to towing a car are "lawful if conducted pursuant to standard police procedures aimed at protecting the owner's property-and protecting the police from the owner's charging them with having stolen, lost, or damaged his property." Pittman, 411 F.3d at 817. We review a district court's conclusion that police officers "followed standard procedure while conducting an inventory search" for clear error, United States v. Lozano, 171 F.3d 1129, 1132 (7th Cir. 1999); see also United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004); United States v. Lomeli, 76 F.3d 146, 149 (7th Cir. 1996); United States v. Privett, 68 F.3d 101, 104 (5th Cir. 1995), but our review of the reasonableness of the inventory search and seizure is plenary, see United States v. Grap,403 F.3d 439, 443 (7th Cir. 2005); United States v. Jackson, 189 F.3d 502, 507 (7th Cir. 1999); United States v. Haro-Salcedo, 107 F.3d 769, 771 (10th Cir. 1997).

We turn first to the district court's finding that the written police policies of the Joliet Police Department authorized the inventory search of Cherry's car. The court relied on two written policies. General Order 17-3 requires an inventory search "[a]ny time a vehicle is towed on the authority of a member of [the Joliet Police] Department," except in the case of a traffic accident. See Gen. Order 17-3, "Towing Vehicles," § 1.3 (2003). General Order 17-18, in relevant part, establishes procedures for enforcing the Illinois Mandatory Insurance Law ("I.M.I.L."), 625 Ill. Comp. Stat. 5/3-707:

5. ENFORCEMENT PROCEDURE

5.1 When a sworn member stops a vehicle for a traffic law violation or investigation of a traffic accident, he will request proof of insurance documents from vehicle operators. No member will stop a vehicle solely for the purpose of verifying the existence of a valid insurance policy.

5.2 If an operator is not driving an exempt vehicle, and cannot or will not provide proof of insurance ...


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