The United States of America v. Susan J. Kordosky
878 F.2d 991
7th Cir.
1989
Check Treatment

*1 America, of STATES The UNITED

Plaintiff-Appellee, KORDOSKY, J.

Susan

Defendant-Appellant.

No. 88-3333. Appeals, Court

Seventh Circuit.

Argued 1989.

Decided June Vaudreuil, Atty., W. Asst. Ma-

John dison, Wis. for U.S. Habermehl, Habermehl,

Alan G. Kalal & Madison, Kordosky. J. Wis. Susan BAUER, Judge, Before Chief EASTERBROOK, Judge, Circuit WILL, Judge.* Senior District BAUER, Judge. Chief May 11,1988, grand returned a jury On charging Kor- one-count indictment Susan in- of cocaine with dosky in violation of U.S.C. tent to distribute trial, 841(a)(1). filed Before § suppress two motions to evidence. Report magistrate, in his and Recommen- dations, urged of the motions denial Report district court Thereafter, Kordosky Recommendations. pursu- plea guilty, entered conditional of Criminal Procedure ant to Federal Rule 11(a)(2), right reserving appeal denial of motions district court’s accepted court Kor- suppress. The district plea her to two dosky’s and sentenced su- imprisonment years and five years ap- pervised This release. deny- court’s peal from the district orders suppress. ing her motions * Illinois, Will, sitting by designation. Judge Senior District The Honorable Hubert L. United States District Court for the Northern

A. Rickey Kordosky’s drove car to the sta- tion and conducted an During investigation Kordosky his for the vehicle. In a locked compartment in activities, drug-related Richard Detective car, the trunk of her Rickey $2,970 found Department of the Madison Police Pharo grams and 107 of cocaine. Kordosky’s driving privi discovered that suspended leges and remain were B. 10, May suspended Although until her suppress evidence, to motion April on Pharo received information Kordosky claimed that the search of her 19, 1988, Kordosky driving observed and on car incident to arrest the the violated several between 19th occasions Fourth Amendment because her arrest was 10th, took no May he action have her pretextual. United States v. 10th, May arrested. On someone informed 420, 285 U.S. 424, 52 S.Ct. Kordosky planning Pharo that was leave (1932). L.Ed. 877 appeal, Kordosky On the area. Pharo then Madison went to challenge does not following the principles: Kordosky’s house and maintained surveil that arrest person upon probable of a get lance he saw her there until into her justifies cause person, the search of the away, accompanied by car and drive anoth Robinson, 218, United States v. 414 U.S. Acting upon er woman. Pharo’s instruc (1973); 94 S.Ct. 38 L.Ed.2d 427 tions, police officer in a marked car vehicle, that is in arrestee Kordosky. stopped justifies the search of the passenger Kordosky. Pharo then arrested Accord- compartment vehicle, including Department policy, Police Madison Belton, closed containers. New York v. person operating a motor vehicle with a 454, 101 453 U.S. S.Ct. 69 L.Ed.2d 768 suspended subject full license to a custo- challenge Nor does she that Pha- Furthermore, dial arrest. the arrestee knowledge ro’s was driving she on a offense, post not at the site bail suspended gave license arresting must accompany officer to Rather, to arrest her. Kordosky claims police booking. for station After ar- that Pharo’s motive in her was resting Kordosky, Pharo her asked improper he her in arrested order to —that (who other woman was later identified as car, proba he because sister, Kordosky’s Layli) get out of the cause to driving arrest her for aon exhibiting reluctance, car. After great suspended license. Because mo Pharo’s Kordosky finally exited. Pharo noticed a in arresting improper, tive her was Kordo- bag containing small cotton balls and a claims, sky the search incident to her arrest rum, bottle of Bacardi materials used illegal. cocaine, to free-base seat of back Rickey, car. problem who ar- argument with this Kordosky arrested, rived after had been is that the test in this circuit to determine then pocket searched the car. In a at- an whether arrest was is an dashboard, Rickey tached to the objective found a one. McCarty, States United pipe, tube, (both free-base (7th Cir.1988). of which 862 F.2d See also residue), contained cocaine Hawkins, straws and cot- United States v. 811 F.2d 210 — ton placed Kordosky (3rd Cir.1987), balls. Pharo then denied, U.S. -, un- cert. possession der arrest for (1987); of cocaine. Rick- 108 S.Ct. 98 L.Ed.2d 69 United ey Kordosky’s purse searched Nersesian, (2nd States F.2d 1294 — Cir.1987); found denied, Vi6ounce cocaine. Pharo then U.S. -, cert. Kordosky advised being (1987); that she was also 98 L.Ed.2d 382 charged with intent to (5th dis- v. Causey, 834 F.2d 1179 Cir. 1987) (en tribute Pharo Rickey banc) cocaine. (rejecting previous directed Fifth seize the car future civil forfeiture. Circuit “reasonable officer” was then taken to the sta- asks a reasonable officer would tion. have made the without improper an WILL, search, purely Judge, Senior District favor motive test). concurring. But see United States Cir.1986) (9th Smith, (subjec- 802 F.2d 1119 predicated The court’s on the *3 arresting officers determines tive motive of “objec- that this circuit follows the basis legal). search Under the ob- was determining in tive” test whether or not a test, incident the search to the ar- jective legal. search incident to an That long arresting as the officer legal so rest it, as the defines makes the give information to possesses sufficient legal long search “as offi- probable cause to arrest. The arrest- him possesses give cer sufficient information to may only in ing motive be relevant officer’s probable cause to arrest.” His motive establishing the facts that the officer knew relevant, objectives ultimate are if at 862 McCarty, the time of the arrest. at all, only probable if he did not have cause case, In present at 148 n. 3. the F.2d to arrest. Kordosky driving on Pharo knew that was In Lefkowitz, United States v. 285 U.S. suspended license and therefore 420, 424, 52 76 L.Ed. 877 Because probable cause to arrest her. (1932), Supreme the Court held that an arrest, the Pharo had cause pretext “arrest used as a be properly court denied district In suppress Lefkowitz, found in the search for evidence.” lawful motion to evidence pursu- of her car incident to her arrest. arrests at the defendants’ residence search ant to valid arrest warrants were followed suppress In her second motion to by general during search of the residence evidence, Kordosky claims that the invento inculpatory evidence was found. ry of her car was unlawful. Inven search valid, though clearly the Even arrests were in lawfully of tory searches vehicles they pretext held to and not to were officers, police in accordance general premis- search of the warrant police procedures, standard are them es. Bertine, 479 v. selves lawful. Colorado 739 107 S.Ct. 93 L.Ed.2d Following Lefkowitz, a number of Circuit govern that Kordosky claims Appeal have held that searches Courts inventory that the ment did not establish pursuant “pretextual” arrests are inval in of her car was conducted accord search determining in id. The test to be used police procedures. ance with standard stop pretextual is whether a whether a hearing magistrate on During a before the made the reasonable officer would have issue, Rickey first testified this illegit search “in the absence of arrest and experience with the Ma about his extensive imate motivation.” United States Department dison Police and then testified (11th Cir.1986). Smith, 799 F.2d regarding the practice that the standard Circuits, citing Eighth The and Ninth Lef- con seizure of was to maintain automobiles cases, if other have held that kowitz and vehicle, car, inventory the trol of the primary purpose of the the motivation or contents. to make a of its list crime police is to search for evidence establishes, testimony at claims that this to the one for which the ostensi unrelated most, of Detective practice the standard is made the arrest is ble arrest however, found, Rickey. magistrate illegal. City search Warren conducted in inventory that the search was Lincoln, Neb., 1257-58 816 F.2d Madison Police with standard accordance (8th Cir.1987), the court said that “[a]n Department procedures and the district in ostensibly purpose one adopted finding. Because this court primary purpose of further reality for erroneous, finding clearly is not the district goal is unreasonable under an ulterior Kordosky’s motion to denying court’s order fourth and fourteenth amendments.” suppress evidence found And the Ninth Circuit United States v. search is therefore (9th Cir.1986), Smith, 802 F.2d improper found held that have “[c]ourts Affirmed. where the defendant is Keller, motivation arrested United States v. 499 F.Supp. 415, (N.D.Ill.1980). police for a minor offense so as allow for evidence of some un- other Id. at 979. proba- offense for which lack related Subsequently, question arose in to arrest or search.” The Dis- United States v. McCarty, F.2d 143 in McKnight trict Columbia Circuit (7th Cir.1988). The there expressly court States, (D.C.Cir.1950), F.2d held that the “ ‘the citing held arresting officers’ subjective reasons for ” and not the arrest’ was the real stopping a defendant are irrelevant long so *4 motive, “the search is not reasonable with- they as give the facts probable know them meaning of in the Constitution.” at Id. cause to so. do States, v. (quoting 978 Henderson United question There is no here that the motive 528, (4th Cir.1926)). 531 12 F.2d for arresting the 10, on May defendant 1988 towas search her and her car for hand, opinion other On the as here narcotics. Detective Pharo Richard of Ma- out, points a number circuits have dison, Wisconsin’s County Intra Narcotics what has to be come known as the and Vice Bureau had investigating been “objective” distinguished as from the “sub 4, her 1988, for some time. On March he determining jective” test in a validity of obtained search a for her warrant house to an arrest. search incident See United registered two automobiles in her Hawkins, (3rd Cir.), 811 F.2d 210 States v. Acting warrant, name. on the search he — U.S. -, denied, 110, 108 cert. S.Ct. pound cocaine, found Vi approximately (1987); 69 98 L.Ed.2d v. States $9,000 cash, in a pistol semi-automatic Nersesian, (2d Cir.), 824 F.2d 1294 cert. drug paraphernalia. Kordosky was arrest- — -, denied, 357, U.S. S.Ct. but, ed clear, for reasons are not (1987); L.Ed.2d and United v. States day released the next and never (5th Cir.1987) (en 834 F.2d 1179 Causey, charged. banc). ap Until Causey, the Fifth Circuit investigation Pharo continued his of her i.e., plied a “reasonable officer” and, mid-April, in learned that driver’s reasonable officer would have license been suspended for two months arrest made the without the motive to from through May March 10th 10th. At search for evidence of another crime. p.m. 10th, May 5:30 on Pharo received word Circuit, The Seventh in United from an informant that intended D’Antoni, (7th Cir.1988), 856 F.2d 975 quickly leave Madison. He arranged a here, opinion case referred to in the not stake-out of her residence see if she arrest found the there not be her car day drive on the last of the suspension. said: She did and the arrest and in opinion described the court’s fol- concedes, government As the it is well p.m. lowed at 7:30 may that an arrest not established be pretext used a mere to avoid the as war- It is difficult to of a pre- conceive more requirement fact, rant of the fourth amend- textual arrest. Magistrate both Judge Groh or ment. United States Crabb found assumed pretextual. the arrest was Pharo’s 76 L.Ed. unit had no responsibility for enforcement generally This rule has been law, of traffic laws. Under Wisconsin confined to certain narrow circumstanc- of operating offense a motor vehicle example, es. law For enforcement suspension after punisha- offense civil suspect, waiting officials follow a for him only by driving fine and further restric- offense, to commit some minor then ar- tions, a minor offense. him and arrest rest use the to collect crime, statements or of another evidence expressly While the does not so may require suppression state, courts it is clear to me that the gained See, way. necessarily evidence in e.g., makes motive irrelevant. in statement D’Antoni Even this court’s mere may Lynn RAMSEY, an not used as a

“that Steven requirement the warrant pretext Petitioner-Appellant, avoid amendment,” 856 F.2d at of the fourth statement is inconsistent BRENNAN, Edward incident to opinion here that a search an Respondent-Appellee. legal long so give information had sufficient officer No. 88-1145. though to arrest even Appeals, United States Court of may have been to his motive Seventh Circuit. crime unrelated to the evidence of a arrest. Submitted 1989. “objective”

The result of test is clear abjuration with the ly inconsistent Decided June Lef an arrest kowitz that be used as “pretext to search for evidence.” It seems that, given diametrically opposed me

interpretations of the fourth amendment in the decisions of the

reflected various frequency

circuits which arises, badly clarification is needed.

issue circuit, rightly

I concur here because this wrongly, any

or has determined that basis justifies regard-

for a valid arrest a search

less of the motive or intent pretextual the If

officer or how arrest is. impression, a matter I

this were adhere the cases Lefkowitz pretextual hold that a arrest is not a

valid basis under the fourth amendment for that, general search for evidence and

accordingly, the search here was invalid. search, inventory I

As to the find it rea- procedure to conclude

sonable by Rickey

used was established department

by and not created

himby alone. Given that this circuit fol- “objective test” to determine

lows the or not a search incident to an Oxford, Wis., Lynn Ramsey, pro Steven legal, subsequent inventory se. However, proper. if search was the arrest Gowey, Atty., L. Sheree Asst. U.S. Madi- unlawful, itself was follow- son, Wis., respondent-appellee. during the evidence seized also search would have CUMMINGS, CUDAHY, Before suppressed poisonous fruit of the POSNER, Judges. Circuit tree. POSNER, Judge. Circuit Lynn Ramsey, prison Steven a federal inmate, claims that he should have received prison sentence for the credit toward his days halfway that he served in a house by before his criminal trial. Arrested