UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRANDON LEE ALEXANDER, Defendant-Appellant.
No. 19-5607
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: April 1, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0103p.06. Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:18-cr-00034-13—J. Ronnie Greer, District Judge. Before: STRANCH, BUSH, and LARSEN, Circuit Judges.
COUNSEL
ON BRIEF: Jerry W. Laughlin, LAUGHLIN, NUNNALLY, HOOD & CRUM, PC, Greeneville, Tennessee, for Appellant. J. Christian Lampe, UNITED STATES ATTORNEY‘S OFFICE, Greeneville, Tennessee, for Appellee.
JANE B. STRANCH, Circuit Judge. In this
I. BACKGROUND
Detective Pete Shockley of the Morristown Police Department (“MPD“) was investigating whether methamphetamine was being sold at 712 Baker Street, Morristown, Tennessee—home to the mother of Brandon Alexander. During the investigation,
The next search occurred on May 3, 2017. Shockley, again posted outside 712 Baker Street, saw Alexander leave the house—this time in a Lincoln—and called ahead to a different officer, who then made a traffic stop. Shockley arrived and arrested Alexander pursuant to a warrant for possessing the firearm found on April 25 and for driving on a suspended license. When asked if the officers could search the Lincoln, Alexander responded, “I don‘t care,” although he later testified that this statement did not constitute consent to conduct the search. Shockley again performed a roadside search of the full vehicle, and the Lincoln was towed pursuant to MPD policy. This time he found a WD-40 container with a false bottom that contained 113 grams of methamphetamine.
A federal grand jury indicted Alexander on two counts of possession with intent to distribute methamphetamine, in violation of
Alexander seeks review of the district court‘s denial of his motions to suppress the evidence obtained from the vehicle searches and of his classification as a career offender.
II. ANALYSIS
A. Standard of Review
“When reviewing [a] district court‘s ruling on a motion to suppress, we
B. Discussion
1. Motions to Suppress
The district court denied Alexander‘s motions to suppress evidence discovered on April 24 and May 3, 2017, on the basis that the evidence was found during valid inventory searches. An inventory search is a recognized exception to the
In this case, it is undisputed on appeal that MPD had an adequate policy in place for when officers could conduct an inventory search—and that Shockley properly applied the policy as he awaited the tow truck. The parties agree that a policy must be in place governing both when impoundment is proper and the scope of the “actual performance of an inventory search,” such that the search is “sufficiently tailored to only produce an inventory.” Hockenberry, 730 F.3d at 659 (quoting Jackson, 682 F.3d at 455). “In conducting an inventory search, officers do not enjoy their accustomed discretion; they simply follow the applicable policy.” Tackett, 486 F.3d at 232. In Wells, the record contained no evidence that the Florida Highway Patrol had a policy addressing whether closed containers should be opened during a vehicle search; “absent such a policy,” the Supreme Court held, the “search was not sufficiently regulated to satisfy the
Alexander argues that there was no MPD policy that specified the scope of inventory searches—how they were to be conducted—and that an officer‘s discretion
Our caselaw does not require a police department‘s inventory search practices to be maintained in a written policy. See Tackett, 486 F.3d at 233. Wells and its Sixth Circuit progeny, however, are clear that there must be some set of guiding principles that govern the scope of inventory searches. Wells, 495 U.S. at 4. Police departments have wide latitude in devising such regulations, see id., but some parameters are necessary so that the scope of the search does not fall to roadside discretion. See, e.g., Jackson, 682 F.3d at 455-56 (outlining the scope of a permissible inventory search pursuant to Akron, Ohio, Police Department regulations). Here, there is no department-issued inventory search regulation in the record and Shockley testified only to his own practice for conducting inventory searches “from cab to trunk.” His testimony did not mention any standard procedures for how inventory searches are performed. Hockenberry, 730 F.3d at 659; Marshall, 986 F.2d at 1175. Even though there existed regulations governing when inventory searches were permissible, there were no established procedures that governed how the inventory searches were to be conducted.2 Without any evidence of “standardized criteria” or “established routine” governing the scope of the inventory searches, we must conclude that the searches were conducted with “uncanalized discretion.” Wells, 495 U.S. at 4. The Constitution requires stricter limits. Id. The inventory search exception to the requirement of a warrant does not apply here.
The question remains, however, whether a different exception to the warrant requirement applies to Shockley‘s actions. The Government argues that the evidence obtained on April 24 would inevitably have been discovered. See Nix v. Williams, 467 U.S. 431, 440-48 (1984). The inevitable-discovery doctrine requires us to determine, “viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.” United States v. Kennedy, 61 F.3d 494, 498 (6th Cir. 1995) (quoting United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992)). Because the officers planned to arrest Alexander for driving on a suspended license on April 24, the Government contends that police would have found the drugs in his waistband, which would have led to a subsequent
The inevitable-discovery doctrine salvages the April 24, 2017 search. Shockley said he intended to arrest Alexander for driving on a suspended license, undisputedly an arrestable offense. Although the vehicle search occurred before Shockley‘s discovery of the drugs in Alexander‘s waistband, he inevitably would have discovered the methamphetamine when he arrested Alexander. That discovery in these circumstances would have justified the vehicle search under at least one of the Government‘s alternative theories. Assuming that, upon finding the methamphetamine, police would have arrested Alexander for drugs as well as the driving infraction, the vehicle search was a valid search incident to arrest. Police may conduct a search of a vehicle incident to a lawful arrest “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‘” Arizona v. Gant, 556 U.S. 332, 343, 347 (2009) (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in judgment)); see also United States v. Bennett, 439 F. App‘x 501, 504 (6th Cir. 2011). Here, it would have been reasonable for Shockley to conclude that relevant evidence relating to the drug arrest might also be in the vehicle, which would have provided a valid basis for the search.
Alternatively, the methamphetamine—viewed in conjunction with the bag of money visible to Shockley from outside the vehicle—would have established the probable cause necessary to conduct a search of the vehicle pursuant to the automobile exception. See California v. Carney, 471 U.S. 386, 392-93 (1985); United States v. Lyons, 687 F.3d 754, 770 (6th Cir. 2012) (“Under the automobile exception to the warrant requirement, an officer may perform a warrantless search of a detained vehicle should the officer have probable cause to believe the vehicle contains contraband or evidence of criminal activity.” (citing Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998))).
Although the April 24 roadside search was not a valid inventory search, the inevitable-discovery doctrine applies because the evidence obtained would have been discovered by a search that was justified as incident to a lawful arrest or pursuant to the automobile exception.
Alexander next asserts that the warrant for the locked safe taken from the vehicle on April 24 was not supported by probable cause. It is well-established that a search warrant must be based on facts that demonstrate “a fair probability that evidence of a crime will be located on the premises of the proposed search.” United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)). There must be a “nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)). Shockley‘s affidavit described the evidence that was found on April 24 alongside the safe: $11,560 in cash, methamphetamine, and digital scales. Based on all the facts, a judge found there was probable cause that the safe contained “evidence pertaining [to] illegal drug possession, illegal drug sales, illegal drug manufacturing . . . and possible weapons.” Considering all the factual background and that the locked safe was found in the car with drugs and a large
Turning to the May 7, 2017 search, the Government contends that Alexander consented to the search by responding “I don‘t care” to Shockley‘s request to search the vehicle. At the suppression hearing, Alexander testified, that “I didn‘t consent or refuse.” “The government bears the burden of demonstrating by a preponderance of the evidence, through ‘clear and positive testimony,’ that the consent was voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” United States v. Canipe, 569 F.3d 597, 602 (6th Cir. 2009) (citation omitted) (quoting United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999)). Whether the defendant provided consent “is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). And the district court‘s factual determination will be disturbed only if it was clearly erroneous. United States v. Calhoun, 49 F.3d 231, 234 (6th Cir. 1995).
Though the magistrate judge upheld the May 7 search based on the inventory search exception to the warrant requirement, it found wanting Alexander‘s contention that he did not consent to the search. “At the hearing,” the magistrate judge explained, “Alexander attempted to clarify what he meant by . . . ‘I don‘t care,’ claiming that he was responding ‘to another statement Detective Shockley had made about ‘going through what he went through’ during the last traffic stop.” The magistrate judge found Alexander‘s explanation to be “disingenuous” and “his testimony to be incredible regarding this issue.” Nothing in the record shows the finding that Alexander consented to the search to be clear error. We therefore affirm the denial of Alexander‘s motion to suppress the items found during the May 7 vehicle search.
2. Sentencing Challenges
Alexander challenges his career-offender classification. In United States v. Havis—decided after Alexander was sentenced—we held that attempt crimes do not qualify as controlled substance offenses under
For the foregoing reasons, we AFFIRM Alexander‘s convictions but VACATE his sentence and REMAND the case to the district court for resentencing.