UNITED STATES оf America, Plaintiff-Appellee v. George HARRIS, Defendant-Appellant.
No. 14-3234.
United States Court of Appeals, Eighth Circuit.
Submitted: May 11, 2015. Filed: July 29, 2015.
820 F.3d 820
In summary, the district court not only failed to articulate the precise interest Dr. Odor had in the outcome of the litigation but also failed to еxplain why any such interest overcomes the general rule that Dr. Odor‘s bias and credibility should be resolved by the jury. Therefore, on the record before us, we find an insufficient basis to exclude Dr. Odor from providing an expert opinion.3
III
For the reasons above, we find the district court erred in excluding Dr. Odor from testifying as Taylor‘s expert witness. Accordingly, we also vacate the district court‘s order granting summary judgment and remand for furthеr proceedings not inconsistent with this opinion.
Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
George B. Harris challenges the denial of his motion to suppress. He argues that the search that uncovered the firearm in his car was an unlawful inventory. Having jurisdiction under
A Kansas City police officer stopped Harris for speeding. Before the stop, the officer saw him reaching below the drivеr‘s seat and center console. Approaching the car, the officer smelled marijuana, but could not determine the source. The officer ordered Harris out of the car and soon found marijuana in Harris‘s wallet. Finding that Harris was driving with a revoked license, the officer arrested him. Because the car was parked on the left shoulder of a highway, the officer called for a tow truck. He inventoried the car, discovering a loaded 9mm semi-automatic handgun under the driver‘s seat. Harris admitted he was a convicted felon, knew the gun was in the car, and had handled it before.
Harris plead guilty to possessing a firearm after having been convicted of three previous violеnt felonies in violation of
Reviewing the denial of a motion to suppress, the court reviews “the factual findings underlying the suppression ruling for clear error, and the court‘s legal conclusions de novo.” United States v. Arrocha, 713 F.3d 1159, 1160 (8th Cir.2013).
The
Harris does not dispute the legality of the stop. He argues that the officer conducted the inventory as a pretext to seize evidence.
The district court1 found that Harris‘s car was towed pursuant to police policy. The department‘s Procedural Instruction оn Towing/Protective Custody of Vehicles states that, in the officer‘s discretion, a vehicle may be towed when the “driver of any vehicle is taken into custody by the police department and such vehicle would thereby be left unattended upon a street or highway.” The city requires a content inventory for all towed vehicles. The tow-in report must describe, among other things, the vehicle, any damage to it, and its contents.
Harris asserts that the police officer had too much discretion in deciding whether to tow his vehicle. Nothing “prohibits the exercisе of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Colorado v. Bertine, 479 U.S. 367, 375 (1987). See United States v. Petty, 367 F.3d 1009, 1012 (8th Cir.2004) (“an impoundment policy may allow some exercise of judgment by a police officer when those decisions are based on concerns related to the purposes of an impoundment“).
Harris further claims that the officer was really looking for incriminating evidence, not performing a caretaking function, because the officer bеlieved he had probable cause to search for incriminating evidence based on the marijuana in Harris‘s wallet. “The policе are not precluded from conducting inventory searches when they lawfully impound the vehicle of an individual that they also happеn to suspect is involved in illegal activity.” United States v. Pappas, 452 F.3d 767, 771 (8th Cir.2006). See Petty, 367 F.3d at 1013 (same); United States v. Garner, 181 F.3d 988, 991 (8th Cir.1999) (same). Rather, when police are conducting “inventory searches according to such stаndardized policies, they may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate a crime.” United States v. Marshall, 986 F.2d 1171, 1176 (8th Cir.1993). “Something else must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant‘s vehicle.” United States v. Taylor, 636 F.3d 461, 465 (8th Cir.2011). In Taylor, that “something else” wаs the officer‘s admission that the sole basis for the traffic stop, arrest, towing and inventory search was her belief that the vehicle cоntained narcotics. See id. Here, Harris claims only that the police were motivated in part by the desire to search for evidеnce. An inventory search that follows standard police procedures is generally not
Harris also asserts that the tow-in report does not list “one thing” found in his car and simply checks off eight areas of minor damage, showing a lack of interest and seriousness in the caretaking function. In fact, the tow-in report notes a radio and CD player in the car, as well as standard hubcaps. More importantly, Harris fails to note any errors in the report. Harris invokes the Taylor case. However, there the offiсer found hundreds of tools, several pieces of equipment, clothing, toiletries, and paper, but wrote only the two words “misc. tools” on the tow-in report. Taylor, 636 F.3d at 463. Here, there is no such evidence.
The judgment is affirmed.
BENTON
CIRCUIT JUDGE