United States v. Jose Francisco Andrade

784 F.2d 1431

9th Cir.

1986

Check Treatment

UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco ANDRADE, Defendant-Appellant.

No. 85-3122

United States Court of Appeals, Ninth Circuit.

Decided March 19, 1986.

785 F.2d 1431

Argued and Submitted March 3, 1986.

pretive rules, general statements of policy or rules of agency organization, procedure or practice,” id. (emphasis in original); and (2) “the agency promulgate[d] the rules pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress.” Id.

Section 601.601(d) fails to meet the first prong of the test. The rule must be “legislative in nature, affecting individual rights and obligations.” Id. at 698. As

Rank explicitly notes, statements of policy are not substantive rules. . Section 601.601(d), by its own language, is a policy statement.

We have not specifically addressed the question whether publication in the Code of Federal Regulations gives section 601.601 the force and effect of law. However, the issue has been well settled in other circuits with regard to analogous sections of the IRS Statement of Procedural Rules.

Einhorn v. DeWitt, 618 F.2d 347 (5th Cir. 1980); .

Einhorn, a taxpayer contended that section 601.107(b)(2) imposed a duty on the IRS to disclose information at a preindictment conference. The court held that the only mandatory aspect of the rule was that a taxpayer had a right to a conference. The rule imposed no duty to disclose information. . The court held that section 601.107(b)(2) “is a part of the Internal Revenue Service‘s Statement of Procedural Rules . . . [and as such] their purpose is to govern the internal affairs of the Internal Revenue Service. They do not have the force and effect of law.” . The court held that the IRS did not have to disclose information in spite of the explicit language of the rule stating that the IRS “will” inform the taxpayer. 26 C.F.R. § 601.107(b)(2). Because section 601.601(d) is by its terms a statement of policy, it would not have the force and effect of law under the rationale in .

Luhring, a taxpayer contended that a failure to comply with section 601.105 in-validated an assessment the IRS made against him. The court held that section 601.105 did not have the force and effect of law, and thus noncompliance with it could not invalidate the IRS action. . The court found it apparent that section 601.105 was a rule designed “to govern the conduct of the agents of the Internal Revenue Service. . . . Id. at 564. Because this rule was directory in nature, it did not have force and effect of law. Id.

Section 601.105 is part of the IRS Statement of Procedural Rules as is section 601.601(d). Because section 601.601(d) is explicitly directed at controlling the conduct of the IRS, it does not have the force and effect of law. Accordingly, noncompliance with section 601.601(d) does not invalidate Treas.Reg. § 1.612-3(b)(3).

CONCLUSION

Based on the foregoing analysis, we conclude that Treas.Reg. § 1.612-3(b)(3) is valid and that the Wards’ minimum royalty payment is not deductible.

AFFIRMED.

Kenneth R. Parker, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Jay A. Boelter, Robbins, Brown, Boelter & Amos, Sumner, Wash., for defendant-appellant.

Before WRIGHT, TANG and REINHARDT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Andrade appeals the district court‘s denial of his motion to suppress cocaine found in his garment bag. It concluded that the evidence would have been inevitably discovered in an inventory search. We affirm the order and conviction.

FACTS

Andrade was arrested¹ outside a Seattle hotel by King County police who were working with the Drug Enforcement Agency (DEA). He had been carrying a garment bag which was on the ground by his feet at the time of arrest. The county officers did not search the bag immediately but waited for drug detection dogs. The dog search, about an hour after the arrest, did not alert the police to any contraband.²

An officer then searched the bag and discovered a package of cocaine. The cocaine was not seized, but was returned to the bag. Andrade was taken to a nearby DEA holding facility at Sea-Tac airport. He was booked, the bag was searched, and agent Loveless found the cocaine as part of a routine inventory procedure.

Andrade, indicted on three counts of drug charges, moved to suppress the cocaine found in the garment bag. The motion was denied. Pursuant to Fed.R.Crim.P. 11(a)(2), he entered a conditional guilty plea allowing him to appeal the adverse ruling on his pretrial motion. The government dismissed two counts, and Andrade was sentenced on the third, possession with intent to distribute. Andrade timely appealed the denial of the motion to suppress.

STANDARD OF REVIEW

We review motions to suppress de novo.

United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, .

I. Search Incident to Arrest

Andrade contends the cocaine found in his garment bag should be suppressed because the one hour delay between the arrest and the search made the search unlawful. The government asserts that this delay did not invalidate the search. It contends that

United States v. Johns, ___ U.S. ___, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), has eroded the contemporaneousness requirement of a search incident to arrest.

We need not decide whether the initial search was lawful. We hold that even if the search incident to arrest was unlawful, the cocaine was admissible because it would have been inevitably discovered through a routine inventory search.

Inevitable Discovery

The inevitable discovery doctrine is an exception to the exclusionary rule.

Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). For the exception to apply, the prosecution must show by a preponderance of the evidence that the contraband or other material seized would have been discovered inevitably by lawful means. . We adopted the Nix standard in .

The scope of a permissible inventory search is controlled by

Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). It is not “unreasonable” for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. (emphasis added). There, the police searched the contents of a shoulder bag and discovered drugs during a routine inventory search at the station.

Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.

Id.

This case is controlled by

Lafayette. The government met its burden here and properly showed that the cocaine would have been discovered through a lawful inventory procedure.³ Andrade‘s transfer to the DEA‘s holding facility at Sea-Tac for processing was inevitable, as was the search of his belongings, including the garment bag. The routine booking procedure and inventory would have inevitably resulted in discovery of the cocaine. The contents of Andrade‘s garment bag are within the scope of an inventory search.

CONCLUSION

Because it is normal DEA procedure to inventory defendant‘s possessions, including a garment bag, at the time of booking, the government has shown that by preponderance of the evidence the cocaine would have been inevitably discovered. Therefore, the evidence was properly admitted under the inevitable discovery doctrine as an exception to the exclusionary rule.

AFFIRMED.

REINHARDT, Circuit Judge, specially concurring:

In my view, the outcome of this case is compelled by the confluence of

Nix and the language Judge Wright quotes from the majority opinion in . Nevertheless, we should pause to mark the passing of still another important part of the protection that the Fourth Amendment was intended to afford. Compare . The result we are required to reach will serve only to encourage illegal and unconstitutional searches.

Notes

Andrade‘s arrest was based on probable cause, and he does not challenge the validity of the arrest on appeal.

At the time of the arrest, DEA agent Loveless was investigating inside the hotel. He left the hotel shortly after Andrade was placed in custody to investigate Mrs. Andrade‘s arrival at the airport and to meet Andrade for processing at the DEA Sea-Tac facility. Agent Loveless was not present when the bag was searched at the scene of the arrest.

There was an actual inventory search conducted at the DEA facility. However, the district court correctly noted that the inevitable discovery doctrine requires only that the government show the evidence would have been discovered inevitably by lawful means. Actual discovery of the challenged evidence is not required.