United States v. Glover , 9 F. App'x 167 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4307
MONTE CARL GLOVER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-98-240-MJG)
Argued: April 6, 2001
Decided: May 17, 2001
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Harold Irwin Glaser, Baltimore, Maryland, for Appellant.
Martin Joseph Clarke, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GLOVER
OPINION
PER CURIAM:
Monte Carl Glover, convicted of drug trafficking and sentenced to
151 months incarceration, appeals the district court’s order refusing
to suppress evidence recovered from his automobile. Glover contends
that the impoundment of his car constituted an illegal seizure, and that
this illegality tainted the evidence obtained during a subsequent
search of the car. Although the search itself was conducted pursuant
to a valid warrant, Glover asserts that the district court erred by fail-
ing to suppress the evidence yielded by that search. We disagree, and
for the reasons set forth below, we affirm the district court.
I.
A.
On May 7, 1998, after receiving an anonymous tip, members of the
Baltimore Violent Crime Safe Street Task Force ("Task Force") began
following two men in a black Mazda, later identified as Glover and
his co-defendant, Tyrone Servance. At about 1:10 in the afternoon,
Servance parked the Mazda in the lot of the Spring Valley Apart-
ments in Cockeysville, Maryland, which he and Glover then entered.
The Task Force officers proceeded to watch the apartment building,
meanwhile running a vehicular records check on the Mazda. Their
records check indicated that Servance (the driver) was not the owner
of the Mazda, and that his license had been suspended. The officers
also ran a check on a Nissan Maxima parked next to the Mazda,
which revealed that the Nissan was registered to a Marc Glover, who
shared an address with one of the registered owners of the Mazda.
While conducting their surveillance, the officers spoke to a state
police trooper who lived in the apartment building. The police trooper
recognized Servance by photo and identified him as residing in Apart-
ment L. He also recognized Glover as an occasional visitor to the
apartment.
Later that afternoon, Servance left the apartment building and
drove to a Wendy’s restaurant, where he was observed conducting a
UNITED STATES v. GLOVER 3
suspicious exchange with a woman in another car. After witnessing
the transaction, the Task Force officers advised two uniformed Balti-
more City Police officers that Servance was driving on a suspended
license and could be involved in drug activity. Soon thereafter, the
police arrested Servance for driving on a suspended license. After dis-
covering a stolen handgun on Servance’s person, the police searched
the Mazda and recovered an ammunition clip and 4.5 ounces of crack
cocaine.
Meanwhile, the Task Force officers continued their surveillance of
the apartment building. Glover emerged from the building at 5:42
p.m., drove off in his Nissan, parked in the garage of a local mall, and
then entered the mall.1 At about 8:00 p.m. that evening, while the offi-
cers looked on, an unidentified woman approached Glover’s parked
Nissan and attempted to gain access; when questioned by Task Force
officers, she claimed that she was checking to make sure that the
doors were locked.2 The officers continued their surveillance until the
garage closed, but Glover never returned to his car.
Apprised of Servance’s arrest and the products of the search of Ser-
vance and the Mazda, the officers decided to seek search warrants for
both the apartment and the Nissan. At about 9:30 p.m., without hav-
ing obtained such warrants, the police towed the Nissan from the
garage to the FBI vehicle impoundment lot. Several hours later
(around midnight), a circuit court judge heard the officers’ application
for search warrants covering the apartment and the Nissan. The judge
1
Servance was arrested shortly after Glover’s departure from the apart-
ment complex, and specific information regarding the fruits of that arrest
and the search of the Mazda was conveyed to the officers monitoring
Glover’s Nissan.
2
There is some dispute about how the woman, Dawn Leonard,
explained her decision to check the doors to Glover’s car. At the suppres-
sion hearing, inconsistent statements were introduced as to whether
Glover specifically instructed Ms. Leonard to secure the car, or whether
she just happened to notice his car and decided to check the doors
(knowing that he sometimes left them unlocked). The discrepancy is
inconsequential, since neither explanation would dispel the officers’ rea-
sonable belief that Ms. Leonard was sent as a "decoy" to gauge whether
the car was being watched.
4 UNITED STATES v. GLOVER
issued a warrant as to the apartment, but denied a warrant as to Glov-
er’s car. Armed with a search warrant, the officers immediately com-
menced a search of the apartment, which yielded approximately a
kilogram of crack cocaine, thousands of empty vials, ammunition,
almost $6,000 in cash, two money counting machines, and identifica-
tion in Glover’s name.
Using the additional information discovered from the apartment
search, the officers reapplied four days later (May 12, 1998) for a
search warrant for Glover’s Nissan. This time, a search warrant was
issued.3 Among the items recovered from the ensuing search of the
Nissan were almost 800 vials of crack cocaine, a loaded pistol, sev-
eral pagers, two knives, and a police scanner. Based in part upon this
evidence, Glover was indicted on multiple drug-related charges,
including possession with intent to distribute crack cocaine, conspir-
acy to distribute crack cocaine, and carrying a firearm during and in
relation to a drug trafficking crime.
B.
In a pre-trial motion, Glover sought to suppress the introduction of
physical evidence recovered from the Nissan, on the theory that the
car was seized without probable cause and retained by the authorities
until they could muster enough information to obtain a search war-
rant. The district court, in an order entered on February 8, 2001, ini-
tially granted Glover’s motion to suppress, finding that the officers
lacked probable cause when they impounded the Nissan. Emphasizing
that the authorities "kept the car impounded for four or five days after
the initial impoundment," J.A. 274, the trial judge concluded that "a
detention for that length of time, absent probable cause, simply cannot
be tolerated." Id. at 275.
The Government immediately filed a motion for reconsideration of
the suppression order, stressing that the officers possessed probable
cause to search the Nissan just hours, rather than days, after the alleg-
edly illegal seizure. Once probable cause existed, the Government
asserted, the officers were entitled to search the car — with or without
3
Between the initial denial and eventual issuance of the search warrant,
the Nissan remained parked and secured on the FBI impoundment lot.
UNITED STATES v. GLOVER 5
a warrant. The district court, in a Memorandum and Order filed Feb-
ruary 11, 2001, rescinded its previous order and denied the motion to
suppress. The challenged evidence was then introduced against
Glover at trial, and he was convicted on one of the two drug charges.4
II.
We review the decision of the district court to grant the Govern-
ment’s motion for reconsideration for abuse of discretion. See United
States v. Dickerson, 166 F.3d 667, 678 (4th Cir. 1999) (adopting
abuse of discretion standard for denials of motions for reconsidera-
tion), rev’d on other grounds, 530 U.S. 428 (2000). We observe, how-
ever, that a district court "by definition abuses its discretion when it
makes an error of law." Dickerson, 166 F.3d at 678 (quoting Koon v.
United States, 518 U.S. 81, 100 (1996)). Thus, in reviewing whether
the district court erred in rescinding its earlier suppression ruling, we
must necessarily address the propriety of the original ruling. See
United States v. Herrold, 962 F.3d 1131, 1136 (3d Cir. 1992)
("[B]ecause an appeal from a denial of a motion to reconsider neces-
sarily raises the underlying judgment for review, the standard of
review varies with the nature of the underlying judgment."). Since the
district court’s underlying suppression decision involved an interpre-
tation and application of law, we review it de novo. See id.III.
The question on appeal is whether the district court erred in refus-
ing to suppress evidence obtained from Glover’s car on the basis that
such evidence was "tainted" by the purportedly unlawful impound-
ment of the Nissan. Because the search was conducted pursuant to a
properly issued search warrant — supported by probable cause
acquired independently of the contested impoundment — we con-
clude that the evidence was admissible.
4
Glover was convicted of conspiracy to distribute a controlled sub-
stance, 21 U.S.C. § 846, and possession of a controlled substance with
intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was
acquitted on his related firearm count.
6 UNITED STATES v. GLOVER
A.
Although it did not formally concede this point, the Government
essentially assumed for purposes of appeal that the initial impound-
ment of Glover’s Nissan resulted from an illegal seizure. That is, the
Government has not actively challenged the district court’s assertion
— and the state circuit judge’s implicit finding — that the officers
lacked probable cause "at the time they seized the Nissan and took it
to the FBI impounding lot." J.A. 274. Given the posture in which this
appeal is presented to us, we also assume, without deciding, that prob-
able cause did not exist at the time of impoundment (about 9:30 p.m.
on May 8, 1998).5
Proceeding on this assumption, the authorities indicate that a vehi-
cle cannot be impounded for the purpose of conducting a search in the
absence of probable cause. See, e.g., United States v. DeGuay, 93
F.3d 346, 352 (7th Cir. 1996) ("An impoundment must either be sup-
ported by probable cause, or be consistent with the role as ‘caretaker’
of the streets and completely unrelated to a criminal investigation.").
Although it was permissible for the police officers to maintain a sur-
veillance of and secure Glover’s Nissan, in the absence of probable
cause the impoundment must be regarded as an illegal seizure.
Within hours of Glover’s car being impounded, however, probable
cause developed that clearly would have justified a search of the car.
At about midnight, a warrant to search the apartment was issued and
immediately executed, yielding significant quantities of cocaine and
ammunition, a bulletproof vest, and identification for both Servance
and Glover. The police at that point were equipped with potent evi-
dence that Glover was closely associated with Servance, and that he
frequently visited — and indeed kept personal possessions at — an
apartment that was being used for drug distribution activities. The fact
that Glover had not returned to his car before the mall closed, but
5
We point out, however, that there was ample evidence to support the
officers’ belief that probable cause existed when they impounded the car.
Additionally, if called upon to determine the issue, we would, on this
record, in all likelihood find probable cause present for the impound-
ment.
UNITED STATES v. GLOVER 7
instead ostensibly sent a female decoy to determine whether his car
was being observed, presented further cause for suspicion.6
Thus, by the early hours of May 9, 1998, the officers certainly pos-
sessed probable cause and, under the "automobile exception" to the
Fourth Amendment, could have legally searched the car without a war-
rant.7 See, e.g., Chambers v. Maroney, 399 U.S. 42 (1970) (recogniz-
ing that officers may conduct warrantless searches on a vehicle, even
after it has been impounded, provided it was stopped and seized for
probable cause). That Glover’s car was impounded, and effectively
immobilized, does not remove this situation from the "automobile
exception," or render a warrantless search invalid. See United States
v. Gastiaburu, 16 F.3d 582, 586 (4th Cir. 1994). The police did not
avail themselves of this immediate opportunity, but allowed four days
(including a weekend) to pass before applying for, and receiving, a
valid search warrant for Glover’s Nissan.
B.
In seeking to suppress the Nissan evidence, Glover maintains that
the illegality of its seizure tainted the subsequent search, and that "no
independent evidence was found during the search of the residence
which would vitiate the initial taint stemming from the warrantless
seizure of the Nissan." Appellant’s Br., at 24. In advancing this argu-
ment, Glover misconstrues the independent source doctrine’s applica-
tion to this case. Importantly, the evidence that Glover sought to
suppress was not obtained in the course of the purportedly illegal sei-
6
See supra note 2.
7
The district court, in granting the Government’s motion for reconsid-
eration, nevertheless expressed reservations as to "whether there really
was probable cause for the search." J.A. 286. These reservations, curi-
ously enough, appear to have been predicated on the fact that Glover left
behind a bulletproof vest, and vast quantities of crack, when he left the
apartment. In our view, the apartment’s contents greatly enhance, rather
than diminish, the likelihood that Glover possessed drugs and related
paraphernalia in his car. We are entirely satisfied that a "person of rea-
sonable caution" would believe that contraband would be found in Glov-
er’s car — and, thus, that the search was justified. See United States v.
Jones, 31 F.3d 1304, 1312-13 (4th Cir. 1994).
8 UNITED STATES v. GLOVER
zure. While it is true that, by impounding the Nissan, the police pre-
vented the removal of evidence from inside it, the police derived no
information or evidence from the seizure. We are not presented with
the typical independent source scenario in which the Government
seeks to introduce illegally obtained evidence on the basis that it
would have been discovered through separate, legal means. Rather,
the evidence contested here was obtained pursuant to a valid search
warrant, issued on the basis of information acquired independently of
the seizure.
We therefore must reject Glover’s contention that the evidence was
tainted by the initial illegality so as to require its exclusion as "fruit
of the poisonous tree." Quite simply, the nexus between the arguably
illegal seizure and the search yielding the challenged evidence was
"sufficiently attenuated to dissipate the taint" of the illegal action. See
Segura v. United States, 468 U.S. 796, 815 (1984) (regarding a valid
search warrant to search apartment as a "means sufficiently distin-
guishable" from the officers’ illegal entry to purge the evidence dis-
covered during the search from any taint). In defining the contours of
the exclusionary rule, the Supreme Court has emphasized that "evi-
dence will not be excluded as ‘fruit’ unless the illegality is at least the
‘but for’ cause of the discovery of the evidence." Id. Where the illegal
act — here, the purportedly premature seizure of Glover’s car — does
not contribute to the discovery of the evidence, suppression is unwar-
ranted. See id.As we have emphasized, the police did not acquire any information
about the contents of Glover’s car when they impounded it, and there
was absolutely no causal nexus between the seizure and the subse-
quently issued search warrant. Had the police officers simply main-
tained their surveillance of Glover’s car for several hours and
impounded it after the apartment search had been completed, the car’s
contents would have been discovered and unquestionably admitted.
Instead, based on their good faith belief that they possessed probable
cause, the officers towed the car to a more secure location. This
choice cannot vitiate the subsequently-issued search warrant upon
which the challenged evidence was discovered. See id. at 814 ("Had
the police never entered the apartment, but instead conducted a perim-
eter stakeout to prevent anyone from entering the apartment and
destroying evidence, the contraband now challenged would have been
UNITED STATES v. GLOVER 9
discovered and seized precisely as it was here. The legality of the ini-
tial entry is, thus, wholly irrelevant under [Wong Sun v. United States,
371 U.S. 471 (1963).]").
IV.
Because the evidence challenged here was obtained pursuant to a
valid search warrant issued independently of the seizure of Glover’s
car, we conclude that it was not subject to suppression. Accordingly,
we affirm the district court’s order allowing its admission.
AFFIRMED