United States v. Stitt , 382 F. App'x 253 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4401
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OTIS LEE STITT,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:08-cr-00108-RGD-TEM-1)
Argued: May 14, 2010 Decided: June 8, 2010
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Niemeyer joined.
ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Norfolk,
Virginia, for Appellant. Elizabeth Bartlett Fitzwater, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
A federal grand jury indicted Otis Lee Stitt on five drug
and firearm charges. Pursuant to his conditional guilty pleas
on four of the counts against him, Stitt now appeals the denial
of his pretrial suppression motion. We affirm.
I
At approximately 2 a.m. on February 29, 2008, Portsmouth,
Virginia, Police Officer Hawes observed a blue Acura traveling
on Portsmouth Boulevard at 67 miles per hour in a posted 35
miles per hour zone. As Officer Hawes pulled in behind the
Acura to make a traffic stop, he saw the driver and sole
occupant, later identified as Stitt, make a lifting motion above
the center console. Stitt then pulled the Acura into the
parking lot of a “gentleman’s club” named Magik City, which is
in a high-crime area. Stitt parked the Acura across multiple
parking spaces in a manner that blocked vehicular traffic within
the parking lot.
Once parked, Stitt exited the Acura. In doing so, he shut
and locked the door behind him, leaving the keys plainly visible
on the floorboard. Officer Hawes instructed Stitt to return
inside the Acura, but he refused.
As Officer Hawes inspected Stitt’s license and began to
issue traffic summonses for reckless driving and driving with a
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suspended license, other Portsmouth police officers (acting as
backup) stood with Stitt outside the Acura. Throughout this
time, Stitt repeatedly placed his hands in his pockets,
fidgeted, and glanced around. After one of the officers
instructed him to stop moving his hands, Stitt reached into his
pocket and removed a knotted plastic baggie. He placed the
baggie into his mouth, bit off the end, and discarded the
remainder on the ground. The officer then attempted to place
Stitt into investigative detention, but Stitt broke free and ran
from the scene. During the ensuing foot-chase, Stitt ran into
and over a Magik City employee, causing the employee to strike
his head on the concrete. The officers eventually apprehended
Stitt several hundred feet from the Acura, and they placed him
under arrest in the back of one of the police cars for driving
with a suspended license, obstruction of justice, and simple
assault.
After Stitt was arrested, Officer Hawes observed the Acura
keys in plain view on the vehicle floor, and he unsuccessfully
attempted to open the Acura. At this point, Officer Hawes
decided to impound the Acura, and he called for a tow-vehicle
and a lockout kit. When the tow-vehicle arrived, Officer Hawes
used the lockout kit to unlock the Acura, and he searched it,
finding in the center console a loaded .45 caliber handgun and
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what he believed to be numerous individually packaged rocks of
crack cocaine.
The Portsmouth Police Department General Orders Manual
provides in a section titled “Towing and Impounding of Vehicles”
that the department “may tow or impound a vehicle for
investigative purposes, to protect the vehicle and its contents,
and other public safety concerns.” J.A. 28. This section
defines “impound” as “[a]ny vehicle that is taken by a wrecker
to the City of Portsmouth Vehicle Impound lot,” J.A. 28, and it
sets forth situations in which a vehicle is normally impounded,
including vehicles that “are illegally parked and require
immediate removal,” J.A. 29. In a section titled “Vehicle
Searches and Inventories,” the Manual states that the department
“will inventory the contents of all vehicles impounded for any
reason.” J.A. 32.
II
Based on the February 29 traffic stop, Stitt was indicted
on four counts: (1) using and carrying a firearm during and in
relation to a drug trafficking crime; (2) possession with intent
to distribute cocaine base; (3) possession with intent to
distribute cocaine hydrochloride; and (4) being a felon in
possession of a firearm. He was also indicted on a separate
count of possession with intent to distribute cocaine base.
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Before trial, Stitt moved to suppress the evidence obtained
by the police during the traffic stop, contending that the
warrantless search of the Acura violated his rights under the
Fourth Amendment. Specifically, he argued that there was
insufficient cause for the police to detain him and, therefore,
the search incident to his arrest was unlawful. He also argued
that the impoundment and inventory search of the Acura was
merely a pretext for an investigatory search. Following an
evidentiary hearing, the district court rejected both of Stitt’s
arguments and denied the suppression motion.
Having lost the suppression motion, Stitt (with the consent
of the government and the district court) conditionally pled
guilty to the four counts arising from the traffic stop. He
also pled guilty (unconditionally) to the fifth count of the
indictment. The district court sentenced him to 180 months of
imprisonment.
III
In considering an appeal from the denial of a suppression
motion, we review a district court’s findings of fact for clear
error, and we construe the evidence in the light most favorable
to the government. United States v. Colonna, 511 F.3d 431, 434
(4th Cir. 2007). We review the district court’s legal
conclusions de novo. Id.5
Stitt contends, as he did below, that the search of the
Acura violated the Fourth Amendment because it was neither a
proper search incident to his arrest nor a proper inventory
search. In response, the government presents several bases it
contends warrant affirmance. Although we likely could affirm
the denial of the suppression motion on any of the bases
presented by the government, we need only address one: the
inventory search of the Acura.
“The Fourth Amendment generally requires police to secure a
warrant before conducting a search.” Maryland v. Dyson, 527
U.S. 465, 466 (1999). One exception to the warrant requirement
arises when a proper inventory search is conducted. United
States v. Banks, 482 F.3d 733, 738-39 (4th Cir. 2007). “An
inventory search is the search of property lawfully seized and
detained, in order to ensure that it is harmless, to secure
valuable items (such as might be kept in a towed car), and to
protect against false claims of loss or damage.” Whren v.
United States, 517 U.S. 806, 811 n.1 (1996). To be valid, an
inventory search must be conducted in good-faith according to
standardized criteria, such as a police-department uniform
inventory search policy, and this criteria “must curtail the
discretion of the searching officer so as to prevent searches
from becoming ‘a ruse for a general rummaging in order to
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discover incriminating evidence.’” Banks, 482 F.3d at 739(quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).
The district court found that Officer Hawes acted
reasonably in impounding the Acura. The court further found
that he followed standardized department procedure in searching
the Acura and that there is no evidence that the search was
merely a pretext to discover incriminating evidence. These
findings are amply supported by the record, as the undisputed
evidence establishes that Stitt was validly arrested, the Acura
was parked in a high-crime area in a manner that blocked traffic
in the parking lot, the keys were plainly visible on the Acura
floor, and the Portsmouth Police Department General Orders
Manual mandates an inventory search of all impounded vehicles.
Stitt makes much of the fact that Officer Hawes testified
that he believed when he began the search there was contraband
in the center console of the Acura, arguing that this testimony
proves that the search was for the purpose of obtaining
incriminating evidence. Given the fact that Officer Hawes had
observed Stitt appear to close the center console as he was
being pulled over, as well as the fact that a search of the
Acura incident to the arrest was permissible at the time of the
arrest (i.e., before Arizona v. Gant, 129 S. Ct. 1710 (2009)),
it is not at all surprising that the officer would have begun
the search in the console. In any event, simply because Officer
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Hawes might have had additional legal grounds to search the
Acura apart from the inventory search does not render the
inventory search invalid. See, e.g., United States v. Matthews,
591 F.3d 230, 235 n.7 (4th Cir. 2009) (noting that an officer’s
suspicion that contraband may be present in the vehicle does not
invalidate an otherwise lawful inventory search); United States
v. Stephens, 350 F.3d 778, 780 (8th Cir. 2003) (holding that the
vehicle search “was properly conducted, both as an inventory
search and a search incident to arrest”).
Based on the foregoing, the district court did not err in
concluding that the incriminating evidence was seized during a
lawful inventory search. Therefore, we affirm the order denying
the suppression motion. See, e.g., United States v. Ford, 986
F.2d 57 (4th Cir. 1993) (holding that police lawfully impounded
and conducted an inventory search of a vehicle after a traffic
stop); United States v. Brown, 787 F.2d 929 (4th Cir. 1986)
(holding that police lawfully impounded and conducted an
inventory search of a vehicle parked in a private parking lot
because there was no known individual immediately available to
take custody of the automobile and because it could have
constituted a nuisance in the area in which it was parked).
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IV
The order of the district court denying the suppression
motion is affirmed.
AFFIRMED
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