United States v. Swan , 259 F. App'x 656 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2007
No. 06-31079 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff–Appellee
v.
MICHAEL BRADY SWAN
Defendant–Appellant
Appeal from the United States District Court
for the Western District of Louisiana
No. 5:06-CR-50014
Before DEMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Michael Swan appeals his conviction and sentence on drug and weapon
charges. Swan challenges the district court’s order denying his motion to
suppress evidence discovered in his vehicle following a traffic stop. He also
contends that the district court erroneously grouped two counts for sentencing
purposes. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-31079
I
Swan, a multiple felon, was indicted after a loaded Glock pistol, four hand-
made explosive devices, and 196 grams of seven different drugs (mostly
methamphetamine) were found during a search of his vehicle following a traffic
stop. Swan ultimately entered a conditional guilty plea on three counts of a four-
count indictment charging him with (1) being an armed career criminal in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1)
(Count 1); (2) possession with intent to distribute more than 50 grams of a
mixture or substance containing a detectable amount of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) (Count 2); and (3) possession of a firearm
during and in relation to a drug-trafficking offense in violation of 18 U.S.C.
§ 924(c)(1) (Count 3). A fourth count involving possession of unregistered
grenades in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 was dismissed
based on Swan’s cooperation with related investigations.
Before pleading guilty, Swan moved to suppress the drugs, gun, and
explosives along with all post-arrest inculpatory statements. Swan argued that
his car was illegally searched without a warrant, consent, or probable cause. He
moved to suppress his post-arrest statements on the grounds that those
statements (1) were fruit of the poisonous tree, (2) were not made voluntarily,
and (3) were given in exchange for a promise of immunity from the armed career
criminal charge (Count 1) if he cooperated. Swan did not elaborate on the latter
two arguments. The Government conceded that there was no valid warrant and
no consent to search Swan’s vehicle but argued that the search was nevertheless
valid pursuant to: (1) the automobile exigent circumstances exception; (2) a
search incident to arrest following custodial arrest for traffic violations and
marijuana possession; (3) probable cause; (4) the plain view exception; (5) the
inventory search exception; and (6) inevitable discovery. Following an
evidentiary hearing, at which a videotape recording of the traffic encounter was
2
No. 06-31079
admitted, the district court agreed with a magistrate judge’s recommendation
to deny the motion to suppress. Swan’s conditional guilty plea, which preserved
his right to appeal the suppression issue,1 was entered shortly thereafter.
In the presentencing report (PSR), Count 1 (armed career criminal in
possession of a firearm) was grouped with Count 2 (drug trafficking) as “closely
related counts” that “involve the same victim and the same act or transaction”
pursuant to sections 3D1.1(a)(1) and 3D1.2(a) of the Sentencing Guidelines.2
Count 3 (possession of a firearm in connection with a drug trafficking offense)
could not be grouped because that offense carried a mandatory five-year
consecutive sentence.3 Counts 1 and 2 each carried an adjusted offense level of
29, after a three-point acceptance-of-responsibility reduction, but because Swan
was an armed career criminal, the base offense level for the grouped counts was
elevated to 34 pursuant to section 4B1.4(b)(3)(A) of the Guidelines.4 After the
acceptance-of-responsibility reduction, the total offense level for the grouped
counts was 31.5 Applying a level VI criminal history category, Swan’s guideline
sentencing range on the grouped counts was 188-235 months.
1
See FED. R. CRIM. P. 11(a)(2).
2
U.S. SENTENCING GUIDELINES MANUAL § 3D1.2(a) (Nov. 1, 2005) (“USSG”).
3
See id. § 3D1.1(b)(1) (“Exclude from the application of §§ 3D1.2-3D1.5 [grouping rules]
the following: Any count for which the statute (A) specifies a term of imprisonment to be
imposed; and (B) requires that such term of imprisonment be imposed to run consecutively to
any other term of imprisonment.”).
4
Id. § 4B1.4(a), (b)(3)(A) (“A defendant who is subject to an enhanced sentence under
the provisions of 18 U.S.C. § 924(e) is an armed career criminal. . . . The offense level for an
armed career criminal is the greatest of: . . . 34, if the defendant used or possessed the firearm
or ammunition in connection with either a crime of violence, as defined in § 4B1.2(a), or a
controlled substance offense, as defined in § 4B1.2(b), or if the firearm possessed by the
defendant was of a type described in 26 U.S.C. § 5845(a) . . . .”).
5
See id. (“If an [acceptance-of-responsibility reduction] applies, decrease the offense
level by the number of levels corresponding to that adjustment.”).
3
No. 06-31079
In written objections to the PSR, Swan asserted that Counts 1 and 2 were
improperly grouped because the sentence on Count 3 could only be imposed
consecutively to Count 2, which would have an offense level of 29 if it were not
grouped with the armed career criminal count. The probation officer rejected
Swan’s argument based on statutory language precluding the sentence on Count
3 from being imposed “concurrently with any other term of imprisonment
imposed . . . .”6
At the sentencing hearing, the district judge overruled the grouping
objection, adopted the findings and recommendations in the PSR, and sentenced
Swan to concurrent sentences of 220 months in prison on Counts 1 and 2, a
consecutive 60-month sentence on Count 3, five years supervised release, and a
$300 fine. The district court determined that an upward departure would be
warranted because the level VI criminal history category under represented the
seriousness of Swan’s criminal history and likelihood of recidivism. However,
the court elected not to impose an upward departure, concluding that the 280-
month total sentence resulting from the consecutive sentence on Count 3 was
appropriate.
Swan now appeals the suppression issue and the grouping of Counts 1
and 2. As a corollary to the grouping argument, Swan also makes a perfunctory
challenge to the “reasonableness” of the sentence on Count 2, arguing that 220
months for that offense is not reasonable and that the consecutive sentence on
Count 3 should be appended to a reasonable sentence for Count 2. Swan does
not assert on appeal that his offense levels on Counts 1 and 2 were improperly
calculated or that he was entitled to any other reductions. Likewise, Swan does
not assert error in the criminal history score calculation or assert that his
sentence, or any of its components, exceed statutory maximums. Swan has also
6
18 U.S.C. § 924(c)(1)(D)(ii) (emphasis added).
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No. 06-31079
abandoned his claims that his post-arrest statements were involuntary and that
the Government breached an immunity agreement, but he continues to argue
that his statements must be excluded as a product of an illegal search and
seizure.
II
On appeal from the denial of a motion to suppress, the district court’s fact
findings are reviewed for clear error, “giv[ing] due weight to inferences drawn
from those facts by resident judges and local law enforcement officers.”7 A fact
finding is clearly erroneous if the evidence, viewed in the light most favorable to
the party prevailing below, leads to the “‘definite and firm conviction that a
mistake has been committed.’”8 The district court’s legal conclusions, including
determinations of reasonable suspicion and probable cause, are reviewed de
novo.9
Considering the evidence in the record and the parties’ arguments, we
have little trouble concluding that the discovery of contraband in Swan’s vehicle
was inevitable. As an initial matter, we conclude that the traffic stop was valid
under Terry v. Ohio.10 Under the two-prong Terry inquiry, a traffic stop is valid
if it is (1) justified at its inception and (2) reasonably related in scope to the
circumstances that justified the interference in the first place.11 The District
Court did not err in concluding that the traffic stop was justified at its inception
7
Ornelas v. United States, 517 U.S. 690, 699 (1996).
8
United States v. Lopez-Moreno, 420 F.3d 420, 429-30 (5th Cir. 2005) (quoting Payne
v. United States, 289 F.3d 377, 381 (5th Cir. 2002)), cert. denied, 546 U.S. 1222 (2006).
9
Ornelas, 517 U.S. at 699.
10
392 U.S. 1 (1968).
11
Id. at 19-20; see also United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993).
5
No. 06-31079
by at least one traffic violation, a missing license plate.12 That traffic violation
is undisputed and evident from the videotaped encounter. Contrary to Swan’s
argument, the arresting officer’s subjective motivations for making the stop are
immaterial as long as the stop or detention is objectively justified,13 which in this
case, it plainly was.
The second prong of the Terry test is satisfied if the officer’s actions after
making a legitimate traffic stop were reasonably related to either the
circumstances that justified the stop or to dispelling reasonable suspicion
developed during the stop.14 A Terry “‘detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop,’” but if further
reasonable suspicion emerges during the stop and is supported by articulable
facts, detention may continue until the new reasonable suspicion has been
dispelled or confirmed.15 During this brief period of detention, the officer may
examine the driver’s license and vehicle registration, run a computer check on
the driver and the vehicle, and question the driver about a wide range of
matters, including those unrelated to the purpose of the traffic stop.16 There is
no specific prohibition on the scope of permissible questioning “so long as the
overall detention is justified by reasonable suspicion.”17 Moreover, this court has
eschewed any particularized limitations on the permissible investigative tools
that may be utilized in connection with a Terry stop, holding that the relevant
12
Shabazz, 993 F.2d at 435 (“Appellants do not argue, nor could they, that the initial
stop of their vehicle for speeding was improper. This is so whether or not Terry applies.”).
13
Whren v. United States, 517 U.S. 806, 813 (1996); Lopez-Moreno, 420 F.3d at 432.
14
Lopez-Moreno, 420 F.3d at 430-31.
15
Id. (quoting United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc)).
16
Id.17
Brigham, 382 F.3d at 510.
6
No. 06-31079
inquiry is “‘whether the police diligently pursued a means of investigation that
was likely to confirm or dispel their suspicions quickly.’”18
The district court correctly concluded that the second prong of the Terry
test was satisfied. Immediately after Swan’s vehicle was stopped, Swan exited
his vehicle, intercepted the arresting officer, and volunteered that he lacked
insurance on the vehicle. Contemporaneously with this admission, the arresting
officer discovered that Swan’s documents were insufficient to establish
ownership of the vehicle. Based on these circumstances, the arresting officer
was required to impound the vehicle pursuant to LA. REV. STAT. ANN.
§ 32:863.1(C)(1)(a), which states “[i]f the operator of a motor vehicle is unable to
show compliance with the provisions of [the compulsory motor vehicle liability
insurance law] . . ., the motor vehicle shall be impounded.”19 At the suppression
hearing, the arresting officer testified that he intended to impound the vehicle
at this point, but he asked additional questions, including whether Swan had
ever been arrested. Swan admitted he was on parole, and the officer verbally
noted that he reeked of marijuana. The officer then approached the vehicle and
initiated a search, which he characterized as a “frisk” of the vehicle for weapons
prior to initiating impoundment procedures.
Swan does not contend that the length of detention was too long, and we
conclude, in any event, that it was not. The entire encounter between Swan and
the arresting officer lasted approximately five minutes; the initiation of the stop
was justified at its inception; and the officer’s subsequent actions “exemplified
a graduated response to emerging facts,”20 were reasonable under the
18
Id. at 511 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).
19
LA. REV. STAT. ANN. § 32:863.1(C)(1)(a) (emphasis added).
20
Brigham, 382 F.3d at 509.
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No. 06-31079
circumstances and effectuated the objectively justified purpose of the stop. Thus,
both prongs of the Terry test are met.
Although Swan contends that the arresting officer had no cause to search
or even approach his vehicle to conduct a visual inspection, we need not consider
these arguments or the applicability of any of the other asserted exceptions to
the warrant requirement because Swan’s voluntary admission that he lacked
insurance required that his vehicle be impounded, which would have resulted
in an inventory search and, ultimately, the discovery of the drugs and weapons
in the vehicle.
An inventory search is a well-established exception to the Fourth
Amendment’s warrant requirement,21 but it cannot be subterfuge for criminal
investigations. In order to prevent inventory searches from being used as “a
ruse for a general rummaging in order to discover incriminating evidence[,]
. . . inventories [must] be conducted according to standardized criteria”22
“consistent with the proper purpose of a noninvestigative inventory search.”23
While it is true that the arresting officer in this case was not conducting an
inventory search at the time the contraband was discovered, an inventory search
was an inevitable consequence of Swan’s failure to maintain liability insurance
on his vehicle.
Swan does not dispute that his vehicle could lawfully be impounded, and
he does not dispute that an inventory search could be conducted in connection
therewith. Swan argues, however, that the decision to impound the vehicle was
discretionary and thus required some proof regarding the police department’s
21
Colorado v. Bertine, 479 U.S. 367, 371 (1987).
22
United States v. Walker, 931 F.2d 1066, 1068 (5th Cir. 1991) (quoting Florida v.
Wells, 495 U.S. 1, 4 (1990) and Bertine, 479 U.S. at 374 n.6) (internal quotation marks
omitted).
23
United States v. Privett, 68 F.3d 101, 103 (5th Cir. 1995).
8
No. 06-31079
guidelines for exercising that discretion. Section 32:863.1(C)(1)(a) of the
Louisiana Revised Statutes unambiguously states that a motor vehicle lacking
proof of insurance “shall be impounded” and dictates certain procedures that
must be followed in connection therewith.24 Despite this rather clear language,
Swan points out that other language in subsection (C)(1) specifies different
procedures to be employed “[i]n those cases in which a motor vehicle is not
impounded,”25 and he contends that this language indicates that the term “shall”
in subsection (C)(1)(a) may be fairly read as “may.”
Swan failed to cite any Louisiana cases previously considering this issue,
but we are unconvinced that the argument has merit. The Louisiana statute at
issue specifically enumerates circumstances in which an officer has discretion
not to impound a vehicle lacking liability insurance, but those circumstances are
limited and do not apply in this case.26 Although the statute is not a model of
clarity, the language Swan cites more reasonably refers to those specifically
enumerated situations and a plain reading of the statute does not require us to
read the term “shall” in subsection (C)(1) contrary to its ordinary meaning. Were
we to read the term “shall” in (C)(1) as discretionary, it would effectively obviate
the other procedures that the same subsection dictates “shall” be followed when
a vehicle is impounded, which is not a reasonable reading of the statute:
[T]he motor vehicle shall be impounded and the operator shall be
issued a notice of noncompliance . . . such notice may be sent by first
24
LA. REV. ST. ANN. § 32:863.1(C)(1)(a).
25
Id. (C)(1)(a); see also (C)(2).
26
Id. (C)(7) (giving an officer discretion to issue a temporary sticker valid for three
calendar days in lieu of impoundment when a passenger in the motor vehicle is under age
twelve or the driver or a passenger in the motor vehicle is handicapped or when there would
be a threat to public safety or to the occupants in the vehicle under the circumstances); cf. id.
(G)(4) (“The only acceptable means of proof of a valid and current policy of insurance shall be
one of the following: . . . The law enforcement officer making the stop has a reasonable belief
that the motor vehicle is covered by a valid and current policy of liability insurance.”).
9
No. 06-31079
class mail. A copy . . . shall be provided to the towing or storage
company and . . . shall be forwarded to the office of motor vehicles
within three calendar days . . . . The notice . . . shall serve as notice
of administrative hearing rights. In addition, the law enforcement
officer shall remove the license plate. The law enforcement officer
shall deliver the vehicle license plate to the chief of the agency
which employs the officer . . . .27
Thus, contrary to Swan’s argument, the arresting officer was required to
impound the vehicle, which would have resulted in an inventory search and
discovery of the weapons and drugs. Therefore, the weapons and drugs were
admissible under the inevitable discovery exception.28
To the extent Swan contends that there is no evidence concerning the
procedures for conducting an inventory search, Swan is incorrect. The arresting
officer testified that police department policy required the impounded vehicle to
be inventoried, and the appropriate forms completed, before the vehicle could be
released to the towing company. Therefore, the vehicle would have been
inventoried before leaving the scene. The officer further testified that he had the
necessary forms in his vehicle and that it would have been permissible to allow
Swan to remove personal items before impoundment, which would have
necessitated a limited inspection for weapons. Although no written policy was
admitted, there is no requirement that a police department’s inventory policy be
written.29 Moreover, there was no contrary evidence to suggest that the
arresting officer did not follow appropriate procedures for impounding a vehicle.
The district court therefore correctly determined that impoundment of the
vehicle was mandatory and that discovery of the contraband was inevitable.
27
Id. (C)(1)(a); cf. id. § 32:863 (“[W]hen the secretary determines that a vehicle is not
covered by security [as required by law] . . ., he shall revoke the registration of the vehicle,
impound, or cancel the vehicle’s license plate.”).
28
See generally United States v. Lamas, 930 F.2d 1099, 1102-04 (5th Cir. 1991).
29
Walker, 931 F.2d at 1069.
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III
We do not address the merits of Swan’s argument that the district court
erroneously grouped Counts 1 and 2 because the argument in his appellate brief
is conclusory and unsupported by any authority. Swan fails to cite or discuss the
applicable grouping rules, the statutory language governing the consecutive
sentence on Count 3, and any applicable case law. This argument is therefore
waived.30
****
For the foregoing reasons, Swan’s CONVICTION and SENTENCE are
AFFIRMED.
30
See FED. R. APP. P. 28(a)(9) (requiring appellant’s brief to include “the argument,
which must contain . . . appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies”); United States v. Avants, 367
F.3d 433, 442 (5th Cir. 2004) (holding that failure to adequately to brief an issue on appeal
constitutes waiver of that argument).
11