United States v. Cherry, Alan ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3527
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALAN K. CHERRY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1049—Milton I. Shadur, Judge.
____________
ARGUED JUNE 15, 2005—DECIDED FEBRUARY 3, 2006
____________
Before POSNER, COFFEY, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Alan Cherry was caught with a
gun during a traffic stop and later pleaded guilty to posses-
sion of a firearm by a felon, 18 U.S.C. § 922(g)(1). In his
plea agreement, Cherry preserved his right to challenge on
appeal the denial of his motion to suppress the gun, which
was found in the trunk of his car. The propriety of that
search is the only issue before us.
Cherry’s encounter with Joliet, Illinois, police began when
he was stopped on Interstate 80 for speeding and failing to
signal a lane change. Officer Harris testified at the suppres-
sion hearing that he smelled burnt marijuana as he ap-
proached Cherry, who provided a driver’s license but not
2 No. 04-3527
proof of insurance. Harris then walked behind the car to
deliver Cherry’s licence to another officer, Officer May,
while a third officer, Officer Batis, approached the car from
the passenger’s side. Batis testified that from his vantage
point he saw a plastic bag protruding from Cherry’s right-
front pants pocket. Batis gestured to Harris, who testified
that he understood the signal to mean that Batis saw
contraband. The officers directed Cherry to exit the car, and
when he did, according to Harris, the bag of marijuana in
his pants pocket was visible. The officers searched Cherry,
seized the marijuana, and placed him in custody. Harris
then issued three tickets—for speeding, failing to signal,
and driving without proof of insurance—and began complet-
ing a tow sheet to record the condition and contents of
Cherry’s car. At the same time Batis and May began an
inventory search of the car. May found the gun in the trunk.
After he was charged in federal court, Cherry challenged
the admissibility of the gun. He argued that he never
should have been ordered out of his car and searched
because Officer Batis could not possibly have seen the
marijuana while he was still seated in the car. And, Cherry
continued, since the search revealing the marijuana was
unconstitutional, his drug arrest was unlawful and the
inventory search that uncovered the gun was tainted.
Although Cherry was not charged with possession of
marijuana, the district court first addressed its discovery.
The court focused on two photographs, introduced by
Cherry, of a car similar in make and model to his. The
photographs show a front-seat console that the court opined
would have blocked Officer Batis’s view of the plastic bag in
Cherry’s pants pocket. The court also questioned why
Officer Harris testified that he relied on Batis’s observa-
tions as the basis for directing Cherry to exit the car, when
Harris stated in his arrest report and testified that he
himself smelled burnt marijuana. In a tenuous ruling, the
court found Batis not credible and, apparently on that basis
No. 04-3527 3
alone, concluded that the seizure of the marijuana and the
arrest of Cherry did not justify the inventory search that
uncovered the gun. And though the district court never
explicitly discredited Harris or explained why the officers
did not have probable cause to arrest Cherry and search his
car based solely on Harris’s unchallenged testimony that he
smelled burnt marijuana, the court moved on to consider
whether the circumstances of the traffic stop were enough
to authorize the inventory search.
The court observed that the traffic stop and subsequent
revelation that Cherry lacked proof of insurance, under
the written policies of the Joliet Police Department, pre-
vented him from moving his car from its location alongside
the interstate. In this circumstance, the court found,
department policy required that the car be towed. And, the
court continued, when a car is towed “on the authority” of
an officer, department policy also requires an inventory
search. Thus, despite concluding that it must ignore the
marijuana, the court still reasoned that the inventory
search had been authorized. The court, though, explained
that it was denying the motion to suppress based upon the
doctrine of “inevitable discovery.”
Given the district court’s analysis, the parties debate
whether the admission of the gun was justified under the
“inevitable discovery” doctrine, but resort to that doctrine is
unnecessary. The “inevitable discovery” doctrine is a means
for the government to avoid suppression of evidence
obtained as the result of unlawful conduct by the police, see,
e.g., United States v. Brown, 328 F.3d 352, 356-57 (7th Cir.
2003); United States v. Langford, 314 F.3d 892, 895 (7th
Cir. 2002), and for the doctrine to apply the government
must prove by a preponderance that authorities “would
have found the challenged evidence through lawful means.”
United States v. Jones, 72 F.3d 1324, 1334 (7th Cir. 1995)
(emphasis added); see Nix v. Williams, 467 U.S. 431, 444
(1984); United States. v. Pittman, 411 F.3d 813, 817 (7th
4 No. 04-3527
Cir. 2005); United States v. Johnson, 380 F.3d 1013, 1014
(7th Cir. 2004). In this case, however, the government has
always contended that Joliet Police officers did find the gun
through lawful means. We recognize that the government
has inexplicably abandoned reliance on Officer Harris’s
testimony that he smelled marijuana—which seems a
simple and compelling foundation for searching Cherry and
ultimately the car including the trunk, see United States v.
Wimbush, 337 F.3d 947, 950-51 (7th Cir. 2003) (smell of
marijuana gave rise to probable cause for warrantless
search of vehicle revealing marijuana in passenger compart-
ment); United States v. McGuire, 957 F.2d 310, 314 (7th Cir.
1992) (presence of contraband in passenger compartment is
probable cause to search entire vehicle, including trunk, for
additional contraband); see also United States v. Foster, 376
F.3d 577, 583-84, 588 (6th Cir. 2004) (smell of marijuana
coming from vehicle provides probable cause to search
without warrant); United States v. Brown, 334 F.3d 1161,
1173 & n.11 (D.C. Cir. 2003) (discovery of contraband in
passenger compartment “is a factor that strongly supports
the lawfulness of a trunk search”); United States v. Peltier,
217 F.3d 608, 610 (8th Cir. 2000) (smell of burnt marijuana
gave police probable cause to search truck for drugs); cf.
United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993)
(search of trunk reasonable if initial search of passenger
compartment, premised on smell of burnt marijuana,
produces contraband). The government now focuses exclu-
sively on the fact that Cherry lacked proof of insurance
when the police stopped him; his lack of insurance, the
government argues, was a valid basis for conducting the
inventory search even if finding the marijuana on Cherry
was not. But this is an argument that the search of the
trunk was lawful, not an argument—like “inevitable
discovery”—that unlawful conduct should not result in
suppression.
No. 04-3527 5
Inventory searches are a recognized exception to the
warrant and probable-cause requirements of the Fourth
Amendment. United States v. Wilson, 938 F.2d 785, 788 (7th
Cir. 1991). Searches conducted by the police prior to towing
a car are “lawful if conducted pursuant to standard police
procedures aimed at protecting the owner’s property—and
protecting the police from the owner’s charging them with
having stolen, lost, or damaged his property.” Pittman, 411
F.3d at 817. We review a district court’s conclusion that
police officers “followed standard procedure while conduct-
ing an inventory search” for clear error, United States v.
Lozano, 171 F.3d 1129, 1132 (7th Cir. 1999); see also United
States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004); United
States v. Lomeli, 76 F.3d 146, 149 (7th Cir. 1996); United
States v. Privett, 68 F.3d 101, 104 (5th Cir. 1995), but our
review of the reasonableness of the inventory search and
seizure is plenary, see United States v. Grap, 403 F.3d 439,
443 (7th Cir. 2005); United States v. Jackson, 189 F.3d 502,
507 (7th Cir. 1999); United States v. Haro-Salcedo, 107 F.3d
769, 771 (10th Cir. 1997).
We turn first to the district court’s finding that the
written police policies of the Joliet Police Department
authorized the inventory search of Cherry’s car. The court
relied on two written policies. General Order 17-3 requires
an inventory search “[a]ny time a vehicle is towed on the
authority of a member of [the Joliet Police] Department,”
except in the case of a traffic accident. See Gen. Order 17-3,
“Towing Vehicles,” § 1.3 (2003). General Order 17-18, in
relevant part, establishes procedures for enforcing the
Illinois Mandatory Insurance Law (“I.M.I.L.”), 625 Ill.
Comp. Stat. 5/3-707:
5. ENFORCEMENT PROCEDURE
5.1 When a sworn member stops a vehicle for a
traffic law violation or investigation of a
traffic accident, he will request proof of insur-
ance documents from vehicle operators. No
6 No. 04-3527
member will stop a vehicle solely for
the purpose of verifying the existence of a
valid insurance policy.
5.2 If an operator is not driving an exempt vehi-
cle, and cannot or will not provide proof of
insurance documentation, the officer will
then:
A. in addition to any other citations, issue a
citation for violation of Chapter 625 ILCS
5/3-707.
B. cause the vehicle to be left legally parked,
or, at the request of the operator, notify
a tow company of the operator’s choice, if
the operator has a valid driver’s licence.
If, however, the driver does not have a
valid driver’s licence and does not have
proof of insurance, the member must tow
and impound the vehicle. The vehicle will
then be released only upon a showing of
proof of insurance for the motor vehicle
that was impounded and notarized writ-
ten consent of the release by the vehicle
owner.
....
6. TOWING PROCEDURE
6.1 Vehicles will be towed only under the follow-
ing circumstances:
A. when LEADS message information veri-
fies state registration for the vehicle has
been suspended for non-compliance with
the I.M.I.L.
B. If, after being cited for violation of the
I.M.I.L., the driver either drives away or
attempts to drive away.
No. 04-3527 7
C. If a second citation is issued to the same
driver by the same officer during the
same tour of duty.
6.2 If the vehicle is towed, an Offense Report,
and a Vehicle Inventory and Tow Report
are required.
Gen. Order 17-18, “Illinois Mandatory Insurance Law,” §§ 5,
6 (2003). The district court read General Order 17-3 to
require an inventory search when a police officer causes a
car to be towed, and in turn relied on General Order 17-18
to provide officers the authority to order the tow of Cherry’s
car (because without proof of insurance Cherry could not
move his car to a legal parking place).
We cannot say that the district court committed clear
error in finding that the Joliet police officers followed
standard procedure in conducting the inventory search of
Cherry’s car. General Order 17-18 prevented Cherry from
driving his car after the police discovered he lacked proof of
insurance. And, because the car was located alongside the
interstate—where it presented a public safety hazard—the
police were authorized to order it towed to a safe location.1
Their authority to order such a tow in the interest of public
1
Cherry does not argue that police engineered the initial traffic
stop in this case as a “subterfuge for criminal investigations.”
South Dakota v. Opperman, 428 U.S. 364, 371 n.5 (1976). Regard-
less, our interpretation of the Joliet policy would not, as the
dissent posits, allow police to “use the policy on inventory searches
to authorize illegal investigatory searches,” post, at 17, by simply
arranging to stop any motorist alongside the interstate. The
police’s authority to search Cherry’s car rested on his inability to
produce proof of insurance. Had he been able to drive his car after
the routine traffic stop, and had police not pursued the alternate
justification that they smelled burning marijuana, it is unlikely
that the inventory search could have occurred. See Knowles v.
Iowa, 525 U.S. 113, 117 (1998).
8 No. 04-3527
safety is unassailable. See South Dakota v. Opperman, 428
U.S. 364, 369 (1976) (“The authority of police to seize and
remove from the streets vehicles impeding traffic or threat-
ening public safety and convenience is beyond challenge.”);
see, e.g., United States v. Briggs, 273 F.3d 737, 739 (7th Cir.
2001) (truck towed from alongside road because driver’s
license suspended). Moreover, a third written policy intro-
duced by the government, General Order 17-4, provided
unambiguous authority for the police to tow Cherry’s car.
See Gen. Order 17-4, “Illegally Parked, Abandoned and
Inoperable Vehicles,” § 2.4 (2003). The policy states that
“ANY VEHICLE THAT PRESENTS AN IMMEDIATE
HAZARD TO PUBLIC SAFETY WILL BE TOWED” and
defines “immediate hazard” to include a vehicle that
“creates or constitutes a traffic hazard which impedes the
efficient movement of traffic” or “obstructs or may obstruct
the movement of any emergency vehicle.” Id. at §§ 2.4, 1
(capitalization in the original). As the officers testified,
without challenge from Cherry, a car parked alongside an
interstate highway meets this definition.
Cherry urges a different interpretation of the policies,
principally arguing that § 6.1 of General Order 17-18 is
exhaustive as to the circumstances under which a tow is
authorized. That contention, however, ignores that Cherry’s
car was towed not only because he lacked proof of insurance
but also because the car could not be left alongside the
interstate without creating a hazard—a circumstance not
addressed in General Order 17-18. General Order 17-4,
which Cherry does not confront, explicitly addresses parked
vehicles that present a hazard and provided unambiguous
authority to tow Cherry’s car. And, though he may disagree
with the reading given General Order 17-18 by the police
witnesses and the district court, we do not understand why
General Order 17-4 is not dispositive.
The officers’ testimony at the suppression hearing,
moreover, confirms the district court’s view of police policy.
No. 04-3527 9
See Lomeli, 76 F.3d at 149 (relying in part on officer’s
understanding of police policy). Officers Batis and Harris
both testified that the police department’s “common prac-
tice” is to tow illegally parked cars after an officer discovers
the driver lacks insurance. Harris did acknowledge an
alternate reading of the written policy when cross-examined
by Cherry’s attorney, but Batis testified without challenge
that Cherry’s car had to be towed (after an inventory
search) because it was parked illegally. The officers’
testimony strengthens our view that the district court’s
finding was not clearly erroneous.2
Nor was the search unreasonable. “Warrantless inventory
searches of cars in police custody are also proper as long as
the police lawfully have custody of the vehicles.” United
States v. Jensen, 169 F.3d 1044, 1048 (7th Cir. 1999). Here,
again relying on General Order 17-18, Cherry argues that
it was unnecessary for the police to take custody of his car
and trigger an inventory search because, in his view, he had
the option of requesting a towing company (and presumably
specifying the destination of the car). See Gen. Order 17-18,
at § 5.2(B). But, putting aside that Cherry never did say
that he wanted to arrange for a tow himself, the answer is
the same: General Order 17-4, not General Order 17-18,
covers parked vehicles that present a hazard, and General
Order 17-4 directed the police to tow the car. That directive
2
The dissent observes that police “conduct cannot fill a gap in the
policy” because, in this case, the police searched Cherry’s car
“because they were looking for marijuana.” Post, at 18. The
officers, though, testified to the department’s “established routine”
for such stops. See Florida v. Wells, 495 U.S. 1, 4 (1990); United
States v. Lozano, 171 F.3d 1129, 1132 (7th Cir. 1999); United
States v. Duguay, 93 F.3d 346, 350-51 (7th Cir. 1996). Their
testimony—that cars like Cherry’s are towed as a mat-
ter of practice—is consistent with our interpretation of Joliet
policy.
10 No. 04-3527
does not compel the officers at the scene to invite or accept
input from the motorist as to the appropriate disposition of
his vehicle, nor does the Fourth Amendment demand that
police offer a motorist an alternative means of removing his
vehicle that will avoid the need to tow it and conduct an
inventory search.3 See Colorado v. Bertine, 479 U.S. 367,
373-74 (1987) (police need not give motorist “an opportunity
to make alternative arrangements” that avoid impound-
ment); Illinois v. Lafayette, 462 U.S. 640, 647 (1983) (“The
reasonableness of any particular governmental activity does
not necessarily or invariably turn on the existence of
alternative ‘less intrusive’ means.”); Privett, 68 F.3d at 104(finding search within inventory exception to Fourth
Amendment, even though vehicle could have been towed to
motorist’s home rather than impound lot); United States v.
Skillern, 947 F.2d 1268, 1275-76 (5th Cir. 1991) (police not
required to offer motorist alternative to impoundment); cf.
United States v. Penn, 233 F.3d 1111, 1116-17 (9th Cir.
2000) (absent policy requiring consent of owner for search,
police need not allow motorist to remove property from car
prior to routine inventory search). Thus, even if events
conspired to deprive Cherry of the opportunity to request a
specific towing company, no Fourth Amendment violation
has occurred; the police were free to tow his hazardously
parked car pursuant to their standard policy, in furtherance
of their “community caretaking” function. See Cady v.
Dombrowski, 413 U.S. 433, 441 (1973); see Opperman, 428
U.S. at 375-76; Lomeli, 76 F.3d at 148 (7th Cir. 1996).
AFFIRMED.
3
We decline to reach the hypothetical suggested by the dissent,
post, at 19. The record does not show that Cherry requested that
a specific company tow his car to his home, or elsewhere. Colorado
v. Bertine does not require the police to offer that alternative, see
479 U.S. 367, 373-74 (1987), and thus we need not decide whether
police would have a valid interest in conducting an inventory
search of a car under those circumstances.
No. 04-3527 11
POSNER, Circuit Judge, dissenting. Police who lawfully
impound a car or other vehicle have a right to search
it stem to stern in order to take an inventory of its con-
tents, because they’re responsible for those contents for as
long as the car and its contents are in their custody.
Colorado v. Bertine, 479 U.S. 367, 373 (1987) (“by secur-
ing the property, the police protected the property from
unauthorized interference. Knowledge of the precise nature
of the property helped guard against claims of theft,
vandalism, or negligence. Such knowledge also helped to
avert any danger to police or others that may have been
posed by the property”); South Dakota v. Opperman, 428
U.S. 364, 372-73 (1976); United States v. Pittman, 411 F.3d
813, 817 (7th Cir. 2005) (“warrantless inventory searches of
vehicles are lawful if conducted pursuant to standard police
procedures aimed at protecting the owner’s property—and
protecting the police from the owner’s charging them with
having stolen, lost, or damaged his property”). Whatever
they see in the course of a lawful inventory search, as in
any other lawful search, they can seize and use as evidence
against the car’s owner.
Cherry was stopped by police for speeding and for chang-
ing lanes without signaling. A stop for a routine traffic
offense (as distinct from a lawful custodial arrest of the
driver or an occupant, Thornton v. United States, 541 U.S.
615, 617 (2004); United States v. Pittman, supra, 411 F.3d
at 815-16) does not justify a search of the car. Knowles v.
Iowa, 525 U.S. 113, 117-18 (1998); United States v.
Garcia, 376 F.3d 648, 650 (7th Cir. 2004); Ochana v. Flores,
347 F.3d 266, 270 (7th Cir. 2003). But one police officer
testified that when he approached the car after pulling it
over he saw a bag of marijuana, and a second officer
testified that he smelled marijuana; so the police searched
the car and in the trunk found a gun. The district judge
disbelieved the testimony of the officer who said he had
seen a bag of marijuana, but without considering the
12 No. 04-3527
credibility of the other officer held the seizure of the gun
legal on the ground that the police would have impounded
the car after stopping it for the traffic offenses because
Cherry had no proof of liability insurance, and that having
impounded it the police would have conducted a lawful
inventory search, which would have turned up the gun.
Florida v. Wells, 495 U.S. 1 (1990), holds that inventory
searches are proper only when they are conducted pursuant
to “standardized criteria” or “established routine.” Id. at 4;
see also Colorado v. Bertine, supra, 479 U.S. at 374 n. 6,
375-76; South Dakota v. Opperman, supra, 428 U.S. at 374-
76; United States v. Wilson, 938 F.2d 785, 788-90 (7th Cir.
1991); United States v. Bullock, 71 F.3d 171, 177-78 (5th
Cir. 1995); United States v. Marshall, 986 F.2d 1171, 1175
(8th Cir. 1993). That makes it sound as if the constitutional-
ity of the search depends on whether the police have
complied with local law. But that can’t be right. If the local
law violates the Constitution, compliance with the local law
cannot justify the search; and if a search is reasonable
within the meaning of the Fourth Amendment, the fact that
it violates local law does not give the defendant a federal
remedy. United States v. Delaporte, 42 F.3d 1118, 1119 (7th
Cir. 1994); Gordon v. Degelmann, 29 F.3d 295, 300-01 (7th
Cir. 1994); United States v. Clyburn, 24 F.3d 613, 616-17
(4th Cir. 1994). An inventory search might not be autho-
rized by a policy, but if the search conducted by the police
was in fact a reasonable inventory search—maybe they
searched the car because they feared being accused of
stealing the owner’s property— there would be no basis for
a constitutional objection.
The cases like Wells that emphasize standardized criteria,
standard procedures, established routine, and the like
worry that in the absence of formal procedures determining
the metes and bounds of inventory searches, police officers
would search cars at will for evidence of crime and if
challenged say they were conducting an inventory search.
No. 04-3527 13
The inventory search would then be “a pretext concealing
an investigatory police motive.” South Dakota v. Opperman,
supra, 428 U.S. at 376. “[A]n inventory search must not be
a ruse for a general rummaging in order to discover incrimi-
nating evidence.” Florida v. Wells, supra, 495 U.S. at 4.
Compliance with established procedures is merely a ruse
antidote. “[A] locally followed practice gives some assurance
that a particular car was not singled out for special search-
ing attention. Absent such assurance some special reason
for the taking of safeguarding or security precautions that
are not customarily taken should exist if the intrusion
resulting from the taking of such precautions is to be
rendered reasonable under the fourth amendment.” United
States v. Hellman, 556 F.2d 442, 444 (9th Cir. 1977).
In other words, the absence of a rule creates a presump-
tion that the search was not a bona fide inventory search.
There is no need to go further and insist that inventory
searches always violate the Fourth Amendment unless they
comply with a preexisting rule, and thus to supplement,
Miranda-like, the Constitution in order to make it easier for
the courts to detect constitutional violations. That an
inventory search can violate such a rule without violating
the Fourth Amendment is shown by United States v.
Lomeli, 76 F.3d 146, 149 (7th Cir. 1996). The inventory-
search rule required that inventory searches be conducted
at the scene of the arrest, but the search of Lomeli’s vehicle
was conducted at the police station instead. The court held
that the search complied with the Fourth Amendment
because the motive for violating the rule was simply that
the superior lighting at the police station would enable the
police to better account for and secure any valuables they
might find in the vehicle. The inventory search was not a
pretext for investigation.
Whether the requirement of a preexisting rule is rigid, as
Wells implies, or, as we thought in Lomeli and the Ninth
Circuit thought in the Hellman case, can bend, we must
14 No. 04-3527
examine the Joliet Police Department’s policy governing the
impoundment of vehicles to make sure that an inventory
search would have been the expected sequel to Cherry’s
inability to prove that he had liability insurance; for if not
the inevitable-discovery rule cannot save the search.
This is a difficult inquiry because the department’s policy,
a written policy (it need not be to pass muster, United
States v. Duguay, 93 F.3d 346, 351-52 (7th Cir. 1996);
United States v. Walker, 931 F.2d 1066, 1068 (5th Cir.
1991), but the only policy to which we have been directed in
this case is written), is a mess. The provision that appears
to govern this case is General Order 17-18 § 5.2(B), which
provides that if the driver of a vehicle stopped by the police
can’t produce proof of liability insurance, the police shall
either “cause the vehicle to be left legally parked, or, at the
request of the operator, notify a tow company of the opera-
tor’s choice, if the operator has a valid driver’s license. If,
however, the driver does not have a valid driver’s license
and does not have proof of insurance, [the police officer]
must tow and impound the vehicle.” Cherry had a valid
driver’s license but his car was not legally parked, having
been stopped by the police at the side of a busy highway, so
the first clause of the first sentence in paragraph 5.2(B)
was not applicable. But the second one was, and it says
nothing about impoundment. The car has to be towed, but
why to a police lot unless the police want to search it on the
basis of “suspicion of evidence of criminal activity”?—an
improper motive (unlike the motive in Lomeli) for an
inventory search, Colorado v. Bertine, supra, 479 U.S. at
375, as it has nothing to do with the purposes, quoted from
Bertine above, of such a search. See also United States v.
Duguay, supra, 93 F.3d at 353-54; United States v. Ibarra,
955 F.2d 1405, 1410 n. 5 (10th Cir. 1992).
Granted, we may have gone too far when we said in
United States v. Duguay, supra, 93 F.3d at 353, that “the
decision to impound an automobile, unless it is sup-
No. 04-3527 15
ported by probable cause of criminal activity, is only valid
if the arrestee is otherwise unable to provide for the speedy
and efficient removal of the car from public thoroughfares
or parking lots.” The Supreme Court’s decision in Bertine
suggests that a rule that all towed vehicles shall be im-
pounded is reasonable within the meaning of the Fourth
Amendment; the owner need not be given an opportunity to
make alternative arrangements even if they would protect
the valid interest of the police in shielding themselves from
charges of theft or damage to the owner’s property as well
as from the danger that the vehicle may contain weapons
that might be used against them. Colorado v. Bertine,
supra, 479 U.S. at 373-74.
But Joliet has not gone to the outer limits permitted
by the Court. Its policy says that if the driver can’t pro-
duce proof of liability insurance, the police shall either
“cause the vehicle to be left legally parked, or, at the
request of the operator, notify a tow company of the opera-
tor’s choice, if the operator has a valid driver’s license.” It
does not authorize impoundment when the driver has a
valid license—unless “left legally parked” makes the entire
sentence applicable only to legally parked cars, which is to
say to situations in which the driver, though he could leave
the car where it is, may prefer that it be elsewhere, presum-
ably his home. If so, he can have it towed there instead of
leaving it where it is. (He is not permitted to drive it there
because he lacks proof of insured status.) But that would
leave unaddressed the situation in which the driver, though
he has a valid driver’s license, is parked illegally.
It might be thought that the reason that situation is
left unprovided for is that of course a car can be towed if
it is illegally parked on a public street, General Order 17-4
§ 2.4; and in the usual case there is no one in the car and so
the tow necessarily is arranged by the police and the car is
in their custody and therefore they can conduct an inven-
tory search. South Dakota v. Opperman, supra, 428 U.S. at16 No. 04-3527
375-76; United States v. Pittman, supra, 411 F.3d at 817;
United States v. Kimes, 246 F.3d 800, 804 (6th Cir. 2001).
That is the provision of Joliet’s policy on which the majority
hangs its hat. But the only reason Cherry’s car was illegally
parked was that he’d been pulled over by the police, so he
was present and therefore there was no need for the police
rather than Cherry to handle the tow. It would be boot-
strapping for the police to argue that if they want to search
a car that they’ve stopped for speeding or some other traffic
offense that would not ordinarily justify a search of the car
all they have to do is arrange to stop it in a place where it
cannot be parked legally. That would be to use the policy on
inventory searches to authorize illegal investigatory
searches.
To make matters still more confused, General Order 17-18
§ 6.1 provides that “vehicles will be towed only under the
following circumstances”—and none of them is applicable to
this case. This is in flat contradiction of the preceding
section of General Order 17-18 (§ 5.2(B)). And then there is
General Order 17-3 § 1.3(A), which provides that any time
the police order a car towed, they shall conduct an inventory
search. This is also in conflict with section 5.2(B), which
requires towing if the driver has no proof of insurance, but
impoundment only if, in addition, he doesn’t have a valid
driver’s license (which Cherry, remember, did).
Suppose General Order 17-3 § 1.3(A) takes precedence
and therefore authorizes an inventory search even when the
car is towed to the driver’s home by a tow company sum-
moned by the driver. The district court thought that, if so,
that’s the end of the case. That is incorrect. A police depart-
ment’s policy concerning inventory searches cannot override
the Fourth Amendment. Police cannot demand entry into a
person’s home in order to inventory the contents. An
inventory search has to be in service of a legitimate interest
unrelated to suspicion of criminal activity if it is to comply
with the Constitution. No such interest is engaged if the
No. 04-3527 17
driver is present when the car is stopped, he arranges the
tow, and the car is towed to his home. In such a case there
is no constitutional basis for an inventory search because
the car and its contents are never in police custody. E.g.,
People v. Litchfield, 918 P.2d 1099, 1105-06 (Colo. 1996);
Fortson v. State, 412 S.E.2d 833, 834-35 (Ga. 1992); Caplan
v. State, 531 So.2d 88, 90 (Fla. 1988); cf. United States v.
Edwards, 242 F.3d 928, 938 (10th Cir. 2001).
So this interpretation of Joliet’s policy, which would be
necessary to uphold an inventory search in this case, would
be unconstitutional. The constitutional interpretation would
not justify the search. I said earlier that an inventory
search could be proper even if it didn’t comply with a formal
policy on such searches, but the only justification that could
be offered for an inventory search in this case would be
compliance with Joliet’s policy. The police of course
searched Cherry’s car not because they thought they were
conducting an inventory search but because they were
looking for marijuana, so their conduct cannot fill a gap in
the policy. In sum, then, neither the Joliet policy, nor the
circumstances, justified the police in impounding Cherry’s
car; and without impoundment, there was no justification
for an inventory search of the car.
Two of our cases uphold inventory searches without
discussion of whether the defendant’s car was impounded,
United States v. Bass, 325 F.3d 847, 849-50 (7th Cir. 2003);
United States v. Sholola, 124 F.3d 803, 808, 818 (7th Cir.
1997), but their silence should not be understood to
signify that police can conduct an inventory search even
though they have no grounds for taking custody of the
vehicle. Unless it’s impounded and the owner therefore
deprived of custody of its contents, there is no constitutional
basis for an inventory search. United States v. Privett, 68
F.3d 101, 104 (5th Cir. 1995), says that “the police could
have permissibly conducted an inventory search even if the
car was towed to [the defendant’s] home,” but in the actual
18 No. 04-3527
case it was not towed there. The only reason the court gave
for its statement was “the problem of security of the con-
tents.” If, however, the owner of the car has it towed to his
home by the towing company of his choice, the police have
no valid interest in inventorying the contents because they
are not potentially responsible for any loss of or damage to
them, they are not endangered by the contents, and the
owner has taken it on himself to protect the property from
being damaged or lost en route to his home.
The judgment cannot be upheld on the basis of the district
court’s reasoning. The case should be remanded for a
determination of the credibility of the officer who testified
that he smelled marijuana. If that testimony is credited by
the district judge, there was probable cause to search the
car; if not, not, and the evidence of the gun should be
suppressed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-3-06