United States v. Jocque Ballard

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0537n.06
No. 10-3180 FILED
Aug 03, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE
) NORTHERN DISTRICT OF
JOCQUE D. BALLARD, ) OHIO
)
Defendant-Appellant. )
)
BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Jocque Ballard appeals his conviction for being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. § 922(g)(1). Ballard argues that the district court erred
in denying his motion to suppress evidence discovered during an inventory search of his vehicle.
We affirm.
I.
In the early morning of July 19, 2009, police officers Scott Dendinger and J. Bays were on
patrol in a residential neighborhood of Canton, Ohio. At approximately 1:30 a.m., Officer
Dendinger observed a vehicle, now known to be driven by defendant Ballard, traveling at what
appeared to be a high rate of speed. Suspicious, the officers followed the vehicle in their marked
patrol car, activating a dash-board camera to record all subsequent events.
No. 10-3180
United States v. Ballard
Ballard, aware of the presence of the patrol car, traveled at an appropriate speed. However,
after making several signaled turns, Ballard pulled his vehicle to the curb and parked without
signaling. Based upon this traffic violation, the officers performed a traffic stop of Ballard and his
vehicle.
During the stop, the officers checked the validity of Ballard’s driver’s license by using the
LEADS police database. LEADS indicated that Ballard’s driver’s license was suspended for lacking
insurance or financial responsibility (commonly referred to as an “FRA” suspension). Under Ohio
law, “[n]o person shall operate, or permit the operation of, a motor vehicle . . . , unless proof of
financial responsibility is maintained continuously throughout the registration period with respect
to that vehicle[.]” Ohio Rev. Code Ann. (“ORC”) § 4509.101(A)(1). Failure to maintain proof of
financial responsibility may result in an FRA suspension. ORC § 4509.101(A)(2)(a). Driving while
under an FRA suspension is classified as a misdemeanor offense. ORC § 4510.16.
Officer Dendinger testified at the suppression hearing that, pursuant to standard police
procedure, Ballard’s FRA suspension required that his vehicle be towed and impounded. Prior to
the impound, police department policy further required that officers conduct an inventory search of
Ballard’s vehicle to document its contents.
During the inventory search of Ballard’s vehicle, a firearm was found beneath the driver’s
seat. In response to this discovery, Officer Dendinger asked Ballard, who was detained in the back
-2-
No. 10-3180
United States v. Ballard
seat of the patrol car, why he had not informed the officers of the presence of the firearm. At this
time, Ballard had not received Miranda warnings.1
Following the firearm’s discovery, Ballard was placed under arrest and transported to the
Canton police headquarters. During this commute, Ballard initiated a conversation with the officers
by asking, “what would have been the difference if I had said [the firearm] was in [the vehicle]?”
Officers informed Ballard that he still would have been arrested.2 A few weeks later, after receiving
Miranda warnings, Ballard was interviewed by an FBI agent. During this interview, Ballard
acknowledged his possession of the firearm.
On September 10, 2009, Ballard was indicted on a single count of being a felon in possession
of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). In October 2009, Ballard filed
a motion to suppress the evidence and statements stemming from the inventory search of his vehicle,
asserting that the search was done in violation of his Fourth Amendment rights. Following the
submission of the parties’ briefs, the district court convened a hearing on the motion, receiving
testimony from Officer Dendinger and Ballard, and reviewing the dash-board video recording. At
the conclusion of the hearing, the district court denied Ballard’s motion, holding that the discovery
of the firearm, and the statements stemming therefrom, were the result of a constitutionally-
permissible inventory search.
1
The government did not seek to introduce Ballard’s un-Mirandized statements in response
to this inquiry.
2
The district court held that because Ballard initiated this conversation with the officers, there
was no Miranda violation. Ballard does not challenge this finding on appeal.
-3-
No. 10-3180
United States v. Ballard
On November 16, 2009, Ballard entered a conditional guilty plea, reserving the right to
appeal from the district court’s denial of his suppression motion. Thereafter, Ballard was sentenced
to 92 months of incarceration, to be followed by three years of supervised release. Final judgment
was entered on February 9, 2010, and this timely appeal followed.
II.
Ballard argues that the district court erred in denying his motion to suppress evidence seized
during the inventory search of his vehicle and all evidence derived therefrom. When reviewing a
district court’s ruling on a motion to suppress, we review findings of fact for clear error and legal
conclusions de novo. United States v. Tackett, 486 F.3d 230, 232 (6th Cir. 2007). In addition,
“[w]hen the district court has denied the motion to suppress, we review all evidence in a light most
favorable to the Government.” United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006) (internal
quotation marks and citation omitted).
III.
The Supreme Court has long recognized that law enforcement officials may make a
warrantless inventory search of a legitimately seized vehicle, provided that the property inventory
is conducted according to standardized criteria or an established routine. Colorado v. Bertine, 479
U.S. 367, 371-74 (1987); South Dakota v. Opperman, 428 U.S. 364, 372 (1976). These searches
“serve to protect an owner’s property while it is in the custody of the police, to insure against claims
of lost, stolen, or vandalized property, and to guard the police from danger.” Bertine, 479 U.S. at
372. Vehicle inventory searches are an exception to the Fourth Amendment’s probable cause
-4-
No. 10-3180
United States v. Ballard
requirement and are valid if conducted in accordance with standard police procedures. Id. at 371-72;
United States v. Harvey, 16 F.3d 109, 112 (6th Cir. 1994).
The inventory search performed in this case was constitutionally permissible because it was
conducted in conformity with established policy and procedures. After stopping Ballard for failure
to signal,3 the officers discovered that he was subject to an FRA suspension. According to the
unrefuted testimony of Officer Dendinger, standard Canton Police Department procedure requires
the impound and inventory search of all vehicles found to be operated under an FRA suspension.
Indeed, as a result of the suspension, Ballard was prohibited from removing his vehicle from its then
current location. What’s more, Ballard was similarly prohibited from requesting a third-party to
remove his vehicle. See Canton, OH, Codified Ordinances § 335.072 (“No person, whose driver’s
or commercial driver’s license . . . has been suspended or canceled [for failure to provide proof of
financial responsibility], shall operate any motor vehicle within this Municipality, or knowingly
permit any motor vehicle owned by the person to be operated by another person in the Municipality,
during the period of the suspension or cancellation[.]”) (emphasis added).4 In addition, the inventory
search itself was conducted within the bounds proscribed by Canton Police Department policy. See
3
On appeal, Ballard does not contest that probable cause existed to support the stop of his
vehicle for the failure to signal prior to parking. See Canton, OH, Codified Ordinances § 331.14
(“No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate
signal[.]”).
4
A third-party may operate a vehicle owned by an individual under an FRA suspension if they
have proof of financial responsibility “with respect to that driver’s operation of that vehicle.” ORC
§ 4509.101(A)(1). Here, there is no evidence indicating that any individual obtained proof of
financial responsibility in order to operate Ballard’s vehicle.
-5-
No. 10-3180
United States v. Ballard
General Order No. 38, at 3 (Effective Sept. 1, 1991) (limiting inventory searches to the interior of
the vehicle, the trunk if keys are available, unlocked interior compartments, locked interior
compartments if keys are available, and unlocked containers within the vehicle).
Despite the officers’ adherence the police department policy and procedure, Ballard asserts
that the impound of his vehicle was unconstitutional because: (1) the officers were granted “total
discretion” in deciding whether to impound the vehicle, and (2) the impound was unnecessary
because the vehicle was parked in a legal parking spot. Both arguments are without merit.
Ballard’s assertion that the officers had unfettered discretion in deciding whether to impound
his vehicle is factually incorrect. It is undisputed that Canton’s Codified Ordinances provide officers
with discretionary authority to impound a vehicle operated under a suspended license. See Canton,
OH, Codified Ordinances § 303.08 (“Police officers . . . are authorized to provide for the removal
and impounding of a vehicle under the following circumstances: . . . (i) When any vehicle has been
operated by any person who is driving without a lawful license or while his license has been
suspended or revoked.”); General Order No. 38 (same). However, according to the unrebutted
testimony of Officer Dendinger, when a driver is subject to an FRA suspension, the officers have no
discretion and are required to impound the vehicle.5 This policy is consistent with Ohio law because
no person may operate a vehicle owned by an individual under an FRA suspension unless
specifically authorized to do so. See ORC § 4509.101(A)(1); Canton, OH, Codified Ordinances §
5
“Whether a police department maintains a written policy is not determinative, where
testimony establishes the existence and contours of the policy.” Tackett, 486 F.3d at 233.
-6-
No. 10-3180
United States v. Ballard
335.072. Accordingly, the officers did not have unfettered discretion in ordering the impound of
Ballard’s vehicle; rather, this action was done pursuant to a reasonable and mandatory police
department practice.
Ballard’s next argument, that the police unconstitutionally impounded his vehicle because
it was legally parked, is also easily rejected. As noted above, Ballard’s vehicle was parked on a
public street and could not be removed by Ballard or a third-party. Therefore, the decision to follow
police department policy and impound the vehicle was reasonable for safety and traffic purposes.
See Harvey, 16 F.3d at 112 (“[T]he police lawfully exercised their discretion in deciding to impound
the vehicle in the absence of any licensed driver to attend to it, and they followed departmental
policy in doing so.”); Collins v. Nagle, 892 F.2d 489, 494 (6th Cir. 1989) (“[The Fourth
Amendment] inquiry does not require a determination of whether there was in fact a need . . . to
impound the truck; instead we are required to determine whether the . . . decision to impound was
reasonable under the circumstances.”); United States v. Griffin, 729 F.2d 475, 480 (7th Cir. 1984)
(noting that it was reasonable to tow a vehicle that “would have been otherwise left unattended,
possibly for an extended period, in close proximity to the traveled portion of a busy, high speed
roadway”). Moreover, there is no evidence indicating that the officers impounded Ballard’s vehicle
in order to perform an inventory search and discover evidence of criminal activity. See Opperman,
428 U.S. at 376 (holding that an inventory search was constitutionally permissible in part because
there was “no suggestion” that the search “was a pretext concealing an investigatory police motive”).
-7-
No. 10-3180
United States v. Ballard
IV.
In sum, the district court did not err in denying Ballard’s motion to suppress. The impound
and inventory search of his vehicle were reasonable and performed in accordance with police
department policy and procedure, thereby complying with the Fourth Amendment. Accordingly, the
evidence discovered during the search, and any statements derived therefrom, were properly admitted
and considered by the district court.6 For these reasons, we affirm the district court’s judgment.
6
Because there is no Fourth Amendment violation, we need not address Ballard’s assertion
that his voluntary statements should be suppressed as “fruit of the poisonous tree.” While Ballard
makes passing comments regarding the Miranda violation that took place following the officers’
discovery of the firearm, he makes no meaningful arguments regarding whether such a violation
requires the suppression of any subsequent voluntary statement. Accordingly, this argument is
forfeited. See Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 321 (6th Cir. 2010) (internal
quotation marks and citation omitted) (“[I]t is a settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.”). Moreover, any such argument would be meritless. See Oregon v. Elstad, 470 U.S. 298,
308 (1985) (holding that a “noncoercive Miranda violation” does not require suppression of
subsequent voluntary statements as “fruit of the poisonous tree”).
-8-