United States v. Mark Johnson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30222
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00224-
JO-1
MARK PATRICK JOHNSON,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, Senior District Judge, Presiding
Argued and Submitted October 5, 2017
Portland, Oregon
Filed May 14, 2018
Before: Diarmuid F. O’Scannlain, Richard A. Paez,
and Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge O’Scannlain;
Concurrence by Judge Paez
2 UNITED STATES V. JOHNSON
SUMMARY *
Criminal Law
The panel reversed the district court’s denial of a motion
to suppress evidence found on the defendant’s person and in
the car he was driving at the time of his arrest; vacated his
conviction and sentence for possession with intent to
distribute methamphetamine; and remanded for further
proceedings.
The defendant argued that the manner in which the
officers arrested him was a pretext to conduct the inventory
search that followed. The panel held that the defendant
failed to show that the officers’ decision to pull him over and
to impound his car would not have occurred in the absence
of an impermissible reason.
In light of United States v. Orozco, 858 F.3d 1204 (9th
Cir. 2017), the panel held that the officers’ search and
seizure of items from the defendant’s car cannot be justified
under the inventory-search doctrine because the officers
explicitly admitted that they seized the items in an effort to
search for evidence of criminal activity. Because the
government did not offer any justification for the seizure of
the property other than the inventory-search doctrine, the
panel concluded that the district court erred in denying the
motion to suppress.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOHNSON 3
Specially concurring, Judge O’Scannlain (joined by
Judge Bea) concurred fully in the court’s opinion, which
faithfully follows Orozco, but wrote separately because he
believes Orozco contradicts earlier Supreme Court
precedent and ought to be reconsidered by this court.
Specially concurring, Judge Paez concurred in the
court’s opinion without reservation; he disagrees with his
colleagues’ separate concurrence that Orozco should be
revisited in light of Brigham v. City of Stuart, 547 U.S. 398(2006).
COUNSEL
Tonia Louise Moro (argued), Tonia L. Moro Attorney at
Law PC, Medford, Oregon, for Defendant-Appellant.
Hannah Horsley (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Plaintiff-Appellee.
4 UNITED STATES V. JOHNSON
OPINION
PER CURIAM:
We must decide whether the trial court erred in failing to
suppress evidence that was seized by City of Portland police
officers during their inventory search of a criminal defendant
and the car he was driving at the time of his arrest.
I
A
On April 10, 2014, Multnomah County Sheriff’s
deputies located Mark Johnson—who had an outstanding
warrant for his arrest based on a post-prison supervision
violation—at the Clackamas Inn, just south of Portland,
Oregon. The deputies followed Johnson to a residence in the
nearby town of Gladstone and called Portland Police Bureau
(PPB) Officers Joseph Corona and Jerry Ables for assistance
in arresting him.
The officers did not approach Johnson at the residence,
but instead waited outside. After about 20 minutes, Johnson
left, and again the officers followed him. At a nearby
intersection, the officers finally stopped Johnson by loosely
boxing in his car; one car approached Johnson from behind
while another approached from the front, effectively
blocking Johnson’s ability to drive away. The cars all came
to a stop within a few feet of each other, and although there
was enough room for Johnson to pull his car to the side of
the road, he instead parked in the lane of traffic, disrupting
the flow of passing cars. When approached by the officers,
Johnson could not provide proof of insurance for the car,
which he was borrowing, nor could he give anything other
UNITED STATES V. JOHNSON 5
than the first name of the car’s owner. Johnson did not know
how the police could contact the owner.
The officers arrested Johnson on the outstanding
warrant. Incident to the arrest, the officers searched Johnson
and found a folding knife in his front pocket, $7,100 in cash
in $20 and $100 denominations in his rear pants pocket, and
$150 in cash in his wallet. Johnson said that he had recently
inherited the $7,100 and that he planned to purchase a car
with it (though he did not know what kind of car he intended
to buy or where he would purchase it).
Because Johnson’s car was blocking traffic and because
Johnson could not provide contact information for the car’s
owner, the officers ordered it to be towed and impounded,
pursuant to PPB policy. Prior to the tow, the officers
conducted an inventory search of the car, again pursuant to
local policy. From the interior of the car, the officers
collected a combination stun gun and flashlight, a glass pipe
with white residue, a jacket, and two cellphones. From the
trunk, the officers collected a backpack and a duffel bag.
Officer Corona testified that, when he moved the backpack
and duffel in order to search for other items in the trunk, the
bags felt heavy and the backpack made a metallic “clink”
when he set it down on the pavement. PPB stored each of
the seized pieces of property in the County property and
evidence warehouse, and the $7,100 was taken into custody
by the County Sherriff’s Office. Officer Corona recorded
each item seized on an accompanying arrest report; the
Sheriff’s Office prepared a property receipt for the $7,100 in
seized cash.
A week later, Officer Corona submitted an affidavit to
secure a warrant to search the seized backpack, duffel bag,
and cell phones. The affidavit referred to a 2009 police
report (which Corona read after arresting Johnson) that
6 UNITED STATES V. JOHNSON
stated Johnson had previously been found with cash,
weapons, and drugs in a safe concealed in his vehicle.
Officer Corona’s affidavit stated that, based on the
circumstances of Johnson’s recent arrest, he had probable
cause to believe the bags seized from the trunk would
contain similar lockboxes, and that the phones would contain
evidence of drug dealing.
A warrant was duly signed by a local magistrate judge,
and a search of the backpack revealed a small safe containing
two bags of methamphetamine, drug-packaging materials,
syringes, and a digital scale. The backpack also contained
paperwork with notes on court cases that corresponded to
several criminal prosecutions of Johnson. The duffel bag
contained Johnson’s personal items, and one of the
cellphones contained text messages regarding drug
trafficking.
B
Johnson was indicted on one charge of possession with
intent to distribute methamphetamine in an amount of
50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii).
Before trial, Johnson moved to suppress the evidence
found in the car and on his person at arrest. Primarily,
Johnson challenged the evidence supporting the warrant to
search the backpack and cellphones, arguing that it did not
amount to probable cause. Johnson also argued that the
officers unlawfully manipulated the bags they seized from
the car in order to get a sense for what they might contain
and that the inventory search of his car was invalid. The
district court denied the motion, concluding that there was
probable cause to stop and to arrest Johnson on the
outstanding warrant, the officers validly impounded
UNITED STATES V. JOHNSON 7
Johnson’s car because it was blocking traffic, the subsequent
inventory of the vehicle was “lawful because [PPB]
mandates officers to conduct an inventory of impounded
vehicles,” and the search warrant was supported by probable
cause.
At trial, the government introduced the evidence found
in Johnson’s car and on his person, with a particular focus
on the items of evidence found in the backpack, the
messages from the cellphone, and the $7,100 in cash. The
jury found him guilty.
Approximately four months later, Johnson filed a motion
for new trial on the basis of, among other things, two pieces
of supposedly newly discovered evidence: (1) evidence
showing that Johnson had indeed recently received an
inheritance; and (2) a receipt from the private company that
towed and impounded his car, which stated that they found
various additional items of property in the car that were not
listed in Officer Corona’s arrest report. After a hearing, the
district court denied the motion for a new trial upon the
conclusion that none of the supposedly new evidence would
have resulted in a likely acquittal.
Johnson was sentenced to 188 months in prison, and he
now timely appeals.
II
Johnson argues that the district court erred in denying his
motion to suppress, because the officers’ inspection of his
car exceeded the constitutionally permissible bounds for an
inventory search.
As an exception to the warrant requirement of the Fourth
Amendment to the United States Constitution, “police may,
8 UNITED STATES V. JOHNSON
without a warrant, impound and search a motor vehicle so
long as they do so in conformance with the standardized
procedures of the local police department and in furtherance
of a community caretaking purpose, such as promoting
public safety or the efficient flow of traffic.” United States
v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016). The purpose
of such a search is to “produce an inventory” of the items in
the car, in order “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.” Florida v. Wells, 495 U.S. 1, 4 (1990) (internal
quotation marks omitted). Thus, the purpose of the search
must be non-investigative; it must be “conducted on the
basis of something other than suspicion of evidence of
criminal activity.” Torres, 828 F.3d at 1118 (emphasis
added) (internal quotation marks omitted). The search
cannot be “a ruse for a general rummaging in order to
discover incriminating evidence.” Wells, 495 U.S. at 4.
Johnson contends that the officers in this case
impounded and searched the car he was driving not for any
legitimate inventory purposes, but rather as a pretext to look
for evidence of wrongdoing. He urges that both the officers’
actions leading up to the stop and search of his car and their
conduct in carrying out that search show that they were
subjectively motivated by an improper desire to find
incriminating evidence against him.
A
The government argues that, regardless what the
officers’ personal motivations were for searching Johnson’s
car, such motivations are simply not relevant to our Fourth
Amendment inquiry. In most contexts, that is true. The
Supreme Court has emphasized time and again that “[a]n
action is ‘reasonable’ under the Fourth Amendment,
UNITED STATES V. JOHNSON 9
regardless of the individual officer’s state of mind, as long
as the circumstances, viewed objectively, justify the action.”
Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (internal
quotation marks and alteration omitted); see also Bond v.
United States, 529 U.S. 334, 338 n.2 (2000) (“[T]he
subjective intent of the law enforcement officer is irrelevant
in determining whether that officer’s actions violate the
Fourth Amendment”); Whren v. United States, 517 U.S. 806,
813 (1996) (“[W]e have been unwilling to entertain Fourth
Amendment challenges based on the actual motivations of
individual officers . . . .”).
However, in an opinion published after the district
court’s decision in this case, our court held that
administrative searches conducted without individualized
suspicion—such as drunk-driving checkpoints or vehicular
inventory searches—are an exception to this general rule.
See United States v. Orozco, 858 F.3d 1204, 1210–13 (9th
Cir. 2017). In such circumstances, “actual motivations do
matter.” Id. at 1210 (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 736 (2011)); see also United States v. Hellman,
556 F.2d 442, 443–44 (9th Cir. 1977) (inventory search
conducted “for an investigatory police motive” is invalid).
In light of the “Supreme Court’s express concern that
programmatic searches not be used as a pretext,” we held
that a court must
inquir[e] into an officer’s purpose in
conducting a stop or search without
reasonable suspicion or probable cause, when
such an intrusion is sought to be justified
pursuant to the administrative search
doctrine, and where the defendant has come
forward with objective evidence to suggest
that the intrusion was not made for the
10 UNITED STATES V. JOHNSON
purpose of enforcing the administrative
inspection scheme.
Orozco, 858 F.3d at 1212–13 (emphasis added). Thus, an
administrative search may be invalid where the officer’s
“subjective purpose was to find evidence of crime.” Id. at
1213. However, the mere “presence of a criminal
investigatory motive” or a “dual motive—one valid, and one
impermissible—” does not render an administrative stop or
search invalid; instead, we ask whether the challenged
search or seizure “would . . . have occurred in the absence of
an impermissible reason.” Id.
We thus must determine whether Johnson has produced
evidence that demonstrates the officers would not have
searched and seized items from the car he was driving but
for an impermissible motive.
B
Johnson first argues that the very manner of his arrest
was a pretext to conduct the inventory search that followed;
he argues that the officers orchestrated his traffic stop
specifically so that they would be able to impound and to
search the car he was driving. There is no doubt that, after
stopping Johnson’s car, the officers had an objectively sound
reason to order the car towed: Johnson had stopped the car
in the middle of the street, blocking the flow of traffic, and
he was unable to put the officers in contact with the vehicle’s
owner so that it could be retrieved. See Torres, 828 F.3d at
1118 (“promoting public safety or the efficient flow of
traffic” is a valid community caretaking purpose). Johnson
argues, however, that the officers intentionally and
illegitimately stopped him in a way that forced him to leave
the car in such a position.
UNITED STATES V. JOHNSON 11
Specifically, Johnson challenges the officers’ decision
not to arrest him as he exited the residence they were staking
out, but instead to wait and to stop his car in the street—and
to do so by physically boxing him in. He adds that the
officers then approached his car with guns drawn, making it
even more unlikely that he would feel free to move his car
to the side of the road. Although Johnson doubts the need
for such maneuvers, the officers offered valid explanations
for these actions, namely that the box-in technique was used
to prevent flight and the timing and manner of Johnson’s
arrest were coordinated to minimize risks to officer safety.
Moreover, even if the box-in tactic might have made it
harder for Johnson to pull to the side, Johnson does not claim
that it prevented him from doing so. Indeed, one of the
arresting officers offered unrebutted testimony that there
was enough space for Johnson to have pulled closer to the
curb when he initially stopped the car.
Johnson’s argument overlooks another critical fact that
created the need to impound the car: Johnson could not
provide the contact information for the car’s owner.
Johnson’s inability to contact the owner could not have been
orchestrated by the police, and without it, they may not have
had reason to tow the car (as opposed to releasing it to its
owner). In other words, the officers’ chosen method of
stopping Johnson would seem to be a poor way to orchestrate
a scenario in which they would get to tow his car unless they
could have somehow known ahead of time that the car’s true
owner would be unavailable to retrieve it. There is no
evidence that the officers were aware of such fact when they
chose to pull him over.
Altogether, Johnson has failed to show that the officers’
decision to pull him over and to impound his car “would not
12 UNITED STATES V. JOHNSON
have occurred in the absence of an impermissible reason.”
Orozco, 858 F.3d at 1213.
C
Johnson also argues that, even if the stop and
impoundment of the car were valid, the officers improperly
searched the car in an effort to find evidence of criminal
activity. Johnson does not dispute that, before impounding
the car, the officers were required by PPB policy to complete
an inventory of the “personal property and contents of open
containers” found within it and were authorized to seize the
items found for safekeeping. See Portland City Code
§ 14C.10.030(C); Portland Police Bureau Policy 650.000.
And indeed, we have previously held that PPB’s inventory-
search policies are valid for Fourth Amendment purposes,
and that evidence found or seized in compliance with them
may be admitted against a criminal defendant. See United
States v. Penn, 233 F.3d 1111, 1115–16 (9th Cir. 2000).
Johnson argues, however, that the officers in fact used this
administrative inventory process not to identify and to
safeguard his possessions, but instead merely as a pretext to
gather evidence of crime.
Johnson raises a number of points in support of his
argument, including that the officers’ improper motivations
are evidenced by their purported failure to comply with
various provisions of PPB’s inventory policy (for example
by failing to list items in an appropriate manner and by
failing to provide property receipts for all items seized).
However, we need not consider the merits of those
arguments—or whether any such violations of PPB policy
would require suppression of the evidence found—because
the officers themselves explicitly admitted that they seized
items from the car in an effort to search for evidence of
criminal activity.
UNITED STATES V. JOHNSON 13
First, the arrest report prepared by Officer Corona stated
that he “believed it likely that the bags [seized from the
trunk] contained evidence of restricted weapons and drug
possession/sales,” that he believed the seized cell phones
may have been “used to facilitate criminal activity and
evidence [may] be found stored on the phones,” and that all
of the seized items “were placed into evidence.” The
affidavit Officer Corona submitted in support of his
application for a search warrant further confirmed that the
items had been “seized pending further investigation,” rather
than for safekeeping. And at the suppression hearing,
Officer Corona specifically testified that he seized the two
bags from the car’s trunk to hold onto them until he could
secure a search warrant, because he “believe[d] that likely
there was evidence of a crime inside the two bags.”
Likewise, Multnomah County Deputy Adam Swail, who
prepared the property receipt for the $7,100, testified that he
assisted with taking that money “as evidence.” He explained
that his office held the money to help facilitate any civil
forfeiture proceedings against it (presumably because it was
believed to be the proceeds of a drug crime).
Indeed, the prosecution’s own arguments before the
district court emphasized the evidentiary motives behind
these seizures. In both its brief in opposition to the motion
to suppress and at the accompanying hearing, the
government insisted that the money, the bags, and the cell
phones were all seized from the car as “evidence” of a
suspected crime. Even on appeal, the government continues
to state that, during his inventory search, Officer Corona
“located evidence of a crime,” and that he seized the bags
and placed them “in the evidence room” in order to apply for
a search warrant. In short, the officers and the government’s
attorneys have made clear throughout this case that the items
14 UNITED STATES V. JOHNSON
taken from Johnson’s car were seized and treated
specifically as evidence of a crime—not as property held for
safekeeping.
Under our circuit’s law, a suspicionless inventory search
does not permit officers to search or to seize items simply
because they believe the items might be of evidentiary value.
As explained above, the purpose of such a search must be
unrelated to criminal investigation; it must function instead
to secure and to protect an arrestee’s property (and likewise
to protect the police department against fraudulent claims of
lost or stolen property). See Wells, 495 U.S. at 4; Orozco,
858 F.3d at 1210–13; Hellman, 556 F.2d at 443–44; see also
State v. Lovaina-Burmudez, 303 P.3d 988, 991–95 (Or. Ct.
App. 2013) (PPB inventory policy does not permit officers
to seize items as evidence “for prosecution, rather than [as]
personal property to be inventoried and secured for
defendant”). Thus, the officers’ statements directly
admitting that they searched and seized items from
Johnson’s car specifically to gather evidence of a suspected
crime (and not to further such permissible caretaking
motives) are “sufficient to conclude that the warrantless
search of the car was unreasonable.” Hellman, 556 F.2d at
444; see also Orozco, 858 F.3d at 1213 (“[W]e have found
pretext where the police officers admitted that their
subjective purpose was to find evidence of crime.”). 1 In the
1
The officers’ statements as to their investigative motivations are
further buttressed by comparing the items that were seized and logged
on the property inventory form with those that were not. Indeed, there
seems to be nothing connecting the items that were seized other than
their apparent relevance to Johnson’s later drug charges. For example,
two bags from the trunk were seized—each of which contained
incriminating evidence—while a third bag was left behind. Two cell
phones and an accompanying battery pack were seized but other
UNITED STATES V. JOHNSON 15
face of such evidence, it is clear to us that the officers’
decision to seize the money, bags, and cellphones from
Johnson and his car would not have occurred without an
improper motivation to gather evidence of crime.
In light of our decision in Orozco, we conclude that the
officers’ search and seizure of such evidence cannot be
justified under the inventory-search doctrine. See Orozco,
858 F.3d at 1212–16. Because the government has not
offered any justification for the seizure of such property
other than the inventory-search doctrine, we conclude that
the district court erred in denying Johnson’s motion to
suppress. 2 The evidence gathered from Johnson and his
vehicle was inadmissible. 3 See, e.g., United States v.
Feldman, 788 F.2d 544, 554 (9th Cir. 1986) (evidence
obtained from invalid inventory search requires
suppression).
electronics (a GPS device, a DVD player, and a power station for tools)
were not.
2
Even if an inventory search itself may not be justified by a criminal
investigative motive, officers may, of course, act on evidence of a crime
that is discovered during a valid inventory search. In such
circumstances, however, the officers’ decision to seize the items as
evidence must be supported by an appropriate showing of suspicion.
See, e.g., Maryland v. Buie, 494 U.S. 325, 330 (1990) (officer conducting
lawful search may seize evidence “which was in plain view and which
the officer had probable cause to believe was evidence of a crime”). The
government has advanced no such argument here.
3
Although the government does not argue harmless error, we
conclude that the error was not harmless. The evidence seized from the
search of Johnson and the car—in particular the cash and the evidence
from the cellphones and the bags in the trunk—was central to the
government’s case against Johnson at trial.
16 UNITED STATES V. JOHNSON
III
The district court’s denial of Johnson’s motion to
suppress the evidence found on his person and in the car he
was driving at the time of his arrest is REVERSED, his
conviction and sentence are VACATED, and the case is
REMANDED to the district court for further proceedings. 4
O’SCANNLAIN, Circuit Judge, with whom BEA, Circuit
Judge, joins, specially concurring:
I concur fully in the opinion of the court, which faithfully
follows our circuit’s precedent in United States v. Orozco,
858 F.3d 1204 (9th Cir. 2017). I write separately, however,
because I believe such decision contradicts earlier Supreme
Court precedent and that Orozco therefore ought to be
reconsidered by our court.
I
A
The Supreme Court has repeatedly held that an officer’s
subjective motivations are irrelevant when determining
whether a particular search or seizure is permissible under
the Fourth Amendment; the pertinent question is whether the
circumstances viewed objectively would justify the officer’s
conduct. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 404
(2006); Bond v. United States, 529 U.S. 334, 338 n.2 (2000);
Whren v. United States, 517 U.S. 806, 813 (1996); Graham
4
Because we vacate Johnson’s conviction on the basis of the district
court’s failure to grant his motion to suppress, we do not consider his
argument that his motion for a new trial should have been granted.
UNITED STATES V. JOHNSON 17
v. Connor, 490 U.S. 386, 397 (1989). There is some
confusion as to how this doctrine applies in the context of
administrative searches conducted without any
individualized suspicion, such as checkpoints to inspect
vehicles for drunk driving, or, as in this case, inventory
searches to identify and to safeguard property found in a
vehicle prior to impoundment. In such cases, the relevant
administrative search program must actually further some
valid, non-investigatory purpose; the program cannot merely
be a “ruse for general rummaging in order to discover
incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4
(1990). Thus, the court may conduct “an inquiry into the
programmatic purpose in such contexts,” to determine
whether the underlying administrative inspection scheme
itself is “driven by an impermissible purpose.” City of
Indianapolis v. Edmond, 531 U.S. 32, 46–47 (2000).
In Orozco, we held that our evaluation of the purposes
behind an administrative inspection program must also
consider the subjective motivations of the officers who
executed the search. We wrote that even if the
“programmatic purpose” of the administrative inspection
scheme is valid, we must determine whether the individual
“officer’s purpose in conducting a stop or search” was
indeed to “enforc[e] the administrative inspection scheme.”
Orozco, 858 F.3d at 1212–13 (emphasis added). Thus, we
held, a court must ask “whether a stop made for an ostensibly
legal reason is a pretext for what is, in reality, an
impermissible reason.” Id. at 1213 (internal quotation marks
omitted). The court must determine whether the individual
officer would have conducted the stop and search “in the
absence of an impermissible reason” to do so. Id. (internal
quotation marks omitted); see also id. (administrative search
is invalid if the officer’s “subjective purpose was to find
evidence of crime”).
18 UNITED STATES V. JOHNSON
B
The problem, however, is that the Supreme Court has
explicitly—and unanimously—rejected the approach we
adopted in Orozco. In Brigham City v. Stuart—a case that
predates Orozco by more than a decade—the Supreme Court
held that an officer’s subjective motivations cannot
invalidate an otherwise objectively valid entry into a home
under the “exigent circumstances” exception to the Fourth
Amendment’s warrant requirement. 547 U.S. at 404.
Specifically, the Court upheld police officers’ warrantless
entry into a home where “they ha[d] an objectively
reasonable basis for believing that an occupant is seriously
injured or imminently threatened with such injury.” Id. at
400. The respondents argued that the officers’ entry was
invalid because, even if there were an objective basis to
conclude there was an emergency inside the home, in reality,
“the officers were more interested in making arrests than
quelling violence.” Id. at 404. The Court rejected such
argument and reiterated that it has “repeatedly rejected” the
notion that an “officer’s state of mind” has any relevance to
the Fourth Amendment inquiry. Id. (citing cases).
Critically, the Court in Brigham City then addressed the
unique circumstance of “programmatic searches conducted
without individualized suspicion”—i.e., the type of search at
issue in Orozco and in this case. Id. at 405. The Court
acknowledged that, in such contexts, “‘an inquiry into
programmatic purpose’ is sometimes appropriate,” but
explained that “this inquiry is directed at ensuring that the
purpose behind the program is not ‘ultimately
indistinguishable from the general interest in crime
control.’” Id. (emphasis in original) (quoting Edmond,
531 U.S. at 46). The Court underscored that such an inquiry
“has nothing to do with discerning what is in the mind of the
UNITED STATES V. JOHNSON 19
individual officer conducting the search.” Id. (emphasis
added); see also Edmond, 531 U.S. at 48 (“[W]e caution that
the purpose inquiry in this context is to be conducted only at
the programmatic level and is not an invitation to probe the
minds of individual officers acting at the scene.” (emphasis
added)). In short, the Court in Brigham City clarified that an
individual officer’s “subjective motivation is irrelevant” to
the Fourth Amendment, even when the programmatic
motivation behind an administrative inspection scheme
might matter. 547 U.S. at 404; see also United States v.
McKinnon, 681 F.3d 203, 210 (5th Cir. 2012) (“Although
[the officer] may have had an ulterior motive to search the
vehicle, the inventory search was [objectively] reasonable,
and thus, remained valid under the Fourth Amendment.”);
Laidley v. City & Cty. of Denver, 477 F. App’x 522, 524
(10th Cir. 2012) (Gorsuch, J.) (“[Laidley] claims that the
officers involved weren’t motivated by community
caretaking concerns [when they towed his car] . . . . But this
is insufficient to establish a Fourth Amendment
violation. . . . ‘The officer’s subjective motivation is
irrelevant.’” (quoting Brigham City, 547 U.S. at 404)).
II
I do not see how one can reconcile the Supreme Court’s
admonition in Brigham City that our inquiry into the
programmatic purpose behind an administrative search “has
nothing to do with discerning what is in the mind of the
individual officer conducting the search,” 547 U.S. at 405,
with Orozco’s holding that such an inquiry “necessarily
requires an inquiry into [the] officer’s purpose in
conducting” the search, 858 F.3d at 1212. Unfortunately, the
court in Orozco did not even cite, let alone attempt to
distinguish, Brigham City. Instead, the court in Orozco
simply offered its own gloss on the Supreme Court’s
20 UNITED STATES V. JOHNSON
discussion of programmatic purposes in earlier cases,
including Indianapolis v. Edmond and Florida v. Wells—the
exact cases that the Court later clarified in Brigham City. 1
See generally 547 U.S. at 405. Judge Paez argues that
Orozco “examined a long line of Supreme Court cases” and
“meticulously [laid] out” its reasons for interpreting those
cases differently than the Court itself did in Brigham City.
Paez Concurrence at 25 (internal quotation marks omitted).
Perhaps so. But we, as an inferior court, are not at liberty to
disagree with the Supreme Court’s own interpretation of its
precedent.
Judge Paez’s further insinuation that the “vast majority
of our sister circuits” would find Orozco to be consistent
with Brigham City is unfounded. Paez Concurrence at 28–
29. At least three circuits—the First, Fifth, and Tenth—have
1
Centrally, the court in Orozco sidestepped the Supreme Court’s
caution in Indianapolis v. Edmond that “the purpose inquiry in [the
administrative search] context is to be conducted only at the
programmatic level and is not an invitation to probe the minds of
individual officers acting at the scene.” 531 U.S. at 48. The court in
Orozco dodged the seemingly obvious implications of this statement by
observing that the search in Edmond was conducted pursuant to an
invalid administrative inspection scheme that was not supported by an
appropriate programmatic purpose. See Orozco, 858 F.3d at 1212. The
court wrote that Edmond thus “had no occasion to address directly the
purpose of law enforcement officers who act to enforce a valid
administrative scheme,” and concluded that Edmond’s rejection of an
individual-purpose inquiry did not apply where an officer’s subjective
motivation arguably invalidated a search conducted under an otherwise
permissible scheme. See id. This already thin distinction falls apart in
the context of Brigham City. There, the Supreme Court indeed rejected
the argument that an individual officer’s improper motivation might
invalidate an otherwise objectively valid warrantless search, citing
Edmond in the process. See 547 U.S. at 404–05.
UNITED STATES V. JOHNSON 21
rejected Orozco’s line of analysis. 2 See, e.g., McKinnon,
681 F.3d at 210; Laidley, 477 F. App’x at 524; United States
2
Curiously enough, Judge Paez cites a case decided nearly a decade
before Brigham City to suggest that the Tenth Circuit agrees with
Orozco. See Paez Concurrence at 29 (citing United States v. Haro-
Salcedo, 107 F.3d 769, 773 (10th Cir. 1997)). First, even in that case,
the court held that the evidence found during the supposedly invalid
inventory search (which had been conducted by an officer searching for
evidence of crime) could still be admitted against the defendant, because
a hypothetical inventory search (i.e., one conducted by a hypothetical
officer acting for administrative purposes) would have found the
evidence anyway. 107 F.3d at 773–74. More to the point, at least one
panel of the Tenth Circuit—in an unpublished decision written by then-
Judge Gorsuch—has since held that the Supreme Court’s opinion in
Brigham City rejects an Orozco-like analysis in the first place. See
Laidley, 477 F. App’x at 524
United States v. Martinez, 512 F.3d 1268, 1274 (10th Cir. 2008),
which held that a hypothetical inventory search may not “transgress[] its
administrative purposes” hardly shows—as Judge Paez suggests, Paez
Concurrence at 29 n.4—that Laidley contravenes controlling Tenth
Circuit law. In context, that passing quotation says nothing about
whether an individual officer’s subjective motivation could invalidate an
inventory search otherwise conducted under a valid inventory search
program (i.e., one supported by a permissible programmatic purpose).
Indeed, in the very next sentence of its opinion the Tenth Circuit
explained “[i]n other words” that under Florida v. Wells, 495 U.S. at 4,
an inventory search cannot be a “ruse for general rummaging.” This
inquiry from Wells is exactly what the Court in Brigham City limited
only to an inspection of programmatic—and not individual—
motivations. See 547 U.S. at 406 (quoting Wells, 495 U.S. at 4).
Further, it makes no sense that the court in Martinez would have
been addressing a searching officer’s subjective motivation; that case
once again considered the hypothetical application of an inventory
search policy to consider whether certain evidence would have inevitably
been discovered if such a search were conducted. 512 F.3d at 1274.
Because such a search was not actually conducted, there was no
searching officer whose motives could have been questioned. Worse
22 UNITED STATES V. JOHNSON
v. Hawkins, 279 F.3d 83, 86 (1st Cir. 2002) (“Appellant also
challenges the search saying that the inventory was clearly a
‘ruse’ to search for drugs. Regardless of what appellant
suggests, the law is clear. The subjective intent of the
officers is not relevant so long as they conduct a search
according to a standardized inventory policy.”). Prior to
Orozco, our own court had as well. See United States v.
McCarty, 648 F.3d 820, 833 (9th Cir. 2011) (“[In
administrative-search cases,] consideration of the
government actor’s actual motivation has been limited to an
inquiry into the programmatic purposes motivating the
search. . . . [T]his inquiry ‘is not an invitation to probe the
minds of individual officers acting at the scene.’ . . . ‘[T]he
subjective motive of the individual conducting the search
will not invalidate the search.’” (quoting Edmond, 531 U.S.
at 48; United States v. Bulacan, 156 F.3d 963, 967 (9th Cir.
1993))); United States v. Tsai, 282 F.3d 690, 695 (9th Cir.
2002) (holding that Edmond provides for an inquiry into
purpose and scope of the overall administrative search
“scheme,” not an “inquiry into the searcher’s motivation”). 3
still, like in Haro-Salcedo, in Martinez the officers actually did search
the car based on their suspicion of criminal activity. See id. at 1271. Yet,
the court held that even if the officers’ suspicion-based search were
invalid, the car could hypothetically have been searched anyway
pursuant to the applicable inventory policy and thus upheld the trial
court’s refusal to suppress the evidence found inside. See id. at 1274.
This seems hardly a case to show that subjective officer motivations
matter.
3
Orozco parted ways with our prior cases in much the same way it
eluded the Supreme Court’s guidance in Brigham City. Before Orozco,
in United States v. McCarty we had expressly recognized that the
Supreme Court’s decision in Edmond permits only an inquiry into
programmatic (and not individual) motivations. See 648 F.3d at 832–33.
The panel in Orozco sidestepped McCarty by itself “analyz[ing]”
UNITED STATES V. JOHNSON 23
Judge Paez asserts that seven other circuits—the Second,
Third, Fourth, Sixth, Eighth, Eleventh, and D.C. Circuits—
agree with Orozco. See Paez Concurrence at 27–30. First,
the Second Circuit’s purported agreement is hardly as clear
as Judge Paez would suggest. See United States v. Lopez,
547 F.3d 364, 372 (2d Cir. 2008) (“[I]f a search of an
impounded car for inventory purposes is conducted under
standardized procedures, that search falls under the
inventory exception . . . notwithstanding a police
expectation that the search will reveal criminal evidence. If
good faith is a prerequisite of an inventory search, the
expectation and motivation to find criminal evidence do not
constitute bad faith.”). More to the point, none of the cases
cited by Judge Paez actually addresses whether Orozco’s
line of reasoning is in conflict with what the Court said in
Brigham City. Three of the cases precede Brigham City by
years. See United States v. Rowland, 341 F.3d 774 (8th Cir.
2003); United States v. Khoury, 901 F.2d 948 (11th Cir.
1990); United States v. Whitfield, 629 F.2d 136 (D.C. Cir.
1980). In fact, Judge Paez identifies only one case that even
cites Brigham City, and it does so on a different point of law.
See United States v. Tackett, 486 F.3d 230, 232 (6th Cir.
2007). Indeed, that case hardly bears on the question before
us at all. In it, the Sixth Circuit simply repeated that
inventory searches cannot be a pretext for criminal
investigation but did not address whether that means an
Edmond and reaching a different conclusion about the extent of
Edmond’s holding. Orozco, 858 F.3d at 1216. The court wrote that if
McCarty had provided a conflicting interpretation of Edmond, “that view
would beg the question” at hand. Id. In other words, the court in Orozco
simply determined that any contrary statement of the law in McCarty
must have been wrongly decided. Of course, a three-judge panel of our
court cannot decline to follow an earlier Ninth Circuit precedent simply
because it disagrees with its analysis. See Miller v. Gammie, 335 F.3d
889, 899–900 (9th Cir. 2003) (en banc).
24 UNITED STATES V. JOHNSON
officer’s subjective motivation may invalidate a search
conducted under an objectively sound administrative
program. See generally id. at 232–34.
In short, the cases cited by Judge Paez say very little
about whether our decision in Orozco is misguided in light
of the Supreme Court’s admonition in Brigham City not to
engage in exactly the sort of individual-motivation inquiry
that Orozco allows. They certainly do not show that the
“vast majority” of circuits would agree that we should not
revisit such decision now.
III
As law of the circuit, Orozco controls our decision in this
case. 4 However, I hope that we might reconsider that
decision en banc, in light of the directly contrary views
expressed earlier by the Supreme Court in Brigham City.
4
Even though it is irreconcilable with the Supreme Court’s decision
in Brigham City, we are obligated to follow Orozco because it was
decided well after Brigham City. Cf. United States v. Robertson,
875 F.3d 1281, 1291 (9th Cir. 2017) (“[A] three-judge panel is not
allowed to disregard a prior circuit precedent, but rather must follow it
unless or until change comes from a higher authority.”); Miller, 335 F.3d
at 899–900 (three-judge panel may reject prior opinion of this court
where it is clearly irreconcilable with “intervening higher authority”
(emphasis added)).
UNITED STATES V. JOHNSON 25
PAEZ, Circuit Judge, specially concurring:
I concur in the court’s opinion without reservation. The
opinion is consistent with the current state of the law on
inventory searches, not just in our circuit, but in the Supreme
Court and the vast majority of our sister circuits as well. I
therefore disagree with my colleagues’ separate concurrence
that our decision in United States v. Orozco, 858 F.3d 1204(9th Cir. 2017), should be revisited in light of the Supreme
Court’s decision in Brigham City v. Stuart, 547 U.S. 398(2006).
True to the Supreme Court’s past precedent, Orozco
concluded that the administrative search doctrine permits an
inquiry into “an officer’s subjective purpose” when there is
“objective evidence to suggest that the intrusion was not
made for the purpose of enforcing the administrative
inspection scheme.” Orozco, 858 F.3d at 1212–13. In so
concluding, Orozco examined a “long line of Supreme Court
cases” evidencing the Supreme Court’s consistent “concern
for pretext, even where searches or seizures are undertaken
by those charged with enforcing a valid administrative
scheme.” Id. at 1212. Our decision in Orozco meticulously
lays out this history in full, and I see no need to repeat it here.
See id. at 1210–12. I note, however, that the Supreme Court
has repeatedly emphasized that “reasonable police
regulations relating to inventory procedures administered in
good faith satisfy the Fourth Amendment.” Colorado v.
Bertine, 479 U.S. 367, 374 (1987) (emphasis added); see
also New York v. Burger, 482 U.S. 691, 716 n.27 (1987)
(concluding both that the administrative scheme itself was
not enacted for the purpose of effectuating investigative
searches and that there was “no reason to believe that the
instant inspection was actually a ‘pretext’ for obtaining
evidence of respondent’s violation of the penal laws”
26 UNITED STATES V. JOHNSON
(emphasis added)). Thus, a Fourth Amendment violation
based on an administrative search requires “showing that the
police, who were following standardized procedures, acted
in bad faith or for the sole purpose of investigation.”
Bertine, 479 U.S. at 372. And what is bad faith if not a
subjective motive-based inquiry? See Bad Faith, Black’s
Law Dictionary (10th ed. 2014) (defining “bad faith” to
mean “[d]ishonesty of belief, purpose, or motive”).
My colleagues suggest in their concurrence that despite
this case law, Orozco is not faithful to the Supreme Court’s
treatment of administrative searches. They rely on the
Supreme Court’s decision in Brigham City for the
proposition that the Court has explicitly disavowed any
inquiry into an officer’s subjective motivations even in the
context of an administrative search. I disagree. The
Supreme Court’s decision in Brigham City was limited to the
“exigent circumstances” exception to the Fourth
Amendment’s warrant requirement. Although the Court
briefly suggested in Brigham City that a programmatic
inquiry “has nothing to do with discerning what is in the
mind of the individual officer conducting the search,”
547 U.S. at 405, it did so based on its prior decision in City
of Indianapolis v. Edmond, 531 U.S. 32 (2000)—a case we
addressed in Orozco. There, we properly construed
Edmond’s similar characterization of programmatic
inquiries as one limited to “the context of an invalid
programmatic scheme.” Orozco, 858 F.3d at 1212. More
importantly, in the years following Brigham City, the
Supreme Court has continued to explain that it has “never
held, outside limited contexts such as an ‘inventory search
or administrative inspection, that an officer’s motive
invalidates objectively justifiable behavior under the Fourth
Amendment.’” Kentucky v. King, 563 U.S. 452, 464 (2011)
(emphasis added) (internal alteration omitted) (quoting
UNITED STATES V. JOHNSON 27
Whren v. United States, 517 U.S. 806, 812 (1996)); see also
Fernandez v. California, 134 S. Ct. 1126, 1134 (2014)
(quoting King, 563 U.S. at 464).
Consistent with the Supreme Court’s instructions on this
point, Orozco requires that we first assess whether there is
“objective evidence supporting a charge of pretext” for an
alleged administrative search. 1 858 F.3d at 1213 (internal
quotation marks omitted). If there is, we may then look to
evidence of the “officer’s subjective purpose.” 2 Id. This
approach is hardly unique. The Eighth Circuit advanced the
same interpretation of Supreme Court precedent in United
States v. Rowland, 341 F.3d 774 (8th Cir. 2003). There, the
court concluded that the officers’ failure to follow
“standardized procedures . . . coupled with the fact the
officers disregarded items without evidentiary value”
1
Here, as the opinion notes, the record contains both objective
indicia of the officer’s pretextual motives as well as admissions from the
officers themselves. First, the PPB officers selectively seized items from
the car during the alleged inventory search. Their incomplete inventory
left behind a bag of clothes, a GPS device, a DVD player, and a power
station for tools. Second, the seized items were placed into evidence as
opposed to property. Third, the seized $7,100 in funds were forwarded
to another office for potential civil forfeiture proceedings.
2
This is also consistent with our earlier decision in United States v.
McCarty, 648 F.3d 820 (9th Cir. 2011). In McCarty, we noted that as
long as the initial inventory search was undertaken pursuant to a
legitimate administrative search scheme and the officer operated only
within the scope of that scheme, the presence of a “second, subjective
motive” would not nullify the fruits of that search. 648 F.3d at 834–35.
In Orozco, there was no administrative search motive. As we observed,
“the only purpose of the stop of Orozco’s truck was to investigate
criminal activity,” 858 F.3d at 1216 (emphasis added), and the search
would not have taken place at all absent the impermissible motive.
Orozco and McCarty address two different circumstances involving an
inventory search.
28 UNITED STATES V. JOHNSON
suggested that the inventory search was pretextual and
therefore invalid. Id. at 782; see also United States v. Taylor,
636 F.3d 461, 465 (8th Cir. 2011) (concluding the inventory
search was invalid because the searching officer’s testimony
demonstrated that the search was “merely a pretext for an
investigatory search”). The Fourth Circuit has similarly
concluded that a defendant “may only succeed in
challenging the search of the bags . . . by showing that [the
officer’s] search was motivated by ‘an investigatory police
motive.’” United States v. Banks, 482 F.3d 733, 741 (4th
Cir. 2007) (quoting South Dakota v. Opperman, 428 U.S.
364, 376 (1976)); see also United States v. Matthews,
591 F.3d 230, 235 (4th Cir. 2009) (“For the inventory search
exception to apply, the search must have ‘been conducted
according to standardized criteria,’ such as a uniform police
department policy, Bertine, 479 U.S. at 374 n.6, and
performed in good faith, Banks, 482 F.3d at 739.” (internal
alteration omitted)).
In fact, the vast majority 3 of our sister circuits have
concluded that under Supreme Court precedent, a police
3
Judge O’Scannlain’s concurrence takes issue with this description
as “unfounded.” O’Scannlain Con. at 20. By my count, however, at
least eight of our eleven sister circuits have issued decisions consistent
with our approach in Orozco. In support of their contention, my
colleagues reference the First and Fifth Circuits and an unpublished
decision from the Tenth Circuit. O’Scannlain Con. at 20–22. The First
Circuit’s opinion in United States v. Hawkins, 279 F.3d 83 (1st Cir.
2002), however, is not inconsistent with Orozco. Id. at 86 (“The
subjective intent of the officers is not relevant so long as they conduct a
search according to a standardized inventory policy.” (emphasis added));
see also United States v. Acosta-Colon, 741 F.3d 179, 207 (1st Cir. 2013)
(“[I]f the arrests are legal, then the police can take the car back to the
barrack and search it pursuant to standard inventory procedures—
provided also that they do not ‘act in bad faith or for the sole purpose of
investigation.’” (internal alterations omitted) (quoting Bertine, 479 U.S.
UNITED STATES V. JOHNSON 29
officer’s subjective motive is relevant when assessing the
constitutionality of an administrative search. See, e.g.,
United States v. Mundy, 621 F.3d 283, 293 (3d Cir. 2010)
(concluding that there was no evidence demonstrating “that
the officers conducted the inventory search as pretext or in
bad faith”); United States v. Lopez, 547 F.3d 364, 370 (2d
Cir. 2008) (“Our court has noted that a consideration in
determining the reasonableness of an inventory search is
whether the officials conducting the search acted in good
faith pursuant to standardized criteria or established
routine.” (internal quotation marks and alterations omitted));
United States v. Tackett, 486 F.3d 230, 232 (6th Cir. 2007)
(“[O]fficers must conduct a permissible inventory search in
good faith, not as a pretext for criminal investigation.”);
United States v. Haro-Salcedo, 107 F.3d 769, 773 (10th Cir.
1997) (concluding that a search “conducted for investigatory
rather than administrative purposes[] could not properly be
characterized as an inventory search”); 4 United States v.
Khoury, 901 F.2d 948, 959 (11th Cir. 1990) (“The inventory
at 372)). Nor, as I explain later, may an unpublished decision supersede
a published opinion arriving at the opposite conclusion.
4
Judge O’Scannlain’s concurrence also takes issue with United
States v. Haro-Salcedo, 107 F.3d 769 (10th Cir. 1997), and suggests that
my reliance on it is “curious[].” O’Scannlain Con. at 21 n.2. I find it
more curious that my colleagues rely on an unpublished decision to reject
the legal conclusions of a precedential opinion. Unpublished decisions
in the Tenth Circuit are “not binding precedent.” United States v. Goff,
314 F.3d 1248, 1250 (10th Cir. 2003). Accordingly, the Tenth Circuit
must follow its published opinions over unpublished decisions. See
Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1161 n.3 (10th Cir. 2003).
Moreover, a Tenth Circuit post-Brigham City decision reiterates that
even for inevitable discovery purposes, the government may only rely on
a hypothetical inventory search if “such a search would not have
transgressed its administrative purposes.” United States v. Martinez,
512 F.3d 1268, 1274 (10th Cir. 2008) (emphasis added).
30 UNITED STATES V. JOHNSON
search, when conducted according to standardized routine in
furtherance of the legitimate goals of the inventory, is an
exception to the warrant requirement.”); United States v.
Whitfield, 629 F.2d 136, 139 n.5 (D.C. Cir. 1980)
(concluding the inventory search was invalid because “the
police stopped the car solely with an investigatory purpose
in mind”). But see United States v. McKinnon, 681 F.3d 203,
210 (5th Cir. 2012) (“The reasonableness inquiry under the
Fourth Amendment is an objective one, wholly divorced
from the subjective beliefs of police officers.” (quoting
United States v. Castro, 166 F.3d 728, 734 (5th Cir. 1999)
(en banc) (per curiam)).
That these cases do not, for the most part, mention
Brigham City only supports my point. A lone paragraph in
Brigham City cannot supplant the Supreme Court’s lengthy
history of examining officer motives in the context of
administrative searches. Indeed, the Supreme Court itself
has continued to assert post-Brigham City the validity of
such a motive-based inquiry. See King, 563 U.S. at 464(explaining that an officer’s motive for an inventory search
can invalidate objectively justifiable behavior under the
Fourth Amendment).
I see no need to revisit our decision in Orozco.