Not-So-Clean Getaway: Next Time, Make Sure YOUR Tow Truck Gets There First

UNITED STATES v. LE, USCA-8 No. 06-2224, 2007 U.S.App. LEXIS 1329, appeal from USDC-NDD, before Chief Circuit Judge Loken, Circuit Judge Melloy, and USDJ-MND Schiltz sitting by designation, opinion by Melloy, filed 22 Jan 2007.

LONG STORY SHORT: Opening closed containers per department policy during an inventory search of a vehicle found wrecked near a highway is not an unreasonable search. Binding in AR, IA, MN, MO, ND, NE, SD.

FACTS: At 0850 on 11 February 2004, North Dakota Highway Patrol Trooper Vance found a SUV lying on its side in a ditch about 40 feet south of I-94. No one was in or near it, and no one had reported an accident to any nearby LE agency. A blizzard had passed through the area the day before and road conditions were still poor, and the SUV was visible from the interstate, meaning that motorists would probably stop and try to help, endangering themselves and others. Since NDHP policy was to impound any abandoned vehicle that constituted a hazard, Trooper Vance called a towing company. The tow operator was able to right the SUV, and also, Trooper Vance learned that a woman had called the same tow company earlier that morning regarding the SUV.

NDHP policy required a detailed inspection and inventory of all impounded vehicles. Trooper Vance looked in the glove box and found no evidence of ownership other than a card with a rental company's phone number, but he also saw a suitcase and some large duffel bags in the back seat area. Following his standard inventory search practice that he had learned in training, Trooper Vance removed one duffel bag and opened it, finding a number of heat-sealed packages of marijuana. He searched the other duffel bags and documented 216 pounds of marijuana in them. Later, Defendant and another woman were identified as the occupants of the SUV; they had been transporting the marijuana from Seattle to Minneapolis when they wrecked during the 10 February blizzard.

PROCEDURE: The United States charged Defendant by information with possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Defendant moved to suppress the marijuana, arguing that Trooper Vance's seizure and search of the SUV were unreasonable, specifically that the SUV did not amount to a traffic hazard and that NDHP policy granted troopers too much discretion to impound and inventory-search vehicles. The U.S. District Court for the District of North Dakota ruled that Trooper Vance's impoundment and search were not unreasonable under the circumstances, and in the alternative, that Defendant and her companion had abandoned the SUV, depriving them of standing to contest the search. SUPPRESSION DENIED. On condition that she could still appeal the denial of suppression, Defendant pleaded guilty as charged and received a 30-month sentence. Defendant appealed to the U.S. Court of Appeals to the Eighth Circuit on the same grounds as before.

DECISION: Impounding a vehicle does not offend the Constitution so long as the decision to do so is per a standard policy, even one that gives officers some discretion, and also, the purpose for impounding must be something other than suspicion of criminal activity. Here, Trooper Vance reasonably estimated that other motorists would stop and try to help, compounding the bad driving conditions in that area. There was no evidence that Trooper Vance had any motive other than safety when he decided to tow and impound Defendant's SUV, so its seizure was not unreasonable under the Fourth Amendment.

Once a vehicle is impounded, an inventory search is generally reasonable and falls within an exception to the general warrant requirement. Unless the totality of the circumstances render an inventory search unreasonable, whatever officers find during a detailed inspection and inventory per department policy will not be suppressed. Here, NDHP policy and Trooper Vance's standard procedure of opening closed containers were not unreasonable. Since the inventory search did not violate the Fourth Amendment, the Eighth Circuit did not consider the trial court's alternative ground of abandonment. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Remember when they used to advertise SUVs as much safer than regular cars because they were based on trucks and had 4WD? Now we know that when the snow begins to blow, the first thing you see is one stuck or wrecked SUV after another. Dope-slingers ought to have figured this out by now, but I guess 216 pounds of weed wouldn't quite fit in a Civic trunk. Good on Trooper Vance for getting this thing out of the way. I'd say the hazard isn't people stopping to help; it's the 12,000 looky-loos on the interstate who have never ever seen a turned-over SUV before and just have to slow everybody else down.