JOHN NATHANIEL HILL, PETITIONER V. UNITED STATES OF AMERICA No. 90-7179 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A9-A19) is unreported, but the judgment is noted at 920 F.2d 934 (Table). An earlier opinion of the court of appeals (Pet. App. A1-A7) is also unreported, but the judgment is noted at 878 F.2d 1436 (Table). The opinion of the district court denying petitioner's motion to suppress (Pet. App. A26-A33) is unreported. JURISDICTION The judgment of the court of appeals was filed on December 18, 1990. A petition for rehearing was denied on February 5, 1991 (Pet. App. A20). The petition for a writ of certiorari was filed on February 20, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether police officers violated petitioner's rights under the Fourth Amendment when, while conducting an inventory search of petitioner's automobile, they opened several closed containers and seized drugs found inside them. STATEMENT After a plea of guilty in the United States District Court for the Southern District of Ohio, petitioner was convicted of possession of cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 84 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. A1-A7. This Court vacated the judgment of the court of appeals and remanded for further consideration in light of Florida v. Wells, 110 S. Ct. 1632 (1990). Pet. App. A8. On remand, the court of appeals again affirmed petitioner's conviction. Pet. App. A9-A19. 1. On April 27, 1988, Sergeant Larry Baird of the Ohio State Highway Patrol observed an automobile driven by petitioner pull to the side of Interstate 71 in Delaware County, Ohio. Sergeant Baird thought that petitioner might be in need of assistance and pulled off the road behind him. Baird left his patrol car and approached petitioner, who had opened the hood of his car and was standing by the roadway. As Baird approached, petitioner asked Baird to call a tow truck. Baird agreed to do so, but asked to see petitioner's driver's license and vehicle registration. Petitioner could not produce a valid license or registration. Pet. App. A26-A27. Baird radioed the local Highway Patrol station and learned that petitioner did not have an Ohio driver's license and that his Florida license had expired. Baird also learned that the car that petitioner was driving was registered to a Florida resident named Cooper and that the license plates on the car were registered to an automobile owned by a woman in Ohio. Pet. App. A27. Sergeant Baird placed petitioner under arrest for driving without a license. Petitioner was handcuffed, placed in the patrol cruiser, and informed that his car would be towed and subjected to an inventory search. Id. at A2. While waiting for a tow truck to arrive, Sergeant Baird and another officer began to inventory the contents of the car. On the front seat, Baird found a can of cheese balls. He opened the can and discovered that it had a false bottom. Baird then cut into the can with a knife and pried open the false bottom. Beneath it, he found a plastic bag that appeared to contain crack cocaine. Pet. App. A27-A28. Proceeding with the inventory search, Sergeant Baird found a cloth drawstring Seagram's bag under the front seat. The bag contained small amounts of marijuana and cocaine. Id. at A28. Later, at the Highway patrol station, Baird continued to inventory the vehicle's contents. In an opaque plastic storage bag in the trunk of the car, he discovered additional cocaine, a shaving kit containing approximately $3,000 in cash, and a loaded pistol. Ibid. 2. Petitioner moved to suppress the evidence seized from the car, arguing that Sergeant Baird's search of the car was not a legitimate inventory search. After a hearing, the district court denied the motion. Pet. App. A26-A33. The district court found that the search of petitioner's car was conducted pursuant to a written policy of the Ohio State Highway Patrol. The Highway Patrol regulations provided that it was the Patrol's policy "to inventory all vehicles with which we become involved where the owner or agent of the owner is unable to assume control of the property" and that "(t)he scope of the inventory * * * is the responsibility of the officer whose signature appears on the * * * inventory report." Pet. App. A30. The regulations also addressed the implications of inventory searches of personal luggage. Id. at A30-A31. /1/ The court concluded that the validity of the search was not undermined by the fact that the written guidelines did not "specifically set forth the procedures to be followed for every sort of container." Pet. App. A31. It reasoned that it "would be impossible to anticipate all of the possible types of containers which might be encountered by an officer." Ibid. In this case, the court determined, there was nothing that indicated "that the search of the cheese ball container was a subterfuge for criminal investigation rather than a legitimate caretaking procedure." The court noted that Sergeant Baird had testified that he was surprised to find a controlled substance, and explained that after observing the false bottom of the container, Baird "could logically and reasonably conclude that something of value was hidden underneath." The court concluded that the investigation of the false bottom was within the proper scope of an inventory search. Pet. App. A31-A32. The district court also determined that Sergeant Baird's discovery of crack in the bottom of the container and other circumstances provided probable cause for a further search. Under this Court's decision in United States v. Ross, 456 U.S. 798 (1982), the court explained, the officer could permissibly search the remainder of the car, including any containers found within it. The court also noted that Sergeant Baird was entitled to continue the inventory search of the remaining items in the vehicle, including the cloth Seagram's bag. Pet. App. A32. Finally, the court found an "additional justification" for the search of the cheese ball container and the cloth bag in this Court's decision in New York v. Belton, 453 U.S. 454 (1981). The court explained that under Belton the police were entitled to conduct a search incident to petitioner's lawful arrest of the contents of the passenger compartment of his car, including containers in it. Pet. App. A33. After the district court denied petitioner's motion to suppress, petitioner entered a conditional guilty plea to one count of his three-count indictment in accordance with Fed. R. Crim. P. 11(a)(2), reserving his right to appeal the district court's denial of his motion to suppress. Pet. App. A2. 3. The court of appeals affirmed, rejecting petitioner's claims that the inventory search in this case was overbroad and that its purpose was to gather evidence, rather than to protect property. The court concluded first, Pet. App. A5, that "Sgt. Baird's actions were justified by the government's legitimate interests in arresting (petitioner) for driving without a valid license and in securing (petitioner's) automobile prior to impound," and second, id. at A6, that Baird "acted reasonably to insure his personal safety; to protect (petitioner's) property from loss, theft, or police negligence; and to efficiently conduct the inventory search." The court of appeals also found that "Sgt. Baird exercised reasonable discretion within the bounds of the Ohio regulations," and it upheld the district court's determination that the absence of written guidelines specifically addressing containers did not undercut the validity of the search. Ibid. 4. Petitioner filed a petition for a writ of certiorari in this Court. The Court granted the petition, vacated the judgment, and remanded for further consideration in light of Florida v. Wells, 110 S. Ct. 1632 (1990). Pet. App. A8. On remand, the court of appeals examined the holding in Wells and again affirmed petitioner's conviction. Pet. App. A9-A19. The court found that the Ohio State Highway Patrol Policy "was 'designed to produce an inventory.'" Pet. App. A14 (quoting Wells, 110 S. Ct. at 1635). In particular, the court found that regulations required the officer to inventory a vehicle and that "the regulation presumes the contents of personal luggage will be inventoried." Pet. App. A15. Noting that Wells held that police officers may exercise some latitude in determining whether a particular container within a vehicle should be opened, the court determined that "Sergeant Baird's actions were well within that latitude and were in obedience to Ohio's standardized criteria that police officers will 'inventory all vehicles.'" Id. at A15-A16. Judge Keith dissented. In his view, the Ohio State Highway Patrol regulations "impermissibly give individual patrolmen 'uncanalized discretion' to open or not to open closed containers encountered during inventory searches." Pet. App. A19 (quoting Wells, 110 S. Ct. at 1635). Judge Keith did not believe reversal was warranted, however; instead he argued that the case should be remanded to the district court so that the parties could be "given an opportunity to present evidence and arguments concerning the propriety of the Ohio Regulations governing inventory searches." Pet. App. A19. ARGUMENT Petitioner contends (Pet. 9-19) that the inventory search of his automobile violated the Fourth Amendment. In particular, he argues that the Ohio State Highway Patrol Regulations do not sufficiently regulate the discretion of officers in conducting inventory searches of closed containers. For this reason, petitioner asserts, the court of appeals' decision is inconsistent with the decision in Florida v. Wells, supra. Inventory searches of automobiles conducted without a warrant do not violate the Fourth Amendment if the officers conducting the inventory act pursuant to standardized police procedures. See Colorado v. Bertine, 479 U.S. 367, 374 (1987); South Dakota v. Opperman, 428 U.S. 364, 372 (1976). In Wells, this Court held that absent a policy with respect to the opening of closed containers during an inventory search, officers making an inventory cannot open closed containers without violating the Fourth Amendment. The Court made clear, however, that inventory search policies need not require officers to conduct such searches "in a totally mechanical 'all or nothing' fashion." 110 S. Ct. at 1635. Instead, "(a) police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and the characteristics of the container itself." Ibid. For example, the Court noted, an inventory search policy may permissibly "allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exterior." Ibid. In this case, the Ohio State Highway Patrol regulations required an inventory of all cars coming into the possession of the Patrol. In addition, the policy required that the officer conducting the inventory must "carefully protect and preserve * * * any article or property removed." As the court of appeals found, "(t)he reference to articles and property must include closed containers." Pet. App. A15. Moreover, the regulation, by warning officers that evidence derived from opening personal luggage may not be admissible, plainly contemplated that the officer compiling the inventory would open, inspect, and inventory closed containers. Because Ohio's policy required the inventory of all impounded cars, and addressed the issue of container searches, this is not a case in which an officer was authorized to engage in "a general rummaging in order to discover incriminating evidence." Wells, 110 S. Ct. at 1635. To compile a complete inventory, the policy allowed officers to inspect closed containers. It is true that the policy did not specifically require that officers open either all containers or none, but Wells does not so mandate; rather, the reasonable exercise of judgment pursuant to a standardized policy does not violate the Fourth Amendment. Under those standards, Sergeant Baird's inventory of petitioner's car pursuant to the Ohio State Highway Patrol policy was reasonable. After initiating the search, Sergeant Baird, acting pursuant to the policy, properly determined to inspect the interior of the cheese ball container, the cloth Seagram's bag, and the opaque plastic bag. If he had not opened those containers under the circumstances, he would have failed to comply with the directive of Ohio's policy to make an inventory of petitioner's property. /2/ In any event, petitioner's objections to the search would fail even apart from the inventory search doctrine. The initial search of the cheese ball container was valid as a search incident to arrest, see New York v. Belton, 453 U.S. 454 (1981), and once Sergeant Baird opened the cheese ball container and discovered crack cocaine, he had probable cause to conduct a search of the remainder of the car to determine whether petitioner was transporting any more drugs, paraphernalia, or related items. See United States v. Ross, 456 U.S. 798 (1982). /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney APRIL 1991 /1/ The regulations stated that "(r)ecent court opinions have reflected that luggage has a greater expectation of privacy than does a vehicle. Any evidence found via the inventory of the contents of personal luggage is not admissible in court." Pet. App. A31. /2/ Petitioner contends (Pet. 16) that Sergeant Baird could not have acted pursuant to the Ohio State Highway Patrol policy because, at the suppression hearing, he testified that he was unaware of it. The district court found, however, that "(t)he inventory search here was conducted pursuant to a written policy of the Ohio State Highway Patrol." Pet. App. A30. In addition, the court of appeals considered the validity of the search in light of the Ohio policy. /3/ The district court found that both of these justifications supported the search, Pet. App. A32-A33, and the court of appeals did not need to address those issues in light of its determination on the inventory search issue, id. at A7 n.3.