ROGER G. KORNEGAY, PETITIONER V. UNITED STATES OF AMERICA No. 89-6743 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals, Pet. App. A, is reported at 885 F.2d 713. The order of the district court denying petitioner's motion to sjuppress, Pet. App. C, is unreported. JURISDICTION The judgment of the court of appeals was entered on September 25, 1989. Pet. App. A. A petition for rehearing was denied on December 15, 1989. Pet. App. B. The petition for a writ of certiorari was filed on February 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether law enforcement officers lawfully impounded petitioner's car and inventoried its contends following his arrest. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Oklahoma, petitioner was convicted on two counts charging the interstate transportation and sale of a stolen tractor, in violation of 18 U.S.C. 2312 and 2313 respectively. He was sentenced to consecutive terms of five years' imprisonment on each count and ordered to make restitution in the amount of $13,471.25. The court of appeals affirmed. 1. The evidence at the suppression hearing and at trial showed that on May 13, 1987, an individual delivered two John Deere tractors to Southwest Auction in Texas for sale on consignment. The individual asked that the proceeds from the sale be mailed to a post office box in Lone Star, Texas, in care of Richard Sanchez of Triple S Farms. Suppression Hearing Tr. 4-5. After the tractors were sold, Gary Milton, an employee of Southwest Auction, contacted the FBI because he was reluctant to mail a $55,000 check to a post office box. The agents contacted John Deere security and learned that the tractors were stolen. Upon further inquiry, they were unable to find either a Richard Sanchez or a Triple S farm in Lone Star, Texas. The agents did determine, however, that a Richard Sanchez had recently opened a bank account and a post office box in Lone Star. Consequently, the agents instructed Milton not to mail the check, but to wait until Sanchez called for his money. Gov't C.A. Br. 22; Suppression Hearing Tr. 5-6, 30-33. On May 19, 1987, a person identifying himself as Sanchez telephoned Southwest Auction and was told that he would have to pick up the check in person. The following day, petitioner drove to the auction house and parked in its lot. He was arrested inside the auction house immediately after he picked up the check. Petitioner showed the officers a drivers license in the name of Richard Sanchez. The individual in the license photo appeared to be someone other than petitioner. Gov't C.A. Br. 22-23; Suppression Hearing Tr. 6-7, 34-36, 51. The arresting agents went out to the parking lot and noticed that the Chevrolet Blazer in which petitioner had arrived bore a Missouri license plate placed on top of a Louisiana license plate. The car was registered to Circle F farms in Tallulah, Louisiana. The agents decided to impound the Blazer and conduct an inventory for the purpose of securing any valuables. They sought petitioner's permission for the inventory, but he refused. At the request of the FBI agents present, a specialist in automobile inventories from the Texas Department of Public Safety inventoried the contents of the Blazer using a standard inventory form. He opened a blue bank bag lying between the front seats on the console and found several wallets containing pieces of identification, jewelry, and approximately $10,000 in cash. During a subsequent warrant search, the agents found documents evidencing the interstate transportation of stolen tractors and other pieces of heavy equipment, including the tractor that is the subject of the indictment in the instant case. Gov't C.A. Br. 23-24; Suppression Hearing Tr. 7-14, 37-49. See Pet. App. A4. 2. The district court denied petitioner's motion to suppress the evidence revealed in the inventory search. The court found that the search was "reasonable in that it was done pursuant to standard procedures and for the purposes of securing the vehicle, protecting (petitioner's) property, protecting the agents from potential danger, and insuring the agents against claims for lost, stolen, or vandalized property." Pet. App. C4. The district court further found that the officer acted reasonably when he opened the bank bag in that the "efficient completion of the inventory search reasonably require(d) an itemized account of all property held by the agents." Ibid. The district court also found that the agents were not required to make other arrangements to secure the Blazer. Pet. App. C4-C5. 3. A divided court of appeals affirmed. It held that the agents acted reasonably in deciding to impound the Blazer, emphasizing that there was no person to whom they could have turned over custody of the vehicle. Petitioner was alone, and the agents knew of no other relative or companion who could take care of the car while petitioner was in custody because the agents did not know petitioner's true identity or his residence. If the agents had left the Blazer in the parking lot, it would have been vulnerable to theft or vandalism. Pet. App. A5-A6. The court of appeals further found that the agents acted lawfully in conducting an inventory search. The "initial routine inventory was conducted pursuant to standard procedures," according to the court of appeals, and the agednts "did the inventory because they were obligated to secure the vehicle's contents." Pet. App. A9. Although the court of appeals acknowledged that the procedures had not been memorialized in a written regulation, the testimony "established that it is the customary and standard practice when a vehicle is impounded." Ibid. Finally, the court of appeals held that the agents were entitled to open the bank bag as part of their lawful inventory search. "(T)he opening of the bank bag and the separate cataloguing of its contents was (itself) a standard practice and was reasonable, serving as it did the strong governmental interests of protecting (petitioner's) property while it was in official custody and insuring that no claims could be made that it had been lost, stolen or vandalized." Pet. App. A9. In this case, the "record contains no showing that the inventory was a pretext used to investigate for evidence of criminal activity." Ibid. Judge McKay dissented on the ground that the impoundment and inventory search were unnecessary because petitioner was arrested inside the auction house and his car was lawfully parked outside. Pet. App. A1-A2. ARGUMENT Petitioner insists that the agents acted unlawfully in impounding the Blazer rather than leaving it in the auction house parking lot. Pet. 8-11. Contrary to petitioner's contention, however, this Court's decisions make clear that where, as here, standard procedures require a custodial arrestee's vehicle to be impounded, the Fourth Amendment does not require agents to follow less intrusive means thought to be available in the individual case. Petitioner's less-intrusive-means argument is particularly inapt here, because petitioner was unaccompanied, the agents could not contact relatives or friends because they did not know petitioner's true identity, and it would have been unreasonable to abandon the vehicle in the auction house parking lot because it would have been vulnerable to vandalism and theft. /1/ 1. Petitioner does not dispute the findings of both courts below that the agents impounded his vehicle pursuant to standard procedures and for legitimate, non-investigatory purposes. Pet. App. A9, C4. Under these circumstances, it is well-settled that impoundment of a custodial arrestee's vehicle is reasonable under the Fourth Amendment. See Colorado v. Bertine, 479 U.S. 367 (1987); Illinois v. Lafayette, 462 U.S. 640 (1983); South Dakota v. Opperman, 428 U.S. 364 (1976). Petitioner nonetheless argues that impoundment is never permissible where the defendant is not with his car at the time of the arrest and the car is legally parked. Pet. 10. /2/ This Court's decisions make plain, however, that the "reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative 'less intrusive' means." Colorado v. Bertine, 479 U.S. at 374 (quoting Illinois v. Lafayette, 462 U.S. at 647). See United States v. Sokolow, 109 S.Ct. 1581, 1587 (1989). In this case, the agents' only alternative would have been to leave the Blazer unattended at the auction house for an indefinite period of time. The Fourth Amendment did not require the agents to follow that arguably "less intrusive" alternative. 2. Even if the agents were required to consider reasonable less intrusive alternatives, it would have been unreasonable to abandon the Blazer in the auction house parking lot. Petitioner had parked the car only briefly in a private lot that neither he, his family, nor his friends owned. Petitioner was alone and he had no companion to whom the agents could entrust the Blazer. /3/ Nor would petitioner have been able to take care of the car later that afternoon: petitioner had just been arrested on a felony charge; /4/ the agents did not know his true identity or his residence; /5/ and petitioner was arrested in Texas driving a car that bore license plates from Missouri and Louisiana. In these circumstances, where petitioner was unknown in the community and apparently traveled from State to State, the likelihood that he would be able to arrange for the safekeeping of the Blazer within the next couple of hours was remote, to say the least. See Bertine, 479 U.S. at 374; United States v. Young, 825 F.2d 60, 61 (5th Cir. 1987), cert. denied, 485 U.S. 1012 (1988). Impoundment was plainly justified to protect petitioner's property. It was also justified to protect the public. The unattended Blazer could have contained weapons, narcotics, or other dangerous articles that would have been accessible to any curious passerby. See Cady v. Dombrowski, 413 U.S. 433, 447-448 (1973); United States v. Feldman, 788 F.2d 544, 553 (9th Cir. 1986). For this additional reason, it would have been unreasonable for the agents to leave the Blazer in the auction house parking lot. They acted properly in protecting the Blazer "from unauthorized interference." Colorado v. Bertine, 479 U.S. at 373. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General PATTY MERKAMP STEMLER Attorney APRIL 1990 /1/ Petitioner does not renew his argument, pressed in the court of appeals, that even if the impoundment was lawful the agents could not inventory the contents of his vehicle and, in the course of that inventory, open closed containers such as his bank bag. Those contentions, as petitioner tacitly concedes, are foreclosed by Colorado v. Bertine, 479 U.S. 367, 374-375 (1987). Because petitioner does not challenge the authority of the agents to open the bank bag found in the Blazer, there is no reason to hold this case for Florida v. Wells, No. 88-1835 (argued Dec. 4, 1989). /2/ To the extent that petitioenr suggests that "some nexus" must exist between the vehicle and the arrest, Pet. 10, that connection exists here. Although petitioner was arrested in the auction house, he had left his car only moments before so that he could retrieve the check for the sale of the stolen tractors, and he was returning to his car when he was arrested. This brief separation between petitioner and his car did not lessen the need for impoundment. Cf. United States v. Arango, 879 F.2d 1501, 1506-1507 & n.2 (7th Cir. 1989) (search upheld although suspect was arrested one block away from his car after fleeing from the scene), cert. denied, No. 89-649 (Feb. 20, 1990). Indeed, there is no meaningful basis for distinguishing this case from a case in which a defendant is arrested while in or near his parked car. See, e.g., United States v. Frank, 864 F.2d 992, 1000-1005 (3d Cir. 1988) (impoundment of car parked in motel parking lot upheld), cert. denied, 109 S. Ct. 2442 (1989). /3/ Compare Duke v. Taylor Implement Co., 391 U.S. 216, 221 (1968) (police were willing to let a friend or relative take the car); United States v. Pappas, 735 F.2d 1232 (10th Cir. 1984) (defendant's friend who was with him at the time of his arrest or his nearby family could have taken care of the car). /4/ See United States v. Griffin, 729 F.2d 475, 480 (7th Cir.) (impoundment proper where defendant did not have a drivers license and companion was arrested on out-of-state bench warrant), cert. denied, 469 U.S. 830 (1984); United States v. Staller, 616 F.2d 1284, 1289-1290 (5th Cir.) (proper to impound legally parked car where out-of-state defendant would not be released soon), cert. denied, 449 U.S. 869 (1980); United States v. Gravitt, 484 F.2d 375, 380 n. 5 (5th Cir. 1973) (impoundment of car in motel parking lot proper where defendAnt would be detained for several days), cert. denied, 414 U.S. 1135 (1974). /5/ See Cabbler v. Superintendent, Va. State Penitentiary, 528 F.2d 1142, 1146 (4th Cir. 1975) (allowing impoundment where defendant is "arrested away from home"), cert. denied, 429 U.S. 817 (1976).