Updated: 01-07-16
Firearm Laws
Search & Seizure

United States v. Cherry,   436 F. 3d 769  ( C.A. 7, Ill.,  2006)

    This case demonstrates how, despite valid grounds for suppressing evidence

exist, the Court’s reliance on the doctrine of “inevitable discovery” can defeat

a motion to suppress. Typical of the plea scenario in  “felon in possession of firearm” cases , notwithstanding a guilty plea, the defendant preserved his right to challenge on appeal the denial of his motion to suppress evidence of the gun found in his possession.

     Underlying the “inevitable discovery” doctrine is the hard-nosed position

of  federal courts (most significantly the 1ST District and 7th Circuit)  regarding inventory searches.  While the doctrine of “inevitable discovery” requires the prosecution prove by a preponderance of the evidence that the authorities would have found the challenged evidence through lawful means, even if unlawful means were used initially to uncover the evidence, “inventory searches are a recognized exception to the warrant and probable cause requirements of the Fourth  Amendment.” United States v. Wilson, 938 F. 2d 785, 788 (7thCir. 1991). There-fore, the prosecution’s burden of proof, as in this case, is not very difficult.


Facts:  Joliet police officers stopped the defendant on an interstate highway for speeding and failing to signal a lane change. One officer testified that he smelled marijuana when he approached the defendant’s vehicle. And, after another officer signaled him that he spotted contraband, the officer viewed a bag protruding from defendant’s pocket as he exited his vehicle that turned out to contain marijuana. Upon the defendant’s failure to show proof of insurance, the officer wrote out a tow sheet while two officers conducted an inventory search of the vehicle that uncovered a gun in the trunk.

District Court Decision: The defendant was charged only with the illegal firearm possession, and the District Court held that the circumstances of the traffic stop were sufficient to authorize the inventory search—defendant having no proof of insurance and unable to move his car from alongside the interstate.  The Joliet P.D. had a written policy authorizing  officers to tow the vehicle and conduct an inventory search when the driver lacks proof of insurance.
The District Court Judge, while giving no credence to the open view marijuana testimony, nonetheless held that the inventory search had been authorized based on the police department’s written policy, and  the motion to suppress evidence regarding the discovered firearm was denied pursuant to the doctrine of “inevitable discovery.”

Appellate Court Decision
Following are highlights of Justice Kanne’s opinion, with Justice Coffey concurring ( with some omissions not noted in the quoted text, and my comments in italics).
    The majority notes that notwithstanding the parties’ arguments regarding the justification for applying the “inevitable discovery” doctrine, “resort[ing] to that doctrine is unnecessary.   The ‘inevitable discovery’ doctrine is a means for the government to avoid suppression of evidence obtained as a result of unlawful conduct by the police., see e.g., United States v. Brown, 328 F. 3d 352, 356 (7th Cir. 2003); U.S. v. Langford, 314 F. 3d 892, 895 (7th Cir. 2002), and for the doctrine to apply the government must prove by a preponderance that the authorities ‘would have found the challenged evidence through lawful means.’  U.S. v. Jones, 72 F.3d 1324, 1334 (7th Cir. 1995). . . “ [additional citations omitted].
     [ The Court goes on to note that the government abandoned its arguments regarding the search based on the officer having “smelled marijuana” and makes the observation that this factor “provided a simple and compelling foundation for  searching Cherry and ultimately the car including the trunk, see U.S. v. Wimbush, 337 F.3d 947, 950-51 (7th Cir. 1991).” Instead, the government focused on the fact that Cherry lacked proof of insurance, and under Joliet Police department policy, the vehicle could be towed,  and an inventory search conducted  accordingly.
   Cherry urged a different interpretation of the policies. Having not argued that the police engineered the initial stop as a subterfuge for criminal investigations.
See South Dakota v. Opperman, 428 U.S. 364, 371, n. 5, 96 S. Ct. 3092 (1976),                       he argued, instead,  that “ the pertinent police policy section is exhaustive as to the circumstances under which a tow is authorized.”]The Court responded thusly:
      “.  .  . That contention, however, ignores that Cherry’s car was towed not only because he lacked proof of insurance, but also because the car could not be left alongside the highway without creating a hazard—a circumstance not addressed in General Order 17-18. General Order 17-4, which Cherry does not confront, explicitly addresses parked vehicles that present a hazard and provided unambiguous authority to tow Cherry’s car.
     “ .  .  .That directive does not compel the officers at the scene to invite or accept input from the motorist as to the appropriate disposition of his vehicle, nor does the Fourth  Amendment demand that police offer a motorist an alternative means of removing his vehicle that will avoid the  need to tow it and conduct an inventory search.  See Colorado v. Bertine, 479U.S. 367, 373-74, 107 S. Ct. 738  (1987) . . . Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605 (1983).
     “.  .  . [T]he police were free to tow his hazardously parked car pursuant to their standard policy, in furtherance of their ‘community caretaking’ function. See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523 (1973).  
.  .  .Affirmed.

NOTE:  For an interesting comparison of a State Court’s view of the police

“ community caretaking” function see People v. Travis Smith, 346 Ill. App. 146  at Archives.  That case was affirmed by the Illinois State Supreme Court. 214 Ill. 2d 338.


Dissenting Opinion: The dissent in this case warrants viewing.  Justice Posner

pointed out the inconsistencies in the Joliet police department’s policy, and measured its applicability in terms of Fourth Amendment protections. The police should have no constitutional right to an inventory search unless the vehicle is legally impounded and the owner deprived of its custody. See U.S. v. Privett, 68 F. 3d 101, 104 (5th Cir. 1995).

     The Joliet tow policy, with its correlating “inventory search”authorization, does not stand up to constitutional muster when viewed in light of the conflicting language that, on one hand,  provides for an inventory search  whenever the police order towing,  and, on the other, towing if the driver has no proof of insurance, but impoundment only if, in addition, the driver does not have a valid driver’s license (which Cherry did have). The Joliet ordinance also gave the driver the option of having the vehicle towed to a destination of his choice, including his home. In  reaching his conclusion, Justice Posner noted the following (with some omissions not noted  in the highlights’ quoted text):

    Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632 (1990) holds that inventory searches are proper only when they are conducted pursuant to ‘standardized criteria’ or ‘established routine.’ Id. @ 4, 110 S. Ct. 1632 [citing further, Bertine, Opperman (supra) and U.S. V. Wilson,  938 F. 2d 785, 788 (7th Cir. 1991)]. That makes it sound as if the constitutionality of the search depends on whether the police have complied with local law. But that can’t be right. If the local law violates the Constitution, compliance with the local law cannot justify the search; and if a search is reasonable within the meaning of the Fourth Amendment, the fact that it violates local law does not give the defendant a federal remedy. U.S. v. Delaporte, 42 F. 3d 1118,1119 (7th Cir. 1994) [Additional citations omitted].

     [ Joliet p/d’s general order, in pertinent part enforcing the State’s mandatory insurance requirements, also contains  provisions allowing for police tow in the event the vehicle is illegally parked.]

     “.  .  .That is the provision of Joliet’s policy on which the majority hangs its hat.  But the only reason Cherry’s car was illegally parked was that he’d been pulled over by the police, so he was present and therefore there was no need for the police rather than Cherry to handle the tow.  It would be bootstrapping for the police to argue that if they want to search a car that they’ve stopped for speeding, or some other traffic offense that would not ordinarily justify a search of the car, all they have to do is to arrange to stop it in a place where it cannot be parked legally.  That would be to use the policy on inventory searches to authorize illegal investigatory searches.

     “.  .  . An inventory search has to be in service of a legitimate interest unrelated to suspicion of criminal activity if it is to comply with the Constitution.

.  .  . The police of course searched Cherry’s car not because they thought they were conducting an inventory search but because they were looking for marijuana, so their conduct cannot fill a gap in the policy. In sum, then, neither the Joliet policy, nor the circumstances, justified the police in impounding Cherry’s car; and without impoundment, there was no justification for an inventory search of the car.  .  .  Unless it’s impounded and the owner therefore deprived of  custody of its contents, there is no constitutional basis for an inventory search.  United States v. Privett, 68 F. 3d 101, 104 (5th Cir. 1995).
     “ .  .  .  The judgment cannot be upheld on the basis of the district court’s reasoning.  The case should be remanded for a determination of the credibility of the officer who testified that he smelled marijuana.  If the testimony is credited by the district judge, there was probable cause to search the car; if not, not, and the evidence of the gun should be suppressed.

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