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United States v. Green

United States Court of Appeals, Eighth Circuit

July 12, 2019

United States of America Plaintiff - Appellee
v.
Michael A. Green Defendant-Appellant

          Submitted: February 14, 2019

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

          SMITH, Chief Judge.

         Michael Green entered a conditional plea of guilty to possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Green conditioned his plea on his retaining the right to appeal the district court's[1] denial of his motion to suppress evidence seized pursuant to an inventory search of his vehicle. He asserts on appeal that officers violated the Grandview, Missouri, Police Department's tow policy, and therefore the Fourth Amendment, when they ordered a tow for the disabled vehicle he occupied. He contends the district court should have suppressed inculpatory evidence obtained during the vehicle's inventory search. Upon review, we affirm the denial of the motion to suppress.

         I. Background

         On the morning of September 4, 2014, Grandview, Missouri Police Officer Andrew Bolin answered a call about a suspicious person at 14700 Pine View Drive. When he arrived on the scene, Officer Bolin found Green asleep in the driver's seat of a 1996 Saturn sedan with its hood and trunk open. The car was parked in front of a stop sign near a busy residential intersection. Officer Bolin ran the license plate. The plate came back associated with a 1988 Oldsmobile and was registered to a Katherine Gooch in Boonville, Missouri.

         Green awoke and explained to Officer Bolin that he was staying at a nearby motel and that his car had broken down the night before. When Officer Bolin asked for his driver's license, Green produced only an identification card. Officer Bolin confirmed with dispatch that Green did not have a valid driver's license. Dispatch also informed him that Green was on supervision following convictions for burglary and possession of a controlled substance and was known to be armed.

         Officer Bolin asked Green for consent to search the car. Green declined. Green told him that his girlfriend, Katherine Gooch, owned the car, and provided a phone number, but he then said that the number belonged to a different girlfriend. Officer Bolin decided to have the car towed because the car was disabled on a public roadway, blocking an intersection, with improper license plates, and Green did not have a valid driver's license even if the car would have started.

         Green wanted to remove some of his property from the car, but Officer Bolin would not release any property that was not clearly identifiable as belonging to Green. Officer Bolin issued Green two traffic citations and informed him that he was free to go. Officer Bolin conducted an inventory search and found a zip pouch containing $500, a bubble pipe, and a baggie containing about three grams of methamphetamine. He also found two more bags containing 387 grams of methamphetamine. Green was arrested and later indicted for possession with intent to distribute methamphetamine. He filed a motion to suppress the evidence discovered during the inventory search.

         Citing the police department tow policy's definition of a "Custody Tow," the district court determined that the tow policy gives an officer discretion to tow a vehicle when it is "disabled on a public street." United States v. Green, No. 4:15-cr-00249, 2017 WL 902907, at *1 (W.D. Mo. Mar. 7, 2017). The district court concluded that the tow of Green's disabled vehicle complied with the standardized towing procedures. Thus, Officer Bolin's possible investigatory motive in towing the car and conducting the inventory search did not matter because the car would have been searched anyway due to its lawful impoundment. Green pleaded guilty following the district court's denial of his motion to suppress. As part of a plea deal, Green reserved the right to appeal the denial of the suppression motion.

         II. Discussion

         On appeal, Green raises a compound issue: "Does the seizure of a vehicle and a purported inventory search violate the Fourth Amendment if the police officer involved does not follow the police department's tow policy and seizes the car because he believes it might be stolen or contain stolen property?" Appellant's Br. at 2. This appeal, as Green states it, posits that Officer Bolin violated the Fourth Amendment by towing the car that Green occupied. Green bases that contention on two conditions he believes were present at the time the car was towed: (1) Officer Bolin did not follow the police department's tow policy, and (2) Officer Bolin's real reason for towing the car was his suspicion it might be stolen or contain stolen property. Green disputes the district court's interpretation of the tow policy as well as some of the court's factual findings. He argues that the vehicle must have qualified as "abandoned" in order for this tow to have been properly classified as a "Custody Tow" under the department's tow policy. He also claims Officer Bolin violated the policy by not allowing Green to call for a tow himself-an allowance he asserts the policy's "Non-custody Tow" procedures mandate. He argues that this violation, coupled with the officer's improper investigatory motive, rendered the subsequent inventory search unreasonable.

         We review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Sallis, 920 F.3d 577, 581 (8th Cir. 2019). "We will affirm the district court 'unless the denial of the motion is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a ...


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