Opinion
Case No. 20-cr-00300-HSG-1
2020-10-30
USA, Plaintiff, v. James David ALLEN, Defendant.
Michael Anthony Rodriguez, U.S. Attorney's Office, San Francisco, CA, Noah Stern, United States Attorney's Office, Oakland, CA, for Plaintiff. Hanni Meena Fakhoury, Lisa, Ma, Federal Public Defender, Oakland, CA, Varell Laphalle Fuller, Federal Public Defender Northern District of California, San Jose, CA, for Defendant.
Michael Anthony Rodriguez, U.S. Attorney's Office, San Francisco, CA, Noah Stern, United States Attorney's Office, Oakland, CA, for Plaintiff.
Hanni Meena Fakhoury, Lisa, Ma, Federal Public Defender, Oakland, CA, Varell Laphalle Fuller, Federal Public Defender Northern District of California, San Jose, CA, for Defendant.
ORDER DENYING IN PART AND GRANTING IN PART MOTION TO SUPPRESS EVIDENCE
Re: Dkt. No. 20
HAYWOOD S. GILLIAM, JR., United States District Judge
Pending before the Court is Defendant James David Allen II's ("Defendant") motion to suppress (Dkt. No. 20, "Motion"), for which the briefing is complete. Dkt. No. 50 ("Opp."); Dkt. No. 59 ("Reply"). On October 19, 2020, the government sought permission to file a sur-reply, which the Court granted on October 20, 2020, and the Court allowed Defendant to file a response by October 21, 2020. Dkt. No. 79. On October 21 and 28, 2020, Defendant filed its responses to the government's sur-reply. Dkt. Nos. 80, 94. On October 21, 2020, the Court held a hearing on the Motion. Dkt. No. 82. At that hearing, the Court determined that an evidentiary hearing was necessary for the resolution of the Motion, and on October 26 and 28, 2020, the Court held that evidentiary hearing. Dkt. Nos. 91, 97. For the reasons set forth below, the Court DENIES in part and GRANTS in part the Motion.
I. FACTUAL BACKGROUND
On July 8, 2020, at approximately 10:36 a.m., Pinole Police Department ("PPD") dispatcher Terri Krieger ("Dispatcher Krieger") received a call that two abandoned vehicles were parked on the street in a residential neighborhood of Pinole, California. Hearing Ex. 2 (Detail Call For Service Report) at 3; Dkt. No. 78-1 ("Krieger Decl.") ¶ 3. The caller informed Dispatcher Krieger of the license plate numbers of both vehicles, and said that the "vehicles have been there for several days." Id.
In this order, the Court will cite to both to the declarations submitted in the record on the Motion and the transcripts of the evidentiary hearing, as appropriate. The parties stipulated to the inclusion of all the declarations and other evidence submitted with the papers in the hearing record. October 28, 2020 Hr'g Tr. at 196:2-19. The Court notes when it is resolving potential differences in the accounts in the declarations as opposed to those presented in testimony at the evidentiary hearing. This synopsis of the facts represents the Court's factual findings based on the totality of the record.
Dispatcher Krieger ran both of the license plate numbers, and received registration information for each vehicle. Krieger Decl. ¶ 4. The results for one of the vehicles, an older blue Toyota Corolla ("Corolla") with Washington plates, showed that it had been reported as "possible stolen" out of Washington in both the Washington Department of Licensing and the National Crime Information Center ("NCIC") databases. Hearing Ex. 2 at 3; Krieger Decl. ¶ 5. The NCIC results listed the Everett Police Department ("EPD") in Washington as the reporting agency, and Dispatcher Krieger called the phone number listed for the EPD in the search result and spoke to a woman at the department who confirmed that the Corolla had been reported stolen. Krieger Decl. ¶ 6-7; October 26, 2020 Hr'g Tr. at 29:22-30:3 ("She asked me for the license plate on the car. I gave it to her. ... And then she came back and told me that it was still outstanding.").
At approximately 10:41 a.m., PPD Officers Barry Duggan and Andre Roberts were dispatched and notified that the Corolla with Washington plates had been reported stolen out of Washington. Roberts Decl. ¶ 8. At around 10:43 a.m., Dispatcher Krieger noted in the dispatch call report that EPD had confirmed the stolen vehicle report. Krieger Decl. ¶ 7; Hearing Ex. 2 at 1, 4; October 26, 2020 Hr'g Tr. at 36:24-37:3 ("Q: Stolen confirmed by Everett PD at 10:43:08, is that the same confirmation there that you've confirmed that it's your -- your entry right there at the exact same time? A: Yes."). The uniformed officers arrived at the scene approximately eight minutes later at 10:51 a.m., and observed a man, later identified as Defendant, in the front driver's seat of the Corolla. Roberts Decl. ¶ 9; Hearing Ex. 2 at 4; Duggan Decl. ¶ 7. The officers parked their patrol car about forty to fifty feet behind the Corolla and radioed the license plate number to dispatch, which confirmed that it had been reported stolen. Roberts Decl. ¶ 9; Duggan Decl. ¶ 8; October 26, 2020 Hr'g Tr. at 66:7-12 ("Q. So after you passed the Corolla, what did you do? A. I made a U-turn, parked approximately 40 feet behind and it and confirmed the license plate with the dispatcher. Q. And was that you who confirmed it with dispatch or -- or -- A. Yes.").
Officer Duggan's declaration indicates that he received the call at approximately 10:35 a.m. Declaration of Barry Duggan (Dkt. No. 50-2, "Duggan Decl.") ¶ 5. Officer Duggan testified at the evidentiary hearing that, after reviewing his body camera footage, the correct dispatch time was 10:41 a.m. October 28, 2020 Hr'g Tr. at 172:14-16 ("Q. And you said it was because you reviewed your body-worn camera? A. Yes."). Officer Duggan's declaration also states that he arrived at the scene at approximately 10:40 a.m. Duggan Decl. ¶ 6. Officer Duggan testified at the evidentiary hearing that he arrived at the scene at 10:52 a.m. October 28, 2020 Hr'g Tr. at 151:15-17 ("Q. Why do you think it was closer to 10:52? A. Once I had a chance to review my body camera, I saw that the time was closer to 10:52."). The Court finds Officer Duggan's testimony at the hearing credible, given that he testified that he made these minor revisions regarding the timing after reviewing the body camera footage, as to which no dispute as to accuracy has been raised. Officer Duggan's testimony is also consistent with the contemporaneous call for service records. See Hearing Ex. 2 at 3 (Bates Number ALL-000147) (reflecting that "Unit 8X1" was Officers Duggan and Roberts), 4 (Bates Number ALL-000148) (showing that Unit 8X1 was "On Scene" at 10:51:21, after having been dispatched at 10:41:54).
Officer Roberts approached the Corolla from the driver's side, and Officer Duggan approached the car from the passenger side. Roberts Decl. ¶ 11. As the officers approached the Corolla, they had their firearms drawn "at the low ready position." October 26, 2020 Hr'g Tr. at 92:16-23. Defendant was the only person in the car. Id. at 65:21-25. Officer Roberts ordered Defendant to place his hands on the steering wheel and not to reach for a knife that Officer Roberts observed on his left side, and Defendant complied. Declaration of Hanni M. Fakhoury (Dkt. No. 20-1, "Fakhoury Decl.") Ex. B at 00:50. When Defendant asked why he was stopped, Officer Roberts replied that the vehicle is "coming back stolen." Id. at 1:30. Defendant responded that he had a bill of sale. Id. at 1:35. Officer Roberts asked Defendant for his name and where he lived, and Defendant provided this information. Id. at 2:10. Officer Roberts then asked whether Defendant had anything illegal in the car, and Defendant eventually responded "Nope." Id. at 2:40. Officer Fernandez arrived and the officers removed Defendant from the vehicle and handcuffed him. Id. at 4:00.
The officers placed Allen in the back seat of the police car, and confirmed that the VIN number on the Corolla matched the VIN of the vehicle that had been reported stolen with dispatch. Roberts Decl. ¶¶ 19-20; Duggan Decl. ¶ 11; October 26, 2020 Hr'g Tr. at 119:25-120:4; October 28, 2020 Hr'g Tr. at 155:7-156:3 Once the VIN match was confirmed, the officers placed Defendant under arrest. October 26, 2020 Hr'g Tr. at 74:19-75:1. The officers then decided that the vehicle would need to be towed to an impound lot because the vehicle was reported stolen out of Washington, and the owner would not be able to pick it from the scene within a reasonable time. Roberts Decl. ¶ 20; Duggan Decl. ¶¶ 15-16; October 26, 2020 Hr'g Tr. at 74:3-8 ("Because we knew that this vehicle was reported stolen out of Washington. That's not local. So registered owner likely wouldn't have been able to come and pick up the vehicle in a reasonable time.").
After confirming the VIN of the vehicle, the officers started a CHP 180 form. October 26, 2020 Hr'g Tr. at 73:21-24 ("Q. And what did you do next after confirming the VIN? A. Next from my memory, I had my cover officer, Officer Fernandez, start a CHP 180 form and also conducted a search on the vehicle."); Fakhoury Decl. Ex. B at 12:20. PPD policy provides that "Department members requesting towing, storage or impound of a vehicle shall complete CHP Form 180 and accurately record the mileage and a description of property within the vehicle ( Vehicle Code § 22850 )." Hearing Ex. 3 (Pinole Police Department Policy Manual) at § 502.2.1 (section titled "Vehicle Storage Report"). The CHP 180 form must be completed at the scene. Id. at § 502.3.3(b) (section titled "Towing Procedure"). Under PPD policy, "[a]ll property in a stored or impounded vehicle shall be inventoried and listed on the vehicle storage form," and "[m]embers conducting inventory searches should be as thorough and accurate as practical in preparing an itemized inventory." Id. at § 502.4 (section titled "Vehicle Inventory").
While Officer Fernandez began to fill out the CHP 180 form, Officer Roberts began to search the Corolla. October 26, 2020 Hr'g Tr. at 76:23-77:1. While searching the car, Officer Roberts found a black AR-15 style rifle underneath a jacket in the front passenger seat. Roberts Decl. ¶ 21; Fakhoury Decl. Ex. C; October 26, 2020 Hr'g Tr. at 110:23-111:2. The rifle was loaded with a 30-round high capacity magazine containing 5.56 mm ammunition, and taped to the magazine was another loaded 30-round high capacity magazine. Roberts Decl. ¶ 21. Officer Roberts continued to search the vehicle and found a third 30-round high capacity magazine in the trunk of the Corolla. Id. ; October 26, 2020 Hr'g Tr. at 111:11-20. Officer Fernandez provided the serial number of the rifle to dispatch and dispatch informed the officers that the rifle was reported stolen out of Washington. Roberts Decl. ¶ 21. Officer Roberts then told Defendant he was under arrest and that he had the right to remain silent and to an attorney. Fakhoury Decl. Ex. D at 3:50. Officer Roberts asked Defendant about the "stolen vehicle," and Defendant responded that he wanted an attorney. Id. at 4:00. The officers did not ask any further questions.
The officers transported Defendant to Martinez Detention Facility in the back of their patrol vehicle. Roberts Decl. ¶ 25. During the drive, Defendant was talking or mumbling to himself, and as the officers were arriving at the facility, Defendant said words to the effect that the officers should have conducted a traffic stop on him because it would have made his day "more eventful." October 26, 2020 Hr'g Tr. at 86:16-18. Officer Roberts asked Defendant what he meant by this, and Defendant stated that if the officers had pulled him over, he would have "shot it out" with them. Id. at 87:9-10. After the officers and Defendant arrived at Martinez Detention Facility, Officer Duggan was waiting with Allen. October 28, 2020 Hr'g Tr. at 179:11-13. Officer Duggan "wanted to ask him what brought him to Pinole," id. at 167:10, and Defendant "said he had to pull over because he was tired on his drive." Id. at 167:19. Officer Duggan then asked Defendant "where he was driving to, and [Defendant] said he was driving from Washington to San Francisco." Id. at 167:22-23. Defendant also stated that "he was on his way to San Francisco to handle a thief stockbroker." Id. at 167:25-168:1. Officer Duggan continued to ask Defendant questions, and "asked [Defendant] who the stockbroker was and where they were," to which Defendant did not respond. Id. at 168:5-7.
Defendant is charged in this case with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Dkt. No. 7.
II. LEGAL STANDARD
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. The exclusionary rule protects this right by permitting a criminal defendant to move to suppress evidence that was obtained in violation of his Fourth Amendment rights. United States v. Calandra , 414 U.S. 338, 347–48, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). It acts as a deterrent, "to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it." Id. at 347, 94 S.Ct. 613 (quotation omitted).
The exclusionary rule "reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ " United States v. Pulliam , 405 F.3d 782, 785 (9th Cir. 2005) (quoting Segura v. United States , 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ). The government bears the burden of proving that a warrantless search or seizure falls within an exception to the warrant requirement. United States v. Scott , 705 F.3d 410, 416–17 (9th Cir. 2012).
III. DISCUSSION
The dispute here centers on whether (1) the officers had probable cause to arrest Defendant, and (2) the ensuing warrantless search of the Corolla was lawful.
A. The Officers had Probable Cause to Arrest Defendant Before They Conducted the Search
The government does not dispute that Defendant was seized within the meaning of the Fourth Amendment when he was removed from the Corolla, handcuffed and placed in the back of the patrol car. Opp. at 6-7. But the government contends that the officers had probable cause to arrest Defendant before the search of the Corolla because they relied on dispatch's advisement and confirmation that the vehicle was stolen. The Court agrees.
The record here establishes that the officers had probable cause to arrest Defendant when they arrived at the scene after dispatch had confirmed that the vehicle was presently reported stolen. The officers reasonably relied on the information in the stolen vehicle report, and the Corolla's inclusion in this report was sufficient to establish probable cause to arrest Defendant (the driver and sole occupant of the car) because it provided officers with reasonably trustworthy information sufficient to warrant a prudent person to believe that a crime was committed. United States v. Henderson , 241 F.3d 638, 648 (9th Cir. 2000).
In Rohde v. City of Roseburg , 137 F.3d 1142, 1144 (9th Cir. 1998), the Ninth Circuit held that "a stolen vehicle report alone furnishes sufficient basis to arrest the driver" of the vehicle. Id. (citing Lipton v. United States , 348 F.2d 591, 594 (9th Cir. 1965) ) (emphasis added). So long as the officer "has reliable information, such as a police report, indicating that the vehicle has been stolen, he thus has probable cause to believe that the driver has committed the crime of either stealing the car or knowingly operating a stolen vehicle." Id. This is true "even if the report is later discovered to be erroneous." Id. ; see also United States v. Wasef , No. 18-cr-01483-GPC, 2018 WL 3472562, at *6 (S.D. Cal. July 19, 2018) (noting that an arrest is lawful after officers receive a stolen vehicle report, and citing Rohde for the proposition that "an officer has probable cause to arrest the driver of a vehicle that has been reported stolen unless the driver offers ‘proof of ownership that would rebut the evidence that the vehicle had been stolen.’ "); Herwick v. Budget Rent A Car Sys. Inc. , No. 10-CV-409 SJO, 2011 WL 13213607, at *6 (C.D. Cal. Mar. 8, 2011) ("[F]ollowing the Ninth Circuit's holding in Rodhe , [...] the LAPD Officers had probable cause to arrest Plaintiffs even if the stolen vehicle report should not have been in the system.").
The Ninth Circuit, citing Rohde , recently noted that the government may rely on a database to make a probable cause determination so long as it provides officers with reasonably "trustworthy information." Gonzalez v. United States Immigration & Customs Enf't , 975 F.3d 788, 820 (9th Cir. 2020) (citing Rohde , 137 F.3d at 1144 ). While Defendant claimed that an evidentiary hearing was necessary as to "the reliability of the database that prompted police to seize Mr. Allen," Reply at 6-7, the Court found no basis for requiring such a hearing. Dkt. No. 83 (finding that "issues regarding the general maintenance or overall reliability of the database" would not be within the scope of the evidentiary hearing, because "the defense has failed to raise any issue warranting an evidentiary hearing" as to those issues). No case cited by Defendant suggests that this sort of institution-level inquiry is required in every case involving a stolen car report to adequately establish the trustworthiness of information retrieved from law enforcement databases, especially in light of the Rohde court's agreement that probable cause still exists even if the information in the database is later shown (unlike here) to be erroneous. Gonzalez , a putative civil class action seeking to enjoin ICE from using electronic database searches as the sole basis for making probable cause determinations of removability for the purpose of issuing immigration detainers, 975 F.3d at 819–20, simply does not bear on what needs to be shown under Rohde in routine cases like this one. The Court finds that the record here amply establishes that the information accessed by Dispatcher Krieger and relayed to the officers in the field was sufficiently reliable to establish probable cause to arrest Defendant.
Defendant contends that Dispatcher Krieger did not confirm the stolen vehicle report by checking the National Crime Information Center ("NCIC") database. Reply at 6. However, the evidence adduced at the evidentiary hearing refuted this claim. Dispatcher Krieger's testimony and the documentary evidence show that the stolen vehicle report contained two database results—one from the WSDL and one from the NCIC. See October 26, 2020 Hr'g Tr. at 42:10-16; Hearing Ex. 2 at 1. After receiving these results from both the WSDL and NCIC databases, Dispatcher Krieger called EPD in Washington to confirm the stolen vehicle reports, and EPD confirmed that the vehicle was reported stolen. October 26, 2020 Hr'g Tr. at 28:17-30:9; Krieger Decl. ¶ 7. Dispatcher Krieger updated the PPD Call Service Detail Report at 10:43:08 to reflect that EPD had confirmed the stolen vehicle report. Id. at 36:23-37:3; Hearing Ex. 2 at 1 (call service report updated at 10:43:08 to reflect "STOLEN CONFIRMED BY EVERETT PD").
Officers arrived on scene at approximately 10:51 a.m. Hearing Ex. 2 at 4. By that time, the officers had access to the information that the Corolla was confirmed stolen by EPD. October 26, 2020 Hr'g Tr. at 38:18-24 ("Q. Now, this particular notation that you entered, ‘stolen confirmed by Everett PD,’ would that information have also been displayed in some sort of visual format whether it's, you know, on a patrol car, wherever, would that have been conveyed to officers? A. That it was available to the officers. Whether or not they were looking at the screen, I don't know."). Because the officers’ decision to arrest Defendant was premised on a dispatch confirmation that the Corolla was stolen, the Court finds that there were sufficient facts for the officers to conclude that there was a fair probability that Defendant, the Corolla's lone occupant, was involved in the commission of a crime, thereby establishing probable cause to arrest him. See United States v. Noster , 590 F.3d 624, 629-30 (9th Cir. 2009) ("Probable cause does not require proof beyond a reasonable doubt of every element of a crime. Rather, probable cause exists where under the totality of the circumstances known to the officer, a prudent person would have concluded that there was a fair probability that the suspect had committed or was committing a crime.") (citations omitted).
Defendant counters that the officers’ reliance on a database stolen vehicle report was insufficient to supply probable cause, largely relying on the Tenth Circuit's decision in United States v. Esquivel-Rios , 725 F.3d 1231 (10th Cir. 2013). But Esquivel-Rios is neither binding nor persuasive given the facts of this case. In Esquivel-Rios , the officer "relied only on the database report," without any attempt to confirm the database report, despite knowing at the time that the database was unreliable because it did not contain complete information. Id. at 1236 (emphasis in original). That is nothing like the situation here, where Dispatcher Krieger relied on two different databases—both of which she had no reason to question—and then immediately called EPD to confirm these results.
Similarly, in United States v. Noster , the Ninth Circuit addressed whether it was reasonable under the Fourth Amendment for officers to seize and conduct an inventory search on a vehicle that had been reported stolen, even if the inclusion of that vehicle in a statewide database was a mistake. 590 F.3d 624 (9th Cir. 2009). The Ninth Circuit found that the officers "reasonably relied on the [stolen vehicle] report to conduct a warrantless search of the truck prior to impounding it," during which they found a backpack in the front seat containing an incendiary device. Id. at 631. Citing the Supreme Court's decision in United States v. Hensley , 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Ninth Circuit held that the officers had probable cause to seize the vehicle based on their reasonable reliance on the stolen vehicle report.
Accordingly, considering the totality of the circumstances, the officers had probable cause to arrest Defendant before the inventory search of the Corolla. See, e.g., Rohde , 137 F.3d at 1144 ("We look to the totality of the circumstances known to the officer at the time to determine whether probable cause existed."); United States v. Butler , 74 F.3d 916, 921 (9th Cir. 1996) ("Probable cause can also be demonstrated through the collective knowledge of police officers involved in an investigation, even if some of the information known to other officers is not communicated to the arresting officer.") (citing United States v. Bernard , 607 F.2d 1257, 1267 (9th Cir. 1979) ). This is true whether the officers initially detained Defendant (as they claim) or arrested him (as he claims) while obtaining further information, because at the time the officers handcuffed Defendant and placed him into the police car, they had probable cause to arrest him, satisfying the Fourth Amendment. See, e.g., United States v. Reyes-Bosque , 463 F. Supp. 2d 1138, 1146 (S.D. Cal. 2006), aff'd , 596 F.3d 1017 (9th Cir. 2010) (acknowledging that, where agents could have made an immediate arrest of a suspect, their decision to further investigate information that could have "exculpated him on the spot" was reasonable and should be encouraged).
The fact that the officers contend that they did not immediately arrest Defendant until after they confirmed the Corolla's VIN number does not impact the probable cause analysis. See Hoffa v. United States , 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ("There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long.").
B. The Search of the Corolla was Lawful
Defendant next contends that the officers’ inventory search of the Corolla was pretextual, was the fruit of an unconstitutional seizure, and was not subject to any exception under the Fourth Amendment. Mot. at 7. In particular, Defendant contends that the officers’ motive in searching the Corolla was not to inventory its contents but to search for evidence of a crime, and that the officers’ failure to comply with the relevant PPD policy during the purported inventory search reflects this pretext. While the Court finds that the execution and documentation of this inventory search left much to be desired, it further finds that controlling Ninth Circuit authority establishes that the search satisfied the Fourth Amendment, and that suppression is thus unwarranted.
i. Legal Standard
Under the "community caretaking" exception to the Fourth Amendment, "police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic." United States v. Torres , 828 F.3d 1113, 1118 (9th Cir. 2016). Under this exception, once a vehicle has been legally impounded, officers may conduct an inventory search, as long as it conforms to the standard procedures of the local police department. South Dakota v. Opperman , 428 U.S. 364, 375-76, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) ; see also United States v. Wanless , 882 F.2d 1459, 1463 (9th Cir. 1989) ("it is undisputed that once a vehicle has been impounded, the police may conduct an inventory search.") (citations omitted).
The Ninth Circuit has held that such a search must be non-investigative, and that an "inventory search is invalid if it was a pretext for an investigative search." United States v. Bowhay , 992 F.2d 229, 231 (9th Cir. 1993) ; see also United States v. Orozco , 858 F.3d 1204, 1213 (9th Cir. 2017) ("Thus, in order to prove that a stop is unreasonably pretextual, a defendant must show that the stop would not have occurred in the absence of an impermissible reason."). The Ninth Circuit explained that "a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value." United States v. Johnson , 889 F.3d 1120, 1128 (9th Cir. 2018). Instead, "the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee's property (and likewise to protect the police department against fraudulent claims of lost or stolen property)." Id. Therefore, where "the only reason" that officers perform an inventory search is to find evidence of a crime, the search is pretextual and violates the Fourth Amendment. Orozco , 858 F.3d at 1213.
The Ninth Circuit has recently reaffirmed, however, that "[i]mportantly, the mere presence of a criminal investigatory motive or a dual motive–one valid and one impermissible–does not render an administrative stop or search invalid; instead, the Court asks whether the challenged search or seizure would have occurred in the absence of an impermissible reason." United States v. Magdirila , 962 F.3d 1152, 1157 (9th Cir. 2020) (quoting Johnson , 889 F.3d at 1126 ) (internal quotations and alterations omitted). The Ninth Circuit has noted that the "underlying principle" guiding this analysis is whether there is evidence "to suggest the police raised the inventory search banner in an after-the-fact attempt to justify a simple investigatory search for incriminating evidence." United States v. Garay , 938 F.3d 1108, 1112 (9th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 976, 206 L.Ed.2d 131 (2020).
ii. Analysis
Stripped to its essence, the issue here under Magdirila is whether the challenged search of the Corolla would have occurred in the absence of what Defendant contends were pretextual reasons for the search. The record establishes clearly that the answer is "yes."
• Defendant was lawfully arrested for, at a minimum, possession of stolen property (the Corolla), based on reliable information from law enforcement databases. Hearing Ex. 2 at 3; Krieger Decl. ¶ 5-7; October 26, 2020 Hr'g Tr. at 29:22-30:3.
• Once Defendant was arrested, the Corolla needed to be impounded and towed, because it was reported stolen in Washington and had Washington plates, meaning that the owner was unlikely to be able to retrieve it personally in a timely manner. Roberts Decl. ¶ 20; Duggan Decl. ¶¶ 15-16; October 26, 2020 Hr'g Tr. at 74:3-8.
• Before beginning the search, the officers started to complete the CHP 180 form, which pertains to "vehicle storage" and which must under PPD policy be filled out on the scene when a vehicle is impounded. October 26, 2020 Hr'g Tr. at 73:21-2; Hearing Ex. 3 (Pinole Police Department Policy Manual) at § 502.2.1 (section titled "Vehicle Storage Report"); id. at § 502.3.3(b) (section titled "Towing Procedure").
• Under PPD policy, "[a]ll property in a stored or impounded vehicle shall be inventoried and listed on the vehicle storage form [i.e., the CHP 180 form]." Id. at § 502.4 (section titled "Vehicle Inventory").
Under these circumstances, there clearly was a legitimate basis for performing an inventory search. See Garay , 938 F.3d at 1111 (finding that "the decision to tow the car was a reasonable and good-faith exercise of the officers’ care-taking function; [driver] had just been arrested and the car was totaled and lying in a ditch"); Magdirila , 962 F.3d at 1158 (noting that "Department Policy required the officers to impound the vehicle upon determining that [driver] was unlicensed, [officer] established that fact during his initial questioning of [driver] and decided to impound the vehicle before discovering methamphetamine in the glove compartment," and concluding that "[g]iven the early stage at which [officer] decided to impound the vehicle, it is a reasonable view of the evidence that [officer's] intent at the time the vehicle was impounded was administrative rather than investigatory") (emphasis in original and internal quotation marks and citation omitted).
In arguing to the contrary, Defendant makes two central arguments: (1) the officers’ only real motive for searching the Corolla was to find evidence of crime; and (2) the fact that the officers failed to adequately itemize the contents of the car and include them on the CHP 180 form proves this. See Reply at 2-3 ("Given the officers’ contemporaneous recorded statements that they were going to ‘search’—not ‘inventory’—the car based on their ‘gut feeling,’ Officer Duggan and Roberts’ declarations claiming they searched the car pursuant to the inventory policy are merely ‘post-hoc rationalizations’ that this Court should not credit."). The Court disagrees that the record here requires suppression.
First, the Court finds the facts here distinguishable from those in Johnson , one of the cases on which Defendant most heavily relies. In Johnson , officers looking for the defendant in connection with an arrest warrant stopped his car and placed him under arrest. 889 F.3d at 1123. The officers searched the defendant, then purported to conduct an inventory search of the car before it was towed and impounded. Id. Inside the car, the officers found drug paraphernalia, a cell phone and two bags, which were seized and stored in an evidence locker. Id. Police obtained a search warrant and found drugs and other items indicative of drug trafficking. Id. at 1124. The Ninth Circuit concluded that the search of the car was unreasonable under the Fourth Amendment because it was not an inventory search and because the officers "explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity." Id. at 1127 (emphasis in original). The arrest report also stated that the officers believed the bags "contained evidence," that the cell phones "may have been ‘used to facilitate criminal activity and evidence [may] be found stored on the phone,’ " and "all of the seized items ‘were placed into evidence.’ " Id. The "officers’ statements directly admitting that they searched and seized items from Johnson's car specifically to gather evidence of a suspected crime (and not to further such permissible caretaking motives) [were] sufficient to conclude that the warrantless search of the car was unreasonable." Id. at 1128 (internal quotations omitted).
On the one hand, there is absolutely no question based on the record that Officers Roberts and Duggan expected (and even hoped) to find evidence of crime if they searched the Corolla. October 26, 2020 Hr'g Tr. at 77:22-25 (testimony of Officer Roberts: "Q: Now, before you started conducting the inventory search of [the] Corolla, did you expect to find evidence of criminal activity within the vehicle? A: I did."). On Officer Roberts’ body camera recording, Officer Fernandez can be heard telling Officer Roberts before the search to "search his car real good—just have that gut feeling," and Officer Roberts responded, "Yeah, I did too, because I asked him." Fakhoury Decl. Ex. B at 11:18; October 26, 2020 Hr'g Tr. at 77:5-12. Officer Roberts then told Officer Fernandez, "I am going to search it real quick." Fakhoury Decl. Ex. B at 11:51. After Officer Roberts found the firearm, Officer Duggan said, "I knew there was a [ ] gun in the car, what did I tell you?" Fakhoury Decl. Ex. C at 1:10. And as Officer Roberts continued searching, Officer Duggan said "Alright, let's find the handgun that goes with it." Id. at 4:19.
At the evidentiary hearing, Officer Roberts testified that Officer Fernandez actually said "gun feeling," which equally proves the present point. October 26, 2020 Hr'g Tr. at 110:11-15.
But critically, on the other hand, it also is clear that the officers were objectively justified in performing an inventory search (even though in the end they admittedly performed it less than optimally). See Garay , 938 F.3d at 1111 ("The contents of the wrecked car had to be removed and safeguarded before the car was towed from the site. That is the essence of an inventory search."). So Defendant's position ignores a crucial component of the analysis mandated by the Ninth Circuit's decisions in Magdirila, Johnson , Orozco , and Garay : whether the only reason that the officers conducted an inventory search of the Corolla was because they wanted to search the vehicle for evidence of a crime when they otherwise could not. For example, in Garay , the Ninth Circuit held that the seizure of incriminating evidence collected from a rental car during an inventory search was permissible where the defendant "had just been arrested" and the site was effectively "a crime scene." 938 F.3d at 1111. The Garay court found that "[g]iven the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle," but held that this "expectation would not invalidate an otherwise reasonable inventory search." Id. at 1112. This was true even though the searching officer did not fully comply with his department's inventory search policies. Id. at 1110-11. Here, as there, the fact that the officers (correctly, as it turned out) thought they would find evidence of crime during the execution of an inventory search does not invalidate the search.
Defendant next contends that an inventory search was neither intended nor accomplished, and that the search was thus pretextual, because the relevant PPD policy was not followed in some respects. Again, the record establishes conclusively that the inventory search and completion of the CHP 180 form were adequately documented in some significant respects. See Hearing Ex. 4 (CHP 180 form). Officer Fernandez filled out the top half of the first page of the form, including checking boxes to indicate whether certain property (such as "radio" and "tape deck") was present in the car, and providing information about the condition of the car and its components. Id. ; October 26, 2020 Hr'g Tr. at 76:17-77:1 ("Q. Now, I believe you said that Officer Fernandez filled in parts of this form? A. Correct."). The form was properly signed by the tow truck driver (though it was not dated). Hearing Ex. 4; October 28, 2020 Hr'g Tr. at 163:14-24. And Officer Roberts filled in parts of the remainder of the form, including listing "clothes, cellphone, tablet" as "contents" and noting the seizure of the rifle. Hearing Ex. 4; October 28, 2020 Hr'g Tr. at 161:25-162:10.
It is equally clear, on the face of the record and by the officers’ own admissions, that the search and completion of the CHP 180 form were not adequately documented in other respects, as required by PPD policy. It is undisputed that the sparse inventory list was incomplete: the Corolla actually contained, among other things, four cell phones, one tablet, two knives, marijuana and miscellaneous papers. Fakhoury Decl. Ex. H (August 5, 2020 FBI 302). Officers Roberts and Duggan also admitted that the manner in which the inventory list was completed did not comport with PPD policy, October 26, 2020 Hr'g Tr. at 79:11-15, and that the "inventory wasn't conducted in the manner that it should have been." Id. at 79:8-10; October 28, 2020 Hr'g Tr. at 162:11-24. And the bodycam footage shows officers searching through items in the car and in the trunk without making any apparent effort to inventory all of the car's contents. See Fakhoury Decl. Ex. C at 1:48-11:25. Defendant thus contends that the officers’ failure to meaningfully document the contents of the car "undermines any aim in protecting the [Pinole] PD against fraudulent claims of lost, stolen, or damaged property," making the search unlawful. Reply at 3 (alteration in original) (quoting United States v. Roberts , 430 F. Supp. 3d 693, 705 (D. Nev. 2019) ).
The Court thus must decide whether this apparent, and admitted, failure to prepare a more complete and detailed list of the Corolla's contents means that the search crossed the line into an impermissible "general rummaging for evidence." While it is hardly an open-and-shut case, the Court finds that it did not. The Ninth Circuit recently confronted precisely this issue in both Garay and Magdirila. In both decisions, the Ninth Circuit held that, with regard to inventory searches, "minor noncompliance with department policies does not invalidate an otherwise lawful inventory search." Magdirila , 962 F.3d at 1157 (citing Garay , 938 F.3d at 1112 ). The Garay court found a search permissible where, as here, "the officers listed only some property in the Vehicle Report, though they booked additional property as evidence." 938 F.3d at 1111. Here, the officers also cross-referenced additional seized property (the gun and ammunition) in the police report. See Hearing Ex. 1 at 1, 5-6. The Magdirila court upheld a similar search in which some of the seized items were listed on the CHP 180 form, and the rest were listed in a cross-referenced police report. 962 F.3d at 1158. While this case is factually closer to Garay than to Magdirila , the Court finds that the record reflects that the officers "complied with the department's inventory-search policy in material respects," Garay , at 1112, but not in all respects. On balance, the Court finds that the correct result here is the same as in Garay : the administrative error of not fully completing the inventory form did not invalidate the inventory search, and the motion to suppress the seized physical evidence is accordingly denied. Because the underlying arrest and search were lawful, the Court also denies Defendant's motion to suppress his statements as fruits of the poisonous tree, Mot. at 7.
Over the course of the briefing and hearings on this motion, the government has seriatim raised a number of other belated arguments to justify the search of the Corolla. For example, the government pointed out for the first time in its sur-reply that less than two minutes before the conversation about searching the vehicle occurred, Officer Fernandez told Officers Roberts and Duggan that there were "drugs on the seat, meth pipe on the seat, two knives." Compare Opp. at 7 (framing argument as being that "the inventory search of the Corolla was lawful") with Dkt. No. 78 at 6-7; see also Fakhoury Decl. Ex. B, at 9:34-9:40. The government then claimed that these items in plain view provided a fair probability that evidence of additional crimes would be found in the vehicle. Dkt. No. 78 at 7 (citing United States v. Ewing , 638 F.3d 1226, 1231 (9th Cir. 2011) ("police may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime")). The government even attempted to argue for the first time after the evidentiary hearing that Defendant lacked standing to challenge the search, a tactic the Court summarily rejected. October 28, 2020 Hr'g Tr. at 195:6-20. The Court need not address any of the government's other contentions because the lawfulness of the inventory search is sufficient basis to deny the Motion. That said, the Court finds it unseemly at best that the government seemed to have such trouble timely raising its arguments, which required the Court on multiple occasions to grant Defendant a fair opportunity to respond outside of the normal briefing schedule. The United States should know its theory very well at the time it charges a case, and should have no need to try to shape-shift its arguments in the way it has done here.
C. Defendant's Post-Arrest Statements
As an independent basis for suppressing his post-arrest statements, Defendant last contends that the officers were required to cease interrogation after Defendant invoked his right to an attorney. Mot. at 8. Whether questioning constitutes an interrogation is an objective test that focuses on the perception of the defendant, and the officer's subjective intent in asking the questions is relevant, but not determinative. See United States v. LaPierre , 998 F.2d 1460, 1466 n.6 (9th Cir. 1993) ; Rhode Island v. Innis , 446 U.S. 291, 301-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ; United States v. Booth , 669 F.2d 1231, 1238 (9th Cir. 1982) (finding test to be an objective one under which the subjective intent of police is relevant, but not conclusive). There can be no dispute that Defendant was in custody at the time he made the statements he seeks to suppress; the question is whether the statements were the product of custodial interrogation.
First , with regard to Defendant's statements in the backseat of the patrol car that he would have "shot it out" with officers, this conversation was clearly initiated by Defendant, and thus was not the product of interrogation. Officer Roberts testified that Defendant "was talking to himself, mumbling and rambling and saying that we had no right to search the vehicle, no right to stop him." October 26, 2020 Hr'g Tr. at 86:4-8. The officers only engaged after Defendant stated that the officers could have at least conducted a traffic stop on him and said it would have made the day "more eventful." Id. at 86:16-18. Officer Roberts responded with "What does that mean?," to which Defendant replied with the "I would have shot it out with you" statement. Id. at 87:5-12. Because Defendant initiated this interaction, his statement was not the product of impermissible interrogation. Mickey v. Ayers , 606 F.3d 1223, 1235 (9th Cir. 2010) ("A suspect who invokes the right to counsel may not be interrogated unless he initiates the conversation.") (citing Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ). Defendant's statements thus were not obtained in violation of his Miranda rights. Miranda v. Arizona , 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence."). The Ninth Circuit has explicitly held that "small talk was not interrogational." Mickey , 606 F.3d at 1234–35.
Second , the Court finds that Allen's post-arrest statement that he was traveling from Washington to San Francisco because he had to handle a thief stockbroker, which occurred at the Martinez Detention Facility, was the product of interrogation rather than small talk or casual conversation. While Defendant was waiting with Officer Duggan, Officer Duggan initiated a conversation with Defendant and asked him how he wound up in Pinole, California. Duggan Decl. ¶ 20; Roberts Decl. ¶ 27; October 28, 2020 Hr'g Tr. at 180:8-14. Given that Defendant had been arrested in a car reported stolen in Washington, and had been confirmed to be a convicted felon in possession of an assault rifle, the Court finds that this question was reasonably likely to elicit an incriminating response. Moreover, Officer Duggan asked number of other follow-up questions which could reasonably be interpreted to elicit an incriminating response related to the charged crimes. October 28, 2020 Hr'g Tr. at 167:22-168-7 (Officer Duggan asked Defendant "where he was driving to," and "asked [Defendant] who the stock broker was and where they were"). Under these circumstances, this questioning by Officer Duggan rose to the level of interrogation, as it was reasonably likely to elicit an incriminating response. Accordingly, the Court grants the motion to suppress these statements.
IV. CONCLUSION
Because the officers had probable cause to arrest Defendant based on the stolen car report in the police database, and because there was a permissible basis to conduct an inventory search of the Corolla, the physical evidence obtained during that search was lawfully obtained. The Court also finds that there was no custodial interrogation of Defendant as to the "shoot it out" statement, but that there was such interrogation as to the "stockbroker" statements. Accordingly, the Court DENIES in part and GRANTS in part the motion to suppress as detailed in this Order.