The search of defendant’s car couldn’t be justified as a search incident or an inventory, and the testimony is woefully inadequate to support either. Essentially, the officer testified, and acted at the scene like, he could search the car with impunity. Suppression is the appropriate remedy because “His motivation to search the car was to get a look inside to see what Edwards possessed. Hindsight shows that his instincts were good and I have no doubt that he thought he was operating within the bounds of the Fourth Amendment, but that does not make this an acceptable search.” United States v. Edwards, 2013 U.S. Dist. LEXIS 189132 (W.D. Wis. September 10, 2013):
The government devotes the first 13 pages of its brief to its spirited challenge of Edwards’s “standing” to challenge the search; it devotes two paragraphs in support of the actual search. This is the government’s argument, virtually in its entirety:
Having just arrested Edwards for vehicle theft, Pufall had reasonable cause to believe that evidence relating to the crime of arrest might be found in the vehicle’s passenger compartment … Once Pufall learned that the evidence of vehicle ownership was not in the customary location of the glove compartment, he expanded his search to the rest of the passenger compartment, as experience taught him that people sometimes have such documents loose or in other areas of the vehicle.
Dkt. 20 at 14-15.
This is a filtered and rather self-serving gloss of Sgt. Pufall’s muddled testimony on this point. First, it is not clear that Sgt. Pufall actually arrested Edwards for car theft, as opposed to driving a vehicle without license plates, which is a res ipsa traffic violation. Only repeated prodding by the assistant U.S. Attorney adduced the testimony referred to in the government’s brief. More revealing-and more persuasive-is Sgt. Pufall’s testimony that he could search the Mitsubishi with impunity:
AUSA Burke: And at what point did you — let me ask this a different way: what made you think you had a right to search this vehicle?
Sgt. Pufall: I felt I had the right because Veronica reported that it’s her car and he took it without permission. So if it wasn’t his car and he didn’t have permission, that’s why I searched it. In my mind, he had no expectation of privacy.
Sgt. Pufall offered other reasons which I will explore below, but this is the crux of what happened that night. Having heard and seen both officers testify, and having watched and heard the video recording of the traffic stop, and having considered how the officers handled the car and its contents, I conclude that Sgt. Pufall primarily was motivated to search the Mitsubishi in order to do a spot check on Justin Edwards, a well-known habitual criminal. Fernandez’s late-night 911 call made him to think that he had a free shot on an empty net.
Such a search might be viewed by some as efficient, pro-active community policing, especially in a small municipality where everyone knows each other; indeed for the first twenty years of Sgt. Pufall’s career, it was legal for him to toss an arrestee’s car to look for weed, weapons and stolen goods. It would be a hard habit to break, especially when it is so palpably productive, but in 2009 the Supreme Court in Gant changed (Justice Stevens would say “clarified”) the rules and removed the automatic car search from law enforcement’s investigative tool box. It is-always has been-unconstitutional for patrol officers to exercise “unbridled discretion to rummage at will among a person’s private effects.” Gant, 556 U.S. at 345.
True, Sgt. Pufall now claims that he was searching the Mitsubishi for proof of ownership (this was his third reason; reason number 2 was a claimed inventory search, discussed in the next section). But, in this case on these facts, this claim is incredible and the court rejects it. Why would proof of vehicle ownership be relevant? Even if Sgt. Pufall found a car title or current registration in Fernandez’s name, this would be irrelevant to a determination whether Edwards had stolen the car. Sgt. Pufall knew that Edwards and Fernandez were a couple, so Edwards’s presence in Fernandez’s car proved nothing in the absence of her phone call claiming that Edwards had taken “her” car without permission.
. . .
The upshot of all this is that Sgt. Pufall’s testimony regarding his search for proof of ownership strikes the court as a post-hoc rationalization rather than an accurate characterization of his thought process at the time he searched the Mitsubishi. As noted above, Sgt. Pufall actually was of the opinion that Fernandez’s 911 call gave him carte blanche to rummage through the Mitsubishi to see what Edwards was up to. As already noted, this could be viewed by some as good policing, given what Sgt. Pufall discovered in the car. But the fact that the search was productive does not justify it. The search violated Edwards’s Fourth Amendment rights. At this juncture, the exclusionary rule would augur suppression of the evidence derived from the search. The government argues that suppression is inappropriate because the shotgun inevitably would have been discovered pursuant to the inventory search that Sgt. Pufall performed. I address this assertion in the next section:
III. The car search does not pass muster as an inventory search
The inevitable discovery doctrine permits the government to introduce evidence seized in violation of the Fourth Amendment if the government can prove, by a preponderance of the evidence, that the officers ultimately or inevitably would have discovered the challenged evidence by lawful means. To meet this burden, the government must demonstrate both: (1) that it had or would have obtained, an independent, legal justification for conducting a search that would have led to the discovery of the evidence and (2) that it would have conducted a lawful search absent the challenged conduct. United States v. Howard, 729 F.3d 655, 663 (7th Cir., 2013).
Inventory searches constitute a well recognized exception to the warrant requirement and are reasonable under the Fourth Amendment. Local police departments routinely inventory and secure the contents of impounded vehicles. Doing so protects the police from potential danger, protects the owner’s property while it remains in police custody, and protects police against claims of lost, stolen, or damaged property. …
. . .
In this case, the police brought the purported owner of the Mitsubishi (Fernandez) to the scene, directed her to sort through the car’s contents, then allowed her to drive it home, even though the police knew that the car was unregistered, it had no plates, and they suspected that Fernandez had been drinking (although Officer Greene did not believe that she was drunk). I say “purported” owner because the Mitsubishi was not currently registered to anyone, and the last known owner was Jeremy Sobel, a third party (although known to the officers). Apparently, the police deemed it a statutory violation for Edwards to drive an unregistered vehicle from Fernandez’s residence to the location of the traffic stop, but it was not a violation for her to drive that same vehicle back home. Cf. Cartwright, 630 F.3d at 616 (police had no choice but to impound the vehicle because “no one could have lawfully driven [the] car from the scene as it did not have the functional license plate lamp required by Indiana law.”)
If the police actually had towed the unregistered Mitsubishi to their impound lot-which they should have done, since it could not be legally driven by anyone-then they could have searched it and inventoried its contents. But they didn’t tow the Mitsubishi because this wasn’t really an inventory search. As discussed above, Sgt. Pufall searched the Mitsubishi because he wanted to see what Edwards had with him. After discovering and seizing the obvious contraband, he had Officer Greene bring Fernandez back to the scene to claim and take whatever she said was hers and leave the rest for Officer Greene to bring back to the station. Then the police let Fernandez drive the Mitsubishi home. (Also worth noting, as Edwards does, is that not only did the police not tow or impound the car, they left it unattended (but locked) on a city street while they attended to other aspects of their investigation. Who would have been responsible if someone had broken into the Mitsubishi and stolen its as-yet uncatalogued contents?)
