Defendant’s consent to search after his admitted Miranda violation was invalid. Moreover, the vehicle search was otherwise unlawful because the government can’t support it as an inventory search. United States v. Groce, 2016 U.S. Dist. LEXIS 93352 (M.D.Ala. July 1, 2016), adopted in part, rejected in part, 2016 U.S. Dist. LEXIS 92874 (M.D.Ala. July 18, 2016):
The court conducts “two separate inquiries where a consent to search follows prior illegal activity by the police. First, a court must determine whether the consent was voluntary. Second, the court must determine whether the consent, even if voluntary, requires exclusion of the evidence found during the search because it was the ‘fruit of the poisonous tree.'” United States v. Delancy, 502 F.3d 1297, 1308 (11th Cir. 2007) (citing United States v. Santa, 236 F.3d 662, 676-77 (11th Cir. 2000)). The parties skip over the first step, but the “two step approach is mandatory, and the government bears the burden on both issues.” Delancy, 502 F.3d at 1308 (citing United States v. Robinson, 625 F.2d 1211, 1219 (5th Cir. 1980)). The Government has made no attempt to carry its burden on the first step, and an independent review of the record finds insufficient evidence of voluntariness. As to the second inquiry, the Government offers that the inevitable discovery exception saves these items because officers could have obtained a search warrant if Groce refused to give consent. Doc. 120 at 8. However, “[b]ecause a valid search warrant nearly always can be obtained after the search has occurred,” the Eleventh Circuit has expressly rejected this argument. United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). Instead, officers must already be “pursuing a lawful means of discovery at the time the illegality occurred.” Id. To hold that a hypothetical future search warrant cures the earlier illegality “would practically destroy the requirement that a warrant … be obtained before the search takes place,” and undermine the “constitutionally-mandated preference for substituting the judgment of a detached and neutral magistrate for that of a searching officer.” Id.; see also United States v. Quinney, 583 F.3d 891, 894-95 (6th Cir. 2009) (rejecting the government’s argument that the inevitable discovery doctrine cures a Fourth Amendment violation when officers could have, but did not, obtain a search warrant before seizing the defendant’s printer); ….
. . .
C. Warrantless Search of Groce’s Vehicle
While the search of Groce’s vehicle may not be fruit of the poisonous tree, it was illegal nonetheless. At the time of Groce’s arrest on July 21, 2014, ACSO deputies seized and impounded his Lincoln Town Car from the parking lot outside his place of employment. Tr. at 32. The following day, police searched Groce’s vehicle without his consent and without a warrant, seizing several items of interest. Def. Ex. 11 at 23. Groce contends that this evidence must be suppressed because the search of his vehicle violated his Fourth Amendment right against unreasonable searches and seizures. The court agrees.
. . .
The Government does not carry its burden. At the hearing, the Government did not present any evidence demonstrating that Groce’s vehicle was jeopardizing public safety, impeding the efficient movement of traffic, was stolen, or presented a risk of vandalism or theft such that its impoundment was warranted. See United States v. Foskey, 455 F. App’x 884, 889 (11th Cir. 2012). The Government likewise failed to offer evidence demonstrating any standardized criteria or established ACSO departmental policies for conducting inventory searches, or that the officers complied with these policies when they impounded and searched Groce’s vehicle. In fact, the ACSO Report of Investigation specifically states that the officers drove to Groce’s place of employment “to take custody of the suspect’s vehicle, which was used in the commission of the robbery,” and that they “searched the vehicle for any useable evidence” after they impounded it. Def. Ex. 11 at 22-23. This goes well beyond the scope of a permissible inventory search.
Because the search of Groce’s vehicle was conducted without a warrant and the Government has failed to establish the applicability of the inventory search exception to the Fourth Amendment’s general prohibition against warrantless searches, the search of Groce’s vehicle was conducted in violation of his Fourth Amendment rights. Any evidence obtained as a result of this search must be suppressed.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)