The Sixth Circuit approves of an inventory search of a duffle bag after defendant had an accident and was there with it. He ran off the road and crawled up the embankment with the duffle bag and a computer bag. A good samaritan stopped and called for help and waited as EMTs and police arrived. The defendant was slipping in and out of consciousness, and he expressed concerned about the duffle bag he had with him, and the police looked in it, finding an unlawful gun and silencers. Against the argument that the police had an investigatory motive, the court followed the Second Circuit and found that not controlling. United States v. Tackett, 486 F.3d 230 (6th Cir. 2007):
Second, Tackett argues that even if the police had an established inventory policy, his asserted privacy interest outweighs the police department’s interest in opening the bag. More to the point, he insists that, in general, the police rely post hoc on such policies simply to legitimize their investigatory motives. The Second Circuit’s decision in United States v. Markland addressed and rejected a similar claim, and we find its analysis persuasive. 635 F.2d 174 (2d Cir. 1980). In Markland, the court considered an inventory conducted after a driver lost control of his jeep. Id. at 175. When the jeep turned over, objects including a zippered beverage container flew out the windows of the jeep. Id. When a state trooper picked up the container, it felt heavier than he expected, so he opened it and found stolen packages from the driver’s employment at the post office. Id. The Second Circuit rejected the driver’s argument that police departments should take a “hands-off” approach to private property in order to eliminate their potential liability for lost, stolen, or damaged items. Id. at 176. Instead, the Second Circuit held that police officers’ duty to protect citizens’ property and prevent crimes justified the practice of inventory searches. Id. Moreover, officers have the right to protect themselves. See id. (“This impersonal package could have contained anything from beer to bullion or a bomb. Its contents might have been perishable, valuable, or dangerous.”).
The court did recognize, as we do, that some situations [*8] create a greater expectation of privacy. To take two examples, a repository of personal effects could deserve more privacy than a generic container, or an individual could manifest her privacy expectations with an objective signal. See id. at 177. Neither situation applies here. The large backpack in this case is not akin to a “repository of personal effects,” such as a purse.
Tackett contends that in removing the bag from the car and carrying it with him to the truck, he manifested his privacy interest in the bag. But Franks testified that although Tackett removed the bag from his car, he eventually left it on the road, where it could have been damaged, lost, or stolen. Although Tackett may have had a greater privacy expectation for the backpack than for other items in plain sight in his car, he never gave the police any clear signal asserting his privacy.
Comment: Yet he was in and out of consciousness. What do they expect?
Heck barred plaintiff’s claim because, despite his conduct the claim applied only to acquitted conduct, that was not true because it also applied to counts he was convicted of. Baxter v. Crawford, 233 Fed. Appx. 912 (11th Cir. 2007)* (unpublished).
Defendant answered knock at the door and it was a police officer he’d dealt with before. He stepped back and essentially offered entry. That was consent to enter. The court also found the consent after the entry was valid. United States v. Rutherford, 2007 U.S. Dist. LEXIS 36903 (E.D. Mo. May 21, 2007):
Addressing first the entry itself, the Court finds both that Defendant voluntarily consented to Det. Van Mierlo’s entry into the apartment, and that in any event she reasonably understood Defendant to be providing consent to enter. There was no show of force by Det. Van Mierlo. She simply knocked on the door during the daylight hours and Defendant, who knew her from their prior interaction, stood back from the door and permitted her to enter. On these facts, it was also reasonable for Det. Van Mierlo to understand that Defendant was allowing her to enter. See, e.g., United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (holding officers reasonably understood they had consent to enter where defendant, after being asked if they could enter, moved away from the door and backed up), cert. denied, 543 U.S. 1155 (2005); United States v. Ramirez-Chilel, 289 F.3d 744, 748, 752 (finding officers properly interpreted actions as consent to enter where defendant opened door and stepped aside, even though search occurred at midnight); accord United States v. Hampton, 260 F.3d 832, 833, 835 (8th Cir. 2001) (consent to enter found where defendant told police his identification was inside and held door open to admit them).
