E.D.La.: Seizure of car for inventory on seeing gun was without PC; “post hoc” claim of PC falls on deaf ears because they never acted like there was

Officers procured multiple warrants for defendant’s apartment, a cooler, and another vehicle, but never his car. Then they saw a gun in the car and decided to inventory. The government also claimed probable cause and a valid reason for seizure, but the court didn’t buy it. Their “post hoc” claim of probable cause failed because there wasn’t to begin with. United States v. Johnson, 2023 U.S. Dist. LEXIS 224378 (E.D. La. Dec. 18, 2023):

While the Court is satisfied that the DEA followed a valid policy on inventory searches, it is not persuaded that the search in this case falls within the inventory search exception to the warrant requirement. The critical issue here is whether the vehicle was properly taken into custody in the first place. To be seized pursuant to the Controlled Substances Act’s forfeiture provisions, if there is no warrant, the government must show (1) probable cause to believe the property would be subject to forfeiture, in this case, that the vehicle in question was used to transport narcotics, and (2) that either the seizure was done pursuant to a lawful arrest or search, or that a warrant exception applied. See 18 U.S.C.§ 981(b)(2)(B). The Court understands the language that the seizure be done “pursuant to a lawful search or arrest,” as used in § 981(b)(2)(B)(i), to implicate the community caretaking function, such as when an individual is lawfully arrested upon being pulled over and the vehicle must be taken into custody for community caretaking purposes. The government has argued only probable cause.

Here, law enforcement had never witnessed the Mercedes transport narcotics, it was parked legally a couple of blocks away, and it was unmoving, unoccupied, and legally parked. Law enforcement had the foresight to call for a second warrant for the cooler Johnson was carrying while arrested and had the time to wait for this warrant to be issued, but they did not seek a warrant for Johnson’s car. The agent testified at the suppression hearing that Johnson was a big fish, they had been investigating him for some time, and they had heard he drove a Mercedes and/or a Range Rover. They saw him arrive at the apartment earlier that morning in the Mercedes, and then tailed him in the car. The Court cannot help but wonder why law enforcement did not seek a warrant for his car under these circumstances.

Based on the briefings, the evidence adduced at the suppression hearing, and the applicable law, the Court cannot reasonably conclude that this was a valid seizure and therefore the inventory search exception to the warrant requirement does not apply. Sometimes, too many cooks in the kitchen leads to small oversights, such as the request for a warrant for one item but not another. That does not permit a post hoc finding of probable cause when none existed at the time of the arrest. There was no probable cause to find that the vehicle was used to transport narcotics and therefore subject to forfeiture. Law enforcement could have obtained another warrant for the car, as they did the cooler, but they did not. The fruits of such seizure, in this instance the firearm, must therefore be suppressed.

For the foregoing reasons, the Court GRANTS Defendant Gregory Johnson’s Motion to Suppress.