A San Bernardino Sheriff deputy’s finding of a firearm in a felon’s car was invalidated May 2 by a split appellate ruling in the Ninth Circuit Court of Appeal.
The majority opinion found that the deputies did not find the gun as part of a valid inventory of Jason Anderson’s truck, but rather as a violation of his right to privacy. A five-judge dissenting opinion disagreed.
The uncontested facts
Ninth Circuit Judge Danielle Forrest wrote the majority opinion.
Anderson was driving with an obscured license plate along an unidentified high-crime area of San Bernardino County at 2 p.m., Nov. 13, 2019. Sheriff’s Deputy Daniel Peterson noticed the obscured plates, and initiated a stop. Anderson accelerated and made a series of abrupt turns, before ending up on a dead-end street and parking his car in a driveway.
Anderson at first claimed that the driveway was his friend’s, but admitted that his driver’s license was expired. Dispatch informed Peterson that Anderson was a career criminal, with six prior felony convictions. A second deputy, Kyle Schuler arrived.
The deputies talked with the owner of the driveway, who said that he did not know Anderson, and wanted the car removed. The parties dispute at which point the owner talked with the deputies.
The deputies said they were going to tow the truck, and needed to conduct an inventory search. They found a loaded handgun under Anderson’s seat.
He was charged with being a felon in possession of a firearm. He petitioned to suppress the handgun, but his petition was denied. He appealed, but then pleaded guilty. He was sentenced to six years and five months imprisonment, with three years’ supervised release.
The inventory-search exception
The appellate court had to decide whether the warrantless search was allowed under the inventory-search exception. The exception allows police to search a vehicle that is being towed, for the purpose of maintaining an inventory. That inventory would ensure that the owner of the vehicle would receive all of their property after picking up the car.
It cannot be forgotten that the purpose of (an inventory) search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger, the majority opinion says.
The majority opinion found that the sheriff’s deputies did not properly follow department policy on creating an inventory list.
The San Bernardino County Sheriff’s Department requires deputies to record every item in a seized vehicle, the majority opinion said. In this case, the deputies only recorded the gun.
“The bottom line is simple: the deputies’ recording of a single item used as evidence, despite SBCSD’s procedure requiring that they inventory ‘any personal property contained within the vehicle’ was not mere ‘minor’ or ‘slipshod’ noncompliance. It was a material deviation from SBCSD’s standard inventory procedure, and the ‘inventory’ that they produced was incapable of serving the non-investigative purposes of protecting an owner’s personal property and protecting officers against accusations of theft or loss of an owner’s property,” the opinion says.
The deputies did not record or secure any of Anderson’s other property in the truck—including sunglasses, a watch, a speaker and tools.
The deputies decided to impound Anderson’s truck because he did not have a valid license, but they also were suspicious of him because he was carrying $200 dollars and gloves, and he had a past criminal history, the ruling said.
Their actions and their breaking from the policy showed that the warrantless search was not done to provide an inventory, but rather to further investigate Anderson in violation of his Fourth Amendment Right to Privacy, the majority found.
The caretaking justification
In a concurring opinion, Ninth Circuit Judge Salvador Mendoza said that the deputies did not have a proper reason for towing the car, thus invalidating the inventory search even if the deputies had made a proper inventory. The majority opinion did not consider this question, finding that the failure to prove the inventory-search exception preempted any question of a proper reason to tow.
Deputies had said they were towing the car because the property owner told them he did not want it on his property. Both Michael Wallace, the homeowner, and Anderson said that the search began before Wallace spoke to the deputies. Mendoza said that the time frame for the deputies—based on the dispatch log and the audio recording—made the deputies’ claims impossible.
Mendoza’s opinion countered the District Court’s finding of fact that the deputies did begin the search and tow at the prompting of Wallace.
Peterson called into dispatch to ask about Anderson’s license at 2:04 a.m., and Schuler was speaking with Anderson until 2:06 a.m., Mendoza wrote. Peterson called in to dispatch again at 2:08 a.m., to report the gun.
The deputies’ version of events is that they questioned Anderson, led him, while he was objecting, to their patrol car, woke up Wallace, spoke with Wallace, got the direction from Wallace that he did not want the truck in his driveway, searched the car, found the firearm, read the gun’s serial number and called it in to dispatch in two minutes, Mendoza wrote.
“In my view, this is an implausible timeline of events,” Mendoza wrote.
Wallace testified that it took him a minute or two to wake up and answer the door, and that he spoke to Schuler for three to five minutes.
“Thus, at the time deputies searched Mr. Anderson’s truck, they had no basis to disprove Mr. Anderson’s claim that he was parked at a friend’s house, and therefore, had no community caretaking reason to impound and search his truck,” Mendoza wrote.
Dissenting opinion
Ninth Circuit Judge Daniel Bress wrote a dissenting opinion, arguing that the majority opinion violated precedent and turned departmental policies into constitutional rules.
“With an inspector’s clipboard, the majority instead holds that officers violated the Constitution because they did not follow the court’s new hyper-technical rules for filling out forms—which the deputies here had to do in the middle of the night after lawfully stopping a career criminal,” the minority opinion reads.
The opinion said that photos taken of the truck interior qualified as a complete inventory—regardless of whether it violated San Bernardino Sheriff’s guidelines in inventory recording.
“Deputies validly detained Anderson after he sped away from a lawful traffic stop and upon learning that Anderson had an expired license and was a career criminal (he had six prior felony convictions). Deputies had a valid basis for impounding Anderson’s vehicle because Anderson lacked a valid driver’s license and was parked in the driveway of a random home on a dead-end street, with the homeowner telling deputies he wanted Anderson’s truck removed. The truck had to be towed, and so deputies, under department policy, had to perform an inventory search,” the opinion said.
The minority opinion did not touch too long on the question of the tow being proper, since the question was only raised by the concurring opinion. In a footnote, the opinion said that the district court’s finding that the tow was asked at the request of Wallace was not obviously incorrect to the point that the appellate court should overrule it.
It also said that asking for a complete inventory of everything in a car is unnecessary, and placed too high a burden on law enforcement.
“What about all the trash? Like many people, Anderson had a lot of stuff in his vehicle. The message to convicted felons in San Bernardino is that if they want to drive armed, it is best to have a very messy car. But is the officers’ failure to inventory every single item at 2 o’clock in the morning truly the basis for a finding of bad faith, by which a six times-over convicted felon will avoid a 77-month federal sentence for unlawfully possessing a loaded gun?” the opinion said.
