and Submitted October 5, 2017 Portland, Oregon
from the United States District Court for the District of
Oregon Robert E. Jones, Senior District Judge, Presiding D.C.
Louise Moro (argued), Tonia L. Moro Attorney at Law PC,
Medford, Oregon, for Defendant-Appellant.
Horsley (argued), Assistant United States Attorney; Kelly A.
Zusman, Appellate Chief; Billy J. Williams, United States
Attorney; United States Attorney's Office, Portland,
Oregon; for Plaintiff-Appellee.
Before: Diarmuid F. O'Scannlain, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
panel reversed the district court's denial of a motion to
suppress evidence found on the defendant's person and in
the car he was driving at the time of his arrest; vacated his
conviction and sentence for possession with intent to
distribute methamphetamine; and remanded for further
defendant argued that the manner in which the officers
arrested him was a pretext to conduct the inventory search
that followed. The panel held that the defendant failed to
show that the officers' decision to pull him over and to
impound his car would not have occurred in the absence of an
light of United States v. Orozco, 858 F.3d 1204 (9th
Cir. 2017), the panel held that the officers' search and
seizure of items from the defendant's car cannot be
justified under the inventory-search doctrine because the
officers explicitly admitted that they seized the items in an
effort to search for evidence of criminal activity. Because
the government did not offer any justification for the
seizure of the property other than the inventory-search
doctrine, the panel concluded that the district court erred
in denying the motion to suppress.
concurring, Judge O'Scannlain (joined by Judge Bea)
concurred fully in the court's opinion, which faithfully
follows Orozco, but wrote separately because he
believes Orozco contradicts earlier Supreme Court
precedent and ought to be reconsidered by this court.
concurring, Judge Paez concurred in the court's opinion
without reservation; he disagrees with his colleagues'
separate concurrence that Orozco should be revisited
in light of Brigham v. City of Stuart, 547 U.S. 398
decide whether the trial court erred in failing to suppress
evidence that was seized by City of Portland police officers
during their inventory search of a criminal defendant and the
car he was driving at the time of his arrest.
April 10, 2014, Multnomah County Sheriff's deputies
located Mark Johnson-who had an outstanding warrant for his
arrest based on a post-prison supervision violation-at the
Clackamas Inn, just south of Portland, Oregon. The deputies
followed Johnson to a residence in the nearby town of
Gladstone and called Portland Police Bureau (PPB) Officers
Joseph Corona and Jerry Ables for assistance in arresting
officers did not approach Johnson at the residence, but
instead waited outside. After about 20 minutes, Johnson left,
and again the officers followed him. At a nearby
intersection, the officers finally stopped Johnson by loosely
boxing in his car; one car approached Johnson from behind
while another approached from the front, effectively blocking
Johnson's ability to drive away. The cars all came to a
stop within a few feet of each other, and although there was
enough room for Johnson to pull his car to the side of the
road, he instead parked in the lane of traffic, disrupting
the flow of passing cars. When approached by the officers,
Johnson could not provide proof of insurance for the car,
which he was borrowing, nor could he give anything other than
the first name of the car's owner. Johnson did not know
how the police could contact the owner.
officers arrested Johnson on the outstanding warrant.
Incident to the arrest, the officers searched Johnson and
found a folding knife in his front pocket, $7, 100 in cash in
$20 and $100 denominations in his rear pants pocket, and $150
in cash in his wallet. Johnson said that he had recently
inherited the $7, 100 and that he planned to purchase a car
with it (though he did not know what kind of car he intended
to buy or where he would purchase it).
Johnson's car was blocking traffic and because Johnson
could not provide contact information for the car's
owner, the officers ordered it to be towed and impounded,
pursuant to PPB policy. Prior to the tow, the officers
conducted an inventory search of the car, again pursuant to
local policy. From the interior of the car, the officers
collected a combination stun gun and flashlight, a glass pipe
with white residue, a jacket, and two cellphones. From the
trunk, the officers collected a backpack and a duffel bag.
Officer Corona testified that, when he moved the backpack and
duffel in order to search for other items in the trunk, the
bags felt heavy and the backpack made a metallic
"clink" when he set it down on the pavement. PPB
stored each of the seized pieces of property in the County
property and evidence warehouse, and the $7, 100 was taken
into custody by the County Sherriff's Office. Officer
Corona recorded each item seized on an accompanying arrest
report; the Sheriff's Office prepared a property receipt
for the $7, 100 in seized cash.
later, Officer Corona submitted an affidavit to secure a
warrant to search the seized backpack, duffel bag, and cell
phones. The affidavit referred to a 2009 police report (which
Corona read after arresting Johnson) that stated Johnson had
previously been found with cash, weapons, and drugs in a safe
concealed in his vehicle. Officer Corona's affidavit
stated that, based on the circumstances of Johnson's
recent arrest, he had probable cause to believe the bags
seized from the trunk would contain similar lockboxes, and
that the phones would contain evidence of drug dealing.
warrant was duly signed by a local magistrate judge, and a
search of the backpack revealed a small safe containing two
bags of methamphetamine, drug-packaging materials, syringes,
and a digital scale. The backpack also contained paperwork
with notes on court cases that corresponded to several
criminal prosecutions of Johnson. The duffel bag contained
Johnson's personal items, and one of the cellphones
contained text messages regarding drug trafficking.
was indicted on one charge of possession with intent to
distribute methamphetamine in an amount of 50 grams or more,
in violation of 21 U.S.C. §§ 841(a)(1),
trial, Johnson moved to suppress the evidence found in the
car and on his person at arrest. Primarily, Johnson
challenged the evidence supporting the warrant to search the
backpack and cellphones, arguing that it did not amount to
probable cause. Johnson also argued that the officers
unlawfully manipulated the bags they seized from the car in
order to get a sense for what they might contain and that the
inventory search of his car was invalid. The district court
denied the motion, concluding that there was probable cause
to stop and to arrest Johnson on the outstanding warrant, the
officers validly impounded Johnson's car because it was
blocking traffic, the subsequent inventory of the vehicle was
"lawful because [PPB] mandates officers to conduct an
inventory of impounded vehicles, " and the search
warrant was supported by probable cause.
trial, the government introduced the evidence found in
Johnson's car and on his person, with a particular focus
on the items of evidence found in the backpack, the messages
from the cellphone, and the $7, 100 in cash. The jury found
four months later, Johnson filed a motion for new trial on
the basis of, among other things, two pieces of supposedly
newly discovered evidence: (1) evidence showing that Johnson
had indeed recently received an inheritance; and (2) a
receipt from the private company that towed and impounded his
car, which stated that they found various additional items of
property in the car that were not listed in Officer
Corona's arrest report. After a hearing, the district