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United States v. Johnson

United States Court of Appeals, Ninth Circuit

May 14, 2018

United States of America, Plaintiff-Appellee,
Mark Patrick Johnson, Defendant-Appellant.

          Argued and Submitted October 5, 2017 Portland, Oregon

          Appeal from the United States District Court for the District of Oregon Robert E. Jones, Senior District Judge, Presiding D.C. No. 3:14-cr-00224-JO-1

          Tonia Louise Moro (argued), Tonia L. Moro Attorney at Law PC, Medford, Oregon, for Defendant-Appellant.

          Hannah 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.


         Criminal Law

         The 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 proceedings.

         The 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 impermissible reason.

         In 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.

         Specially 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.

         Specially 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 (2006).


          PER CURIAM

         We must 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.



         On 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 him.

         The 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.

         The 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).

         Because 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.

         A week 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.

         A 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.


         Johnson 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), 841(b)(1)(A)(viii).

         Before 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.

         At 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 him guilty.

         Approximately 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 court ...

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