Opinion
99 Cr. 1110 (RWS)
October 27, 2000
HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York and EDWARD C. O'CALLAGHAN, ESQ., Assistant US Attorney, New York, NY, Of Counsel, Attorney for United States of America.
MAURICE H. SERCARZ, ESQ., New York, NY, Attorney for Defendant,
OPINION
Defendant Jeffrey Flores ("Flores") has moved to suppress evidence seized from his automobile by agents of the Drug Enforcement Agency ("DEA") after his arrest. For the reasons stated below, the motion is granted.
Facts
On or about October 15, 1999, Flores was named in a complaint filed in the Southern District of New York that charged him with participating in a conspiracy to distribute cocaine and crack cocaine. The complaint stated, inter alia, that a cooperating witness had observed a 9 millimeter pistol and cocaine in a hidden compartment of Flores's vehicle. An arrest warrant issued.
On or about October 20, 1999, in cooperation with DEA agents, officers of the Cape Coral, Florida Police Department visited Flores's home and asked his wife to telephone him at work, stating that his vehicle had been involved in a hit-and-run incident. Flores's wife paged him, and when he called home, the officers repeated the allegation to him and suggested Flores drive his car to a Wendy's parking lot to meet them. Flores drove to the Wendy's, parked in the lot, stepped out of the vehicle, and approached a local police officer who had already arrived. Soon thereafter, DEA agents arrived and placed Flores under arrest.
While Flores was transported to a DEA office in Fort Meyers, Florida, officers drove his car to that location. Agents searched the interior of the car, yielding, inter alia, an address book, a calendar book, a cellular telephone, a photograph, and personal identification documents. Flores did not receive any receipt or inventory reflecting the items seized on that date.
Items that were "of no evidentiary value" were returned to Flores's wife, Sherry Blake-Rodriguez, when she arrived to pick up the car later the same afternoon, which she acknowledged by signing DEA Form 12 as a receipt.
On September 13, 2000, Flores moved to suppress the evidence seized from his vehicle on the grounds that the search did not fall into a lawful exception to the search warrant requirement.
A sworn affidavit from Flores is attached to the motion. The Government's September 29, 2000 response memorandum contends that the search was made pursuant to a lawful inventory of the vehicle.
The parties argued the motion on October 11, 2000, and agreed to submit the motion without submitting any additional evidence.
Discussion
The government must obtain a search warrant before searching an individual's property unless an exception to the warrant requirement applies. Katz v. United States, 389 U.S. 347 (1967). Here, the Government argues only that the search was justified under the lawful inventory search exception, which allows police to conduct a warrantless search of a vehicle in order to (1) protect the owner's property while the vehicle is in police custody; (2) protect the police against claims of lost or stolen property; and (3) protect the police from potential danger. See Colorado v. Bertine, 479 U.S. 367, 372 (1987); Illinois v. Lafayette, 462 U.S. 640, 646 (1983); South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
In a motion to suppress physical evidence, the burden of proof is initially on the defendant. United States v. Sacco, 563 F.2d 552, 558 (2d Cir.), cert. denied, 434 U.S. 1039, 98 S.Ct. 779, 54 L.Ed.2d 789 (1978) (citing United States v. Sapere, 531 F.2d 63, 66 (2d Cir. 1976)). Once the defendant has established some basis for the motion, the burden shifts to the government to show that the search was lawful. Id.
Because Flores's affidavit raises questions as to whether the search was merely pretextual, or was an inventory search at all, the defense has shown an adequate basis for the motion. In combination, Flores's uncontested claims that he was already in custody when the car was searched, that his wife was available to pick up the car immediately (and did so soon after he arrived at Fort Meyers), and that the agents never gave him an itemized inventory after the search, are sufficient to shift the burden to the Government to prove by a preponderance of the evidence that the search was lawful.
For an inventory search to be lawful, the search must be conducted pursuant to standardized procedures. See Florida v. Wells, 495 U.S. 1, 4 (1990); United States v. Griffiths, 47 F.3d 74, 78 (2d Cir. 1995). This requirement ensures that inventory searches will not be conducted as a "ruse for a general rummaging in order to discover incriminating evidence." Id.; see Griffiths, 47 F.3d at 78; United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994). In addition, the policy must limit officers' discretion in deciding whether to search and how broad in scope the search will be. Bertine, 479 U.S. at 375. Inventory procedures may be proved by reference to written regulations or by testimony regarding standard practices. Thompson, 29 F.3d at 65. Finally, once it has established that routine procedures exist, the government must show that its agents followed those procedures in the search at issue. See United States v. Palacios, 957 F. Supp. 50, 55 (S.D.N.Y. 1997) (suppressing evidence where agents failed to follow FBI inventory policy); United States v. Santos, 961 F. Supp. 71, 75 (S.D.N.Y. 1997) (same). An inventory search pursuant to standardized procedures will be upheld unless there is a showing that government agents acted in bad faith or searched the car for the sole purpose of investigation. United States v. Arango-Correa, 851 F.2d 54, 59 (1988).
Here, the Government has introduced no evidence to support its argument that (a) DEA agents have a standard policy for conducting inventory searches of vehicles; or that (b) the agents who conducted the search of Flores's car followed those procedures.
Without any such evidence, a lawful inventory search has not been established. See Wells, 495 U.S. at 3, 4 (affirming suppression of evidence seized from vehicle where "the record contained no evidence" of the inventory policy); United States v. Burgos, No. 3:96CR190(AHN), 1997 WL 409526, *8 (D.Conn. July 14, 1997) (suppressing evidence seized from vehicle where the government presented no evidence of inventory procedures); United States v. Muyet, 946 F. Supp. 302, 314 (S.D.N Y 1996) (declining to find that search would have been lawful under inventory search exception because the "Government failed to introduce sufficient evidence to prove the existence of standardized inventory procedures"), aff'd, 225 F.3d 647 (2d Cir. 2000) (table).
Conclusion
For the aforementioned reasons, the evidence seized from Flores's vehicle will be suppressed.
It is so ordered.