NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0537n.06 No. 10-3180 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. J OCQUE D. B AL L ARD, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT C O U R T F O R T H E NORTHERN DI STRI CT OF OHI O

BEF ORE: NORRI S, GI BB ONS, and GRI FF I N, Circuit J udg es. GRI FF I N, Circuit J udg e. Def endant J ocque Ba llard appea ls his conviction for being a felon in possession of a firea rm and ammunition, in violation of 18 U.S.C . § 922(g )(1)

. Ba llard arg ues that the district court er red in deny ing his motion to suppress evidence discovere d during an inve n t o ry sear ch of his vehicle. We affir m. I

. I n the ea rly morning of Jul y

19, 2009, police office rs Scott De ndinge r and J

. Ba y s were on p at rol in a residential neig hborhood of Canton, Ohio. At approximately 1:30 a.m., Officer Dending er observe d a vehicle, now known to be driven by defe ndant Ba llard, trave ling at what app ea re d t o b e a high rate of speed. Suspicious, the officers followed the vehicle in their m arke d patrol ca r, ac tivating a

dash-boa rd ca mera to rec ord all subseque nt events.No. 10-3180

United States v. Ballard

Ba llard, awa

re of the prese nce of the patrol car , trave led at an appropr iate speed. Howeve r, afte r makin g sever al signa led turns, Ba llard pulled his vehicle to the curb and parke d without signa ling. Ba sed upon this traff ic violation, the office rs perf ormed a traff

ic stop of Ba llard and his vehicle. During the stop, the offic ers checke d the validi ty of Ballard’ s driver’ s license by using the L EADS police databa se. L EADS indicated that Ba llard’s driver’ s license was suspended for lacking insurance or financ ial responsibility (commonly ref err ed to as an “F RA” suspension). Under Ohio l aw , “[n] o person shall opera te, or permit the opera tion of, a motor vehicle

. . . , unless proof of financ ial responsibility

is maintained continuously throug hout the reg istration period with respe ct to that vehicle[.]” Ohio Rev. Code Ann. (“O RC”) § 4509.101(A)( 1). Fa ilure to ma intain pr oof of financ ial responsibility may result in an FRA suspension. ORC § 4509.101(A)( 2)(a ). Driving while under a n FRA suspension is classified a s a misdemeanor offe nse. ORC § 4510.16. Officer De n d i n g er testified at the suppression hear ing that, pursuant to standard police proce dure, Ballar d’s FRA suspension require d that his vehicle be towed and impounded. Prior to the impound, police depar tment policy further require d that office rs conduct an inventory sear ch of Ba llard’s ve hicle to document its contents. During the i nventory sear ch of Ba llard’s vehicle, a firea rm was f ound beneath the driver’ s seat. I n response to this discovery , Offic er Dending er asked Ba llard, who was detained in the back

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United States v. Ballard seat of the patrol ca

r, why he had not informed t he officer s of t he presence of t he firear m. At this time, Ba llard had not re ceive d Miranda war nings. 1 Fo l l owing the firea

rm’s discovery , Ba llard was place d under arr est and transporte d to t h e Canton police headqua

rters. During this commute, Ba llard initiated a conver sation with the office rs by asking , “wha t would have be en the diff ere nce if I had said [t he fire arm] was in [the vehicle]? ” Offic ers informed Ba llard that he still would have been arr ested. A few wee ks later, afte r rec eiving 2 Miranda war

nings , Ba llard was interviewe d by an FB I ag ent. During this interview, Ba llard acknow ledg ed his possession of the fire arm. On September 10, 2009, Ba llard was indicted on a single count of being a felon in possession of a firea rm and ammunition, in violation of 18 U.S.C. § 922(g )(1)

. I n October 2009, Ba llard filed

a motion to suppress the evidenc e and statements stemming from the inventory sear ch of his vehicle,

asser ting that the sea rc h wa s d o n e in violation of his Four th Amendment rig hts. Following the submissi on of the parties’ briefs, the district court convene d a hear ing on the motion, rec eiving testimony from Offic er Dending er and Ba llard, and revie wing the dash-boa rd video rec ording

. At the conclusion of the hear ing, the district court denied Ba llard’s motion, holding that the discovery of the firea

rm, and the statements stemming there from, wer e the result of a const itutionally

permissible inventory

sear ch.

The g overnme nt did not seek to introduce Ba llard’s un- Mirandized statements in response 1 to this i nquiry

. The district court held that beca use Ba llard initiated this conver s a tion with the office rs, there 2 was no Miranda violation. Ballar d does not cha lleng e this finding on a ppeal. - 3 -No. 10-3180

United States v. Ballard

On Novembe r 1 6 , 2009, Ba llard enter ed a conditional g uilty plea, rese rving the rig ht to appea l from the district court’s denial of his suppression motion. There afte r, Ba llard was sentenc ed to 92 months of incar cer ation, to be followed by three y ear s of supervised rele ase. Final judgme nt

was e ntere d on Fe bruar

y 9, 2010, and this timely

appea l followed. I I

. Ba llard arg ues that the district court err ed in deny ing his motion to suppress evidenc e seized d u ri n g the i nventory sear ch of his vehicle and all evidenc e derived t here from. When revie win g a district court’s ruling on a mot ion to suppress, we revie w findi ng s o f fact for clear err or and leg al conclusions de novo. United States v. Tackett , 486 F.3d 230, 232 (6th Cir. 2007). I n ad dition, “[w]hen the district court has denied the motion to suppress, we revie w all evidenc e in a light most favor able to the Gover

nment.” United States v. Coffee , 434 F.3d 887, 892 (6th Cir. 2006) (interna l quotation marks and c itation omit ted). I I I

. T he Supreme Court has long rec og nized that law enfor ceme nt officia ls may make a

war rantless inventory sear ch of a legitimately seized vehicle, pr ovided that the prope rty inventory is conducte d acc ording to standardized criter ia or an established routine. Colorado v. Bertine , 479 U.S. 3 6 7, 371-74 (1987); South Dakota v. Opperman , 428 U.S. 364, 372 (1976). These sear ches “ser ve to protec t an owner ’s proper ty while it is in the custody of the police, to insure ag ainst claims of l ost, stolen, or vandaliz ed property , and to g uard the police from dang er.” Bertine , 479 U.S. at 372. Vehicle inventory s ea rc h es are an exception to the Four th Amendment’s probable cause
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United States v. Ballard require ment and are valid if conducte d in acc ordanc e with standard police proce dures. Id. at 371-72; United States v. Harv ey , 16 F.3d 109, 112 ( 6th Cir. 1994). The inventory sear ch perf ormed in this case was constitutionally permissible beca use it was conducte d in confor

mity with established policy and proce dures. After stopping Ba llard for failure to signa l, the office rs discovered t h at h e was subject to an FRA suspension. Acc ording to the

3 unref uted testimony of Offic er Dending er, standa rd Canton Police Depa

rtment proce dure require s the i mpound and inventory sear ch of a ll vehicles found to be ope rate d under an FRA suspension. I ndeed, as a result of the suspension, Ba llard was prohibited from removing his vehicle from its then

curr ent location. What’s more, Ba llard was simi l ar l y p rohibited from reque sting a third-par ty to

remove his vehicle. See Canton, OH, Codified Ordinanc es § 335.072 (“N o person, whose driver’ s

or commerc ial driver’ s license

. . . has been suspended or canc eled [for failure to pr ovide proof of financ ial responsibility ], shall opera te any motor vehicle within this Munici p al i t y , or knowingly permit any motor vehic le owned by the person to be operated by another person in the Municipality , during the period of the suspension or canc ellation[.] ”) (empha sis added)

. I n addition, the inventory 4

sear ch itself was conducte d within the bounds proscr ibed by Canton Police Depa rtment policy

. See

On appea l, Ba llard does not contest that probable cause exis ted to support the stop of his 3 vehicle for the failure t o s i gn al p ri or to parking

. See Canton, OH, Codified Ordinanc es § 331.14 (“N o person shall stop or suddenly decr ease the speed of a vehicle without first g iving an appropr iate signa l[ .]”). A third-par

ty may opera te a vehicle owned by an individual under an FRA suspension if they 4 have proof of financ ial responsibility “with respe ct to that driver’ s opera tion of that vehicle.” ORC § 4509.101(A)( 1). Her e, there is no evidenc e indicating that any individual obtained proof of financ ial responsibility

in order to ope rate Ba llard’s ve hicle.

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United States v. Ballard

Gene ral Or der N o. 38, at 3 (Eff ective Sept. 1, 1991) (lim iting inventory sear ches to the inter ior of the vehicle, the trunk if key s ar e av ai l able, unlocked interior compar tments, locked interior compar tments if key s are available , and unlocke d container s within the vehicle). Despite the office rs’ adher ence the police depar tment policy and proce dure, Ba llard asser ts that the i mpound of his vehicle w as unconstitutional beca use: (1) the office rs were gra nted “total discretion” in dec i d i n g whether to impound the vehicle, and (2) the impound was unnece ssary beca use the ve hicle wa s parke d in a leg al par king spot. B oth arg

uments are without merit. Ba llard’s asser

tion that the office rs had unfetter ed discretion in deciding whether to impound his vehicle is fac tually incorre ct. I t is undisputed that Canton’s Codified Ordinanc es provide office rs with discretionar

y authority to impound a vehicle opera ted under a suspended license. See Canton, OH, C odified Ordina

nces § 303.08 ( “Police off icer s . . . are authorized to provide for the removal and impounding of a vehicle under the following circ umstances:
. . . (i) When any vehicle has been opera ted by any person who is driving without a lawful license or while his license has been

s u s pended or revoke d.”); Gene ral Orde r No. 38 (same)

. Howeve r, acc ording to the unreb u t t ed testimony of Offic er Dending er, when a driver is subject to an FRA suspension , the office rs have no discretion and are require d to impound the vehicle. This policy is consistent with Ohio law beca use 5

n o p er s o n may opera

te a vehicle owned by an individual under an FRA suspension unless specific ally authorized to do so. See ORC § 4509.101(A)( 1); Canton, OH, Codified Ordinanc es §

“Whether a police depar t m en t m aint ains a written policy is not deter minative, wher e 5 testimony establishes the e x istence a nd contours of the policy .” Tackett , 486 F.3d a t 233.

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United States v. Ballard

335

. 0 7 2

. Acc ording ly , the office rs did not have unfetter ed discretion in order ing the impound of Ba llard’s vehicle; rathe r, this action was done pursuant to a rea sonable and mandatory police depar tment prac tice. Ba llard’s nex t arg ument, that the police unc onstitut ionally impounded his vehicle beca use it was leg ally parke d, is also easily reje cted. As n o t ed ab o ve, Ba llard’s vehicle was parke d on a public street and could not be remove d by Ba llard or a third-par ty
. There fore , the decision to follow police department policy

and impound the vehicle was re asonable for sa fety and tra ffic pur

poses. See Harve y , 16 F.3d at 112 (“[T]he police lawfully exercised their discretion in deciding to impound the vehicle in the absenc e of any licensed driver t o attend to it, and they followed depar tmental p o l i cy in doing so.”); Colli ns v. Nagle , 892 F.2d 489, 494 (6th Cir. 1989) (“[The Four th Amendment] inquiry does not require a deter mination of whether there was in fa ct a need

. . . to impound the truck; instead we are require d to determine w hether the

. . . decision to impound was

rea sonable unde r the c ircumstance s.”); United States v. Griffin , 729 F.2d 475, 480 ( 7th Cir. 1984) (noting that it wa s re as o n able to tow a vehicle that “would have been otherwise left unattended, possibly fo r an ex tended period, in close proxi mity to the trave led portion of a busy , high speed roadw ay ”). Moreove r, there is no evidenc e indicating that the office rs impounded Ba llard’s vehicle in order to perf

orm an inventory sear ch and discover evidenc e of criminal activity

. See Opperman , 428 U.S. at 376 (holding that an inventory sear ch wa s constitutionally permissible in part bec ause there was “no sug g estion” that the sear ch “wa s a prete x t conce aling an investiga tory police motive”).

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United States v. Ballard

I V. I n sum, the district court did not err in deny ing Ba llard’s motion to suppress. The impound and inventory sear ch of his vehicle we re rea sonable and perf ormed in acc ordanc e with police depar tment policy and proce dure, there by comply ing with the Four th Amendment. Acc ording ly , the evidenc e discovere d d

u r in g th e s e a

r c h , a n d a ny s ta te me nts derive d there from, wer e proper ly admitted and conside red by

the district court. For

these re asons, we a ffirm the district c ourt’s judg ment. 6

Be cause there is no Four

th A mendment violation, we need not addre ss Ba llard’s asser tion 6 that his voluntar

y statements should be suppressed as “fr uit of the poisonous tree.” Whil e B allard makes passing comments reg arding the Miranda violation th at t o ok place following the office rs’ discovery of the firea

rm, he makes no meaning ful arg uments reg arding whether such a violation require s th e suppression of any subsequent voluntary statement. Acc ording ly , this arg ument is forf eited. See Asher v. Unarco Material Handling, Inc. , 596 F.3d 313, 321 (6th Cir. 2010) (interna l quotation marks and citation o m i t t ed ) (“[I ]t is a settled appellate rule that issues adver ted to in a per fu n ctory manner , unacc ompanied by some eff ort at develope d arg

umentation, are deeme d waived.” ). Moreove r, any such arg ument would be meritless. See Oregon v. Elstad , 470 U.S. 298, 308 (1985) (holding that a “nonc o er ci ve Miranda violation” does not require suppression of subsequent voluntary

statements as “ fruit of the poisonous tree ”). - 8 -