## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 4 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 02-4015 TODD KEVIN TUELLER,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. NO. 2:00-CR-132-K)

Stephen R. McCaughey, Salt Lake City, Utah, for Def endant-Appellant. Robert C. Lunnen, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs), Sa lt Lake City, Utah, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, LUCERO and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

Upon being charged with possession of a firearm aft er a felony conviction, in violation of 18 U.S.C. § 922(g), and with possession of methamphetamine, in violation of 21 U.S.C. § 844, D efendant Todd Kevin Tueller-2-

moved to suppress certain evidence that had been fo und in his car. After the district court denied his motion to suppress, Defen dant entered a conditional guilty plea to the firearm charge. Defendant now appeals the district court’s suppression ruling. Defendant challenges two inventory searches—one that was actually conducted and one that is hypothetical. The actual inventory search was conducted by police officers as they prepared to impound Defendant’s car after his arrest during a traffic stop. That search, per formed with the assistance of a drug-detection dog, yielded incriminating evidence. Defendant contends that use of the dog rendered the search unlawful. In respon se, the government defends the use of the dog but concentrates its appellate argum ent on the hypothetical search—asserting that if the officers had not used the dog, the evidence would still have been discovered in the course of a lawfu l inventory search that would inevitably have been conducted. We address only th e hypothetical search. We hold that on the record before us the inevitable in ventory search would have been constitutional. Therefore, we need not consider wh ether the actual search was rendered unlawful by the use of the dog. Exercisin g jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s judgment and sentence. I. Background On February 12, 2000, Officer Troy Leary of the Wes t Jordan, Utah, Police Department pulled over Defendant’s car for speeding . Defendant was the driver-3-

and sole occupant. During the stop Officer Leary l earned that there were outstanding warrants for Defendant’s arrest. He ca lled for another police officer to assist in arresting Defendant. Defendant inquir ed whether some friends of his, whom he had already called, could retrieve his car from the scene. Officer Leary replied that he would allow the friends to pick up the car so long as they arrived soon. Otherwise, he would arrange to have the car towed. Officer Leary remained with the car while another officer drove D efendant to the county jail. When more than an hour passed without any sign of D efendant’s friends, Officer Leary prepared for the car to be towed and impounde d. Before impounding a car, West Jordan Police Departm ent officers “make a list of everything that’s in the vehicle, an invent ory of all property and status of the vehicle.” R., Vol. II at 17. In addition, an unwritten departmental policy directs officers to call a drug-detection dog to th e scene. According to Officer Leary, “generally if a K-9 officer is available, we will always have him come over and do what we call a sniff of the vehicle while we do any hold-for-owners or state tax impounds.” Id

. Officer Leary contacted K-9 Officer Ken Eatchel, wh o brought a dog qualified to detect cocaine, methamphetamine, heroi n, and marijuana. While performing a sniff of the interior of Defendant’s c ar, the dog indicated that there were drugs in the gearshift boot area. Officer Eat chel pulled up the boot and-4-

discovered methamphetamine and a key underneath. U sing this key, the officers opened the car’s locked trunk, where they found a h andgun, a scale, methamphetamine, and $2100 in cash. The officers w ould have been unable to unlock the trunk without the key, because there was no trunk key on the key chain holding the ignition key, and the trunk release dev ice inside the glove compartment was not working. Nevertheless, the Wes t Jordan Police Department’s written inventory and impound policies call for officers to search both locked and unlocked trunks during inventory se arches. Defendant filed a motion to suppress the evidence f ound in the trunk and gearshift boot area of his car. Following a hearin g, the district court denied the motion, ruling that (1) the search of the passengercompartment was a lawful search incident to arrest, (2) the officers’ search of the gearshift boot area was supported by probable cause, (3) the search was a l awful inventory search, and (4) the evidence in the trunk was admissible under the doctrine of inevitable discovery, because it would have been discovered inthe inventory search even if the dog had not been used. Defendant pleaded guilty to the firearm charge, con ditioned on his right to appeal the district court’s suppression ruling. Ininitially considering Defendant’s appeal, we remanded to the district court for addit ional factual findings regarding “the methods that the officers would have employed to perform an inventory of-5-

the Defendant’s locked car trunk in the absence of the owner’s trunk key.” United States v. Tueller , 58 Fed. App. 393, 397 (10th Cir. 2003). On reman d the parties stipulated that the “officers[’] procedure in this case, if they had not had a key, would have been to break into the trunk to per form an inventory.” District Ct. Order on Remand at 1. “When reviewing a district court's denial of a moti on to suppress, we accept its factual findings unless clearly erroneou s and view the evidence in the light most favorable to the government.” United States v. Hargus, 128 F.3d 1358, 1361 (10th Cir. 1997). In contrast, “the ultimate determination of Fourth Amendment reasonableness is a question of law whichwe review de novo.” United States v. Hill , 199 F.3d 1143, 1147 (10th Cir. 1999). II. Discussion Although the district court relied on a number of g rounds in denying Defendant’s motion to suppress, the parties’ argume nts on appeal center on the requirements for a proper inventory search. Defend ant maintains that the officers’ methods rendered the inventory search of his car unconstitutional. By using a dog trained to find illegal drugs, Defendan t contends, the officers demonstrated that they were improperly acting with an investigative, rather than administrative, motive. See Florida v. Wells , 495 U.S. 1, 4 (1990). The government defends the use of a drug-detection dog in an inventory search.-6-

According to the government, incorporating a drug-d etection dog into an otherwise valid police procedure does not undermine the lawfulness of the procedure. In the alternative, the government argues that we n eed not assess the legality of using the drug-detection dog, because t he officers would have inevitably discovered the contraband as the result of a proper inventory search of the trunk. For the following reasons, we agree wit h this alternative argument. A. Inventory Searches “It is common practice for the police to conduct an inventory of the contents of vehicles they have taken into their cus tody or are about to impound.” Wayne R. LaFave, Search and Seizure § 7.4 at 536 (3d ed. 1996 & Supp. 2003). Such inventories “are now a well-defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine , 479 U.S. 367, 371 (1987). They are not treated as investigative searches because t hey serve three administrative purposes: “the protection of the owner’s property while it remains in police custody, the protection of the police against claim s or disputes over lost or stolen property, and the protection of the police from pot ential danger.” South Dakota v. Opperman , 428 U.S. 364, 369 (1976) (internal citations omitted). Although inventory searches need not be supported b y a warrant or probable cause, they are restricted in other ways. First, they “are reasonable only-7-

if conducted according to standardized procedures.” United States v. HaroSalcedo , 107 F.3d 769, 772 (10th Cir. 1997). Second, “[t] he policy or practice governing inventory searches should be designed to produce an inventory,” Wells , 495 U.S. at 4; in other words, an inventory searc h must be justified by the administrative purposes of such searches, see, e.g. , United States v. Edwards , 242 F.3d 928, 938 (10th Cir. 2001) (“To be justified as an inventory search, . . . the search cannot be investigatory in nature but must i nstead be used only as a tool to record the defendant’s belongings to protect the po lice from potential liability.”). “[A]n inventory search must not be a ruse for a gen eral rummaging in order to discover incriminating evidence.” Wells , 495 U.S. at 4. B. Inevitable Discovery The government asserts that the evidence challenged by Defendant would inevitably have been discovered, without the assist ance of the drug-detection dog, through a lawful inventory search of the trunk. Th e United States Supreme Court has recognized “the ultimate or inevitable discovery exception to the exclusionary rule,” which applies when “the prosecution can esta blish by a preponderance of the evidence that the information ultimately or ine vitably would have been discovered by lawful means . . . .” Nix v. Williams , 467 U.S. 431, 444 (1984). Those lawful means include an inventory search. See, e.g. , United States v. Ibarra , 955 F.2d 1405, 1410 (10th Cir. 1992) (“[I]f evide nce seized unlawfully-8-

would have been inevitably discovered in a subseque nt inventory search, such evidence would be admissible.”). C. Application to this Case The government relies upon a hypothetical inventorysearch of the trunk during which the officers would have found the meth amphetamine, firearm, and other evidence. The government states that even if the drug-detection dog had not led them to the methamphetamine and trunk key by th e gearshift boot, (1) the officers would have searched the trunk, in complian ce with the West Jordan Police Department’s policy of conducting inventorie s of locked car trunks; (2) upon finding the contraband inside the trunk, the o fficers would have had probable cause to perform an extensive search of th e entire car, during which they would have used a drug-detection dog; and (3) this dog-assisted search would have resulted in the discovery of the methamphetami ne in the gearshift boot. Defendant’s argument against this hypothetical sear ch addresses only the first step described in the scenario—the search of the trunk. He contends that such a search would not have been part of a valid i nventory search. See, e.g. , Haro-Salcedo , 107 F.3d at 773 (the doctrine of inevitable disco very applies when “evidence seized unlawfully would have been inevita bly discovered pursuant to a legalsearch” (emphasis added)). We must therefore eval uate the hypothetical trunk search in light of the standards for inventory searches.-9-

Defendant does not dispute that a search of his tru nk would have been consistent with a “standardized procedure.” The po lice department’s written guidelines directed officers to inventory both lock ed and unlocked trunks. Nor does Defendant appear to contest the general reason ableness of conducting inventory searches of locked car trunks. In any ev ent, we approved an inventory search of a locked trunk in United States v. Martin , 566 F.2d 1143 (10th Cir. 1977). Instead, Defendant focuses his argument on the meth ods that the officers would have used to open his locked car trunk. The officers did not have a key to the trunk at the beginning of their inventory. And the trunk release device in the glove compartment apparently was broken. The offic ers were able to open the trunk only after finding the key under the gearshif t boot. At oral argument Defendant contended that without the key, the offic ers would have had to use force to open the trunk and that this would have be en an unreasonable way of performing an inventory search. When we first considered this appeal, we “remand[ed ] to the district court for further fact-finding on the issue of the method s that the officers would have employed to perform an inventory of the Defendant’s locked car trunk in the absence of the owner’s trunk key.” Tueller , 58 Fed. App. at 397. On remand the parties stipulated that “the officers[’] procedure in this case, if they had not had a-10-

key, would have been to break into the trunk to per form an inventory.” District Ct. Order on Remand at 1. Thus, we consider whether breaking into a locked trunk exceeds the bounds of a proper inventory search. Even inventory searc hes performed in accordance with standard operating procedures must satisfy the Fourth Amendment’s reasonableness requirement. See Opperman , 428 U.S. at 376 (“On this record we conclude that in following standard police procedur es, prevailing throughout the country and approved by the overwhelming majority o f courts, the conduct of the police was not ‘unreasonable’ under the Fourth Amen dment.”) Only a few reported opinions have addressed the lawfulness of breaking open a trunk for an inventory search. Although they suggest that such breaking is unlawful, these opinions are readily distinguishable. One stated that breaking would be unconstitutional, United States v. Lawson , 487 F.2d 468, 475 (8th Cir. 1973); but it predated Opperman and much of the rationale of the decision has been rejected by the Supreme Court. Other cases have somewhat di fferent facts. See State v. Cabage , 649 S.W.2d 589, 592 (Tenn. 1983) (breaking into s torage trunk on bed of pickup truck was unconstitutional); Gill v. State , 625 S.W.2d 307, 319 (Tex. Crim. App. 1981) (removing back seat to get into tr unk was unconstitutional), overruled on other grounds by Osban v. State , 726 S.W.2d 107 (Tex. Crim. App. 1986). But cf. United States v. Harvey , 16 F.3d 109, 111 (6th Cir. 1994)-11-

(approving an inventory search during which officer s removed the back seat in order to inventory the trunk, but not specifically discussing why the methods that the officers used were proper). Two other opinions noted that breaking into a trunk would violate either a local ordinance, United States v. Bradley , 219 F. Supp. 2d 1150, 1155 (D. Or. 2002), or a police f ield manual, People v. Walker , 604 N.Y.S.2d 631, 633 (N.Y. App. Div. 1993)

. In support of his argument that breaking open the t runk would have been unreasonable, Defendant relies onUnited States v. Lugo , 978 F.2d 631 (10th Cir. 1992), where we considered an inventory search duri ng which an officer bent back a car stereo speaker cover to look inside a do or panel. We found the search unlawful, stating that “[a]lthough the permissible scope of an inventory search has not been well-defined, searching behind the door pa nel of a vehicle does not qualify as ‘standard police procedure,’ and does no t serve the purpose of ‘protecting the car and its contents’ under any nor mal construction of those terms
. . . .” Id. at 637 (quoting Opperman , 428 U.S. at 372, 373) (footnote omitted). Lugo is distinguishable, however, because here we have a standard police procedure (of opening locked trunks), and we have p reviously held that searches of locked car trunks are justified as proper invent ory searches. Martin , 566 F.2d at 1144-45.) On the other hand, Martin itself is distinguishable from this case because the locked trunk was opened with the owner’ s key. Thus, we have no-12-

binding authority regarding the propriety of breaki ng open a locked trunk to perform an inventory search in accordance with stan dard procedures for the law enforcement agency performing the search. In our view, the fact that the officers break into the trunk does not in itself render the inventory search unconstitutional. We s ee no reason to distinguish the passenger compartment from the trunk in this regard . And we note that in Opperman itself—the leading Supreme Court decision on inven tory searches—the officers lacked a key to enter the locked passengercompartment. Indeed, the South Dakota Supreme Court, whose decision was revi ewed in Opperman , described the entry of Opperman’s car in a manner c onsistent with the stipulated finding in this case that the “officers[’] procedur e . . . would have been to break into the trunk.” District Ct. Order on Remand at 1 . The South Dakota court wrote: “The police officer ordered the tow truck op erator to break into the vehicle , which he succeeded in doing by unlocking the doorwith a tool.” State v. Opperman , 228 N.W.2d 152, 153 (S.D. 1975) (emphasis added). Thus, we decline to hold that an inventory search of a motorvehicle cannot include breaking into the trunk. That is not to say, however, that police officers h ave free rein to enter the trunk as they wish. “Excessive or unnecessary destruction of property” can render police conduct unreasonable under the Fourth Amendm ent. United States v.-13-

Ramirez , 523 U.S. 65, 71 (1998) (but holding that when off icers have reasonable suspicion justifying a no-knock entry, a heightenedstandard of suspicion is not imposed just because the entry requires destructionof property). Accordingly, we would expect officers opening locked trunks ordinar ily to use master keys or similar tools to gain entry. In this case, absent any evidence that the inventorying officers would have engaged in “[e]xcessive or unne cessary destruction of property,” we hold that the inevitable inventory se arch would have been lawful.
III. Conclusion For the above reasons, we conclude that the evidenc e in Defendant’s car would inevitably have been discovered in the course of a lawful inventory search. We AFFIRM the judgment below.