NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0651n.06 No. 10-1978 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. DONALD LILLY, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ON AP PEAL F ROM THE UNITED STA T ES DISTRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: G IBBO NS, ROGERS, and COO K, C ircuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Following a traff ic stop, defe ndant-a

ppellant Donald L illy was char g ed wi t h possession with intent to distribute marijuana , in violation of 21 U.S.C. § 841(a) (1). L illy was convicted by a jury and sentenc ed to thirty months’ imprisonment, to be serve d consec utively to his thirty -month sentenc e for a violati o n o f s u p er vised rele ase. He appea ls a district court order denying his motion to suppress evidenc e seized from his vehicle. For the re asons that follow, we aff irm. I

. On the morning of Marc h 4, 2009, during the course of his routine patrol duty in Mt. Morris Township, Michig an, Offic er Michae l Vea ch of the Mt. M o rr i s T ownship Police Depa rtment observe d Donald L illy driving s o u t hbound on Nef f Road. Offic er Vea ch, who was driving northbound, noticed that L illy was not wea ring a seatbe lt and that t h e wi n d shield of L illy ’s 1995No. 10-1978

United States v. Lilly Chevrolet Suburban was cra cked. Having observe d these two traff ic v iolations, Offic er Vea ch turned his patrol car around, followed L illy ’s vehicle for sever al blocks, and signa led for L illy to stop by activating his siren and overhe ad lights. The stop occur red in the lefthand lane on Detroit Street,

a four- lane road without a shoulder lane. Upon running L illy ’s license plate number throug h the L aw Enforc ement I nformation Netw o rk (“L EI N”) , Offic er Vea ch lear

ned that the Chevrolet Suburban

was reg istered to J ohnnie Br own of Romulus, Michig an, a city approximately 70 to 80 miles awa y from Mt. Morris Township. Offic er Vea ch approa ched the driver’ s-side window. He explained that he had stopped L illy for the cra cked windshield and seatbe lt violations and re q u es t ed L illy ’s license, reg istration, and proof of insurance

. He lea rned tha t L illy

resided at the same addre ss a s Br own, L illy ’s mother. A L EI N chec k of L illy ’s name reve aled two outstanding arr est war rants in Gene see County for unpaid child support. Offic er Vea ch then called for assistance , and his partne r, Offic er Clay Hite, responde d. The office rs asked L illy to step outside of the vehicle, informed L illy that he was under

arr est for the outstanding war rants, handcuf

fed him, and place d him in the backse at of Offic er Vea ch’s pa trol car

. After L illy , the sole occ upant of the Chevrolet Suburban, had been place d under arr est, the office rs deter

mined that the vehicle should be towed and impounded in acc ordanc e with the police depar tment’s routine proc edure

. Offic er Vea ch testified that, be fore impounding a ve hicle, police depar tment proce dure require s office rs to conduct a preliminary inventory chec k in order to protec t the vehicle’ s proper

ty from theft and to protec t office rs and the impoundment company fr om alleg ations of t heft. Upon entering L illy ’s car, Officer Vea ch detected a strong odor of marijuana -2-No. 10-1978

United States v. Lilly and found two duffe l bag s behind the driver’ s seat. One duffe l bag contained two zip-lock bag s of marijuana , eac h weig hing approximately one pound. The other duffe l bag contained t wo ro l l s of cash totaling $10,067. Offic er Vea ch also found a g arba ge b ag co ntaining 27 zip-lock bag s of marijuana , weig hing approximately 27 pounds, behind the second- row seats. Following the inventory sear ch, the marijuana and cash wer e seized from L illy ’s car , which was then impounded. I I

. On J une 17, 2009, a fede ral g rand jury returne d an indictment char g ing L illy with one count

o f possession with intent to distribute marijuana , in violation of 21 U.S.C. § 841(a) (1)

. T h e g overnme nt filed an information on Aug ust 3, 2009, pursuant to 21 U.S.C. § 851(a) , in which it notified the court that L illy ’s prior felony drug convictions for the distribution of coca ine and coca ine base rende red him subject to a maxi mum sentenc e of ten y ear s’ imprisonment. On Aug ust 13, 2009, L il l y moved t o suppress “any and all evidenc e seiz ed from [hi s] person or vehicle” on the ground that the office rs’ war

rantless sear ch of his Chevrolet Suburban violated his rig hts under the Four th Amendment of the United States Constit ution. After the g overnme nt filed its response , the district
court held a two-day evidentiar y hear ing on September 28 and October 16, 2009, conce rning L illy ’s motion to s uppress e vidence

. At the suppression hear ing, Offic er Vea ch testified as to the police depar tment’s proce dures for impounding vehicles. He stated th at i t wa s “r outine policy ” to impound a car when the sole occupa nt had been arr ested; that a “vehic le [was] never left

. . . on the side of the road or in a parking lot

. . . due to liability issues”; and that an inventory ty pically was conducte d out of liability and theft

conce rns. He further stated that impoundment was require d in L illy ’s case beca use L illy ’s car was -3-No. 10-1978

United States v. Lilly parke d illega lly in the lefthand lane of a shoulderless, four- lane road and that parking in a traff ic lane “would be a road hazard.” Although defe nse counsel questioned the leg ality of parking on Detroit Street, stating that “ther e’s no indication that [som eone] cannot park there ,” Of fi ce r Veach maintained that p arking was impermissible beca use the vehicle would “be direc tly in a lane of traff ic,” a s there w as “no shoulder there or any

wher e to par

k a vehic le.” On cr oss-examination, Office r Vea ch testified that his patrol car had been equipped with a

came ra that rec orded L illy ’s arrest “from the t ime [he] stopped [L illy ] to th e t ime the vehicle was impounded.” Offic er V eac h stated that he submitted the tape to Deputy Chief Denny Van Alstein in acc ordanc e with depar

tment policy and that he “ha[d] no idea” whether the deputy chief still had the tape. On re- direc t examination, howeve r, Offic er Vea ch clar ified that the Marc h 4 tape was no longe r available; the t apes ty pically are re- circ ulated af ter 30 da y s, and he “ believed” the tape ha d been rec orded over. On re- cross-e x amination, Offic er Vea ch stated that he had spoken with Deputy Chief Van Alstein, who confirme d that the tape had not be en prese rved. Offic er Vea ch offe red no explanation as to why

he initially

stated that he w as unce rtain whe ther the ta pe wa s available

. L illy also testified at the suppression hear ing. He maintained that he ha d been w ear ing his seatbe lt at all times o n M ar ch 4 , 2 0 09, and that he “alwa y s dr[o] ve with [hi s] seatbe lt on.” L illy stated t hat, after being place d in a holding c ell in the Mt. Morris Township Poli ce Depar tment, he hear d a conver sation betwee n two uniden t i fi ed p ersons. Acc ording to L illy , one person asked to revie w t h e tape of L illy ’s arrest and, afte r a period of silence, alleg edly stated t hat L illy “did have [] his seatbelt [on] .”

-4-No. 10-1978

United States v. Lilly After the hear ing, on Dec ember 7, 2009, a mag istrate judge issued a repor t and

rec omme n d at i on denying L illy ’s motion to suppress on the g round that the office rs conducte d a lawful inventory sear ch of the vehicle. The mag istrate judge noted that the police depa rt m en t ’s policy permits impoundment wher e vehicles (1) are traff ic hazards, (2) are abandone d, or (3) require p rot ection from vandalism and theft, and that L illy ’s vehicle satisfied all three require ments. On Dec ember 21, 2009, the district court denied L illy ’s nin e o b j ec t i o n s and adopted the mag istrate judge ’s re port and re commendation in its entirety

. On Marc h 16, 2010, a jury convicted L illy of one count of possession with intent to distribute marijuana

. On J uly 16, 2010, the district court sentenc ed L illy to thirty months of imprisonment and four y ear s of supervised rele ase, to be serve d consec utively to his thirty -month sentenc e in a separ ate

case for violating the terms of his supervised rele ase. See United States v. Lill y , 4:02-cr- 50047. The district court ente red its judg ment on J uly 27, 2010, and L illy

timely appea led. I I I

. L illy contends that the district court err ed in deny ing his motion to suppress evidenc e seized during the inventory sear ch of his vehic le. He argues that Offic er Vea ch contravened the police depar tment’ s policy g overning inventory sear ches and that the sear ch was conducte d for investigatory purposes. I n revie wing the denial of a motion to suppress evidenc e, we revie w finding s of fac t for clea

r err or and leg al conclusions de novo . United States v. Dillard , 438 F.3d 675, 680 (6th Cir. 2006). “When the district c ourt has denie d the motion to suppress, we review all evidenc e in

a light most favor able to the Gover nment.” United States v. Galloway , 316 F.3d 624, 628 (6th Cir. 2003). -5-No. 10-1978

United States v. Lilly

I V. The Four th Amendment prohibits wa r r a ntless sear ches and seizures. U.S. Const. amend. I V. Howeve r, “bec ause the ultimate touchstone of the Four th Amendment is rea sonablene ss, the war rant require ment i s s u bject to cer tain exceptions.” Brigham City, Utah v. Stuart , 547 U.S. 398, 403 (2006) (interna l quotation marks omitted). The Supreme Court has long held that a valid inventory

sear ch of a vehicle conducte d without a war rant does not violate the Four th Amendment. Colorado v. Bertine , 479 U.S. 367, 37 1

– 7 4 (1 9 8 7 ); South Dakota v. Opperman , 428 U.S. 364, 372 (1976). “I nventory sear ches serve to pr otect an owner ’s proper ty while it is in t he custody of the police , to insure ag ainst claims of lost, stolen, or vandalized proper ty , and to g uard the police from dang er.” United St ates v. Smith , 510 F.3d 641, 650–51 (6th Cir. 2007) (internal quotation marks omi tted). I n order to be valid, an inventory sear ch mu s t be conducte d “ac cording to standard police proce dures” and may not be undertaken “for purposes of investigation.” United States v. Lumpkin , 159 F.3d 983, 987 (citing Florida v. W ells , 4 9 5 U.S

. 1, 5 (1990)) ; Smith , 510 F.3d at 651; accord United States v. Tackett , 486 F.3d 230, 232 (6th Cir. 2007) (noting that “off icer s mu s t co n d u ct a permissible inventory s earch in g ood faith, not as a prete x t for criminal investigation”). And, we have rec og nized that a war rantless inv entory sear ch may be conducte d only wher e police have “lawf ully tak[en] custody of a vehicle.” Smith , 510 F.3d at 651 (quoting Lumpkin , 159 F.3d at 987). I n this case , t he Mt. Morris Township Police Depa rtment has issued a policy g overning vehicle impoundment and inve ntory sear ches. This policy

provides:

-6-No. 10-1978

United States v. Lilly G. I NVENTO RY SEARCHES 1. I nventory sear ches are exceptions to the sear ch war rant require ment, but are only permitted for

the following rea sons:

a. To protec t the owner ’s prope rty

. b. To protec t office rs from f alse c laims.

c. To protec t office rs from the da ng er of vehicle c ontents. 2. Offic ers may not just routinely impound and invent ory any vehicle. The rea son for e ach impoundment should be c lear ly stated in ea ch re port. 3. Vehicle inventory s ea rc h es m u s t b e co n d u ct ed pursuant to depar tment proce dure reg arding the impounding of vehicles. Vehicle s ma y b e impounded for one of the following rea sons:

a. Traf

fic ha zard b. Abandone d vehicle

c. Protection of the ve hicle fr om vandalism or theft L illy challeng es the validity of the inventory sear ch of his Chevr olet Suburban, contending that Offic er Vea ch violated the police depar t m ent’s standard proce dure in two way s. First, L illy arg ues that Offic er Vea ch misstated the police depar tment’s impoundment policy by “testif[ y ing] that it was the routine policy of his depar tment to impound car s any time the only occupa nt has been

arr ested.” Second, he argues that Offic er Vea ch failed to sta te the rea sons f

or impounding L illy ’s

car i n h i s re p o rt

. Ba sed upon these alleg ed err ors, L illy maintains that “the sear ch here was conducte d for investigation, not inventory [,] ” and was there fore impermissible under t h e Fourth Amendment.

-7-No. 10-1978

United States v. Lilly To support his first argument that Offic er Vea ch misstated the police depa rt m en t’s impoundment and inventory policy , L illy relies upon ¶ G.2, which provides that “[o] ffice rs may not just routinely

impound and inventory

any vehicle.” L illy notes that, in contra st to the lang uag e of ¶ G.2, Offic er Vea ch testified that the police depar tment routinely impounds vehicles afte r the arr est

o f the vehicle’ s sole occupa nt. And, L illy also claims that Offic er Vea ch’s “af ter-the -fa ct j u s t i fi ca t i o ns . . . do not hold up either” beca use the vehicle was not a traff ic hazard, was n o t abandone d, and did not require protec tion from vandalism or theft. The d i s t ri ct court, howeve r, adopted the mag istrate judg e’s r eport a nd rec ommendation and rejecte d the arg ument that Offic er Vea ch contravened the police depar tment’s impoundment proce dure. The court held that L illy ’s vehicle “qualifie d [for impoundment] under all three prer equisites for towing as laid out by the Mt. Morris Police Depa

rtment.” Be cause we revie w the district court’s fac tual finding s for clea r err or, Dillard , 438 F.3d at 680, in order to preva il, L illy must establish that the district court clea rly err ed in concluding that Offic er Vea ch’s testimony s u p p orted at least one g round for impoundment, as stated in ¶ G.3 of

the police de partment’s policy . We conclude that L illy has not done so. L illy contends here , as befor e the district court, that his car was not a traff ic hazard beca

use the “unre butted defe nse evidenc e s h o we d t h at there wer e not any ‘no parking ’ restric tions in that immediate are a.” The district c ourt reje cted this a rg ument, as do we. The mag istrate judge , in his repor t and rec ommendation, acc epted Offic er Vea ch’s testimony that L illy ’s v ehicle was a traff ic hazard beca

use it was parke d in a traff i c l an e o n Detroit Street, a shouldlerless, four- lane road. I ndeed, Offic er Vea ch stated that, althoug h he could not rec all whether the are a was marke d with “no parking ” restric tions, “[t] here ’s no shoulder [on Detroit Street] or any wher e to park a vehicle. You’d -8-No. 10-1978

United States v. Lilly be parked directly in one lane of t raf fic.” And, t he dis trict court, i n rejecting L illy ’s obj ections t o the mag istrate judge ’s repor t, likewise stated that, even if parking was permissible on Detroit Street, “this fac t does nothing to rebut Offic er Vea ch’s testimony

. . . that the vehicle was a traff ic hazard.” I n his appellate brief, L illy has provided no support for his contention that a vehicle cannot be a traff ic hazard if parke d in an are a without “no parking ” signs, and we are not awa re of any case law that bolsters this argument. Thus, L illy has not establi s h ed that the district court clea rly err ed in finding that Offic er Vea ch complied with standard proce dure when Offic er Vea ch deter mined that L illy ’s vehicle, which was parke d in a traff ic lane, was a traff

ic hazard and impounded it. See, e.g. , United States v. Brown , 91 F.3d 144, 1996 WL 370140, at *2 (6th Cir. 1996) (unp u b l i s h ed table d ec i s i on) (noting that an office r’s inventory sear ch complied with standard proce dure when t h e office r impounded a ve hicle that “w as stopped in a tra ffic la ne and thus not leg ally

parke d”). Nor has L illy established that Offic er Vea c h c o n tr a v ened ¶ G.2, which prohibits office rs from “just routinely

impound[ ing] and inventory [i ng ] any vehicle.” When asked on direc t e x amination whether it was “routine policy for [hi s] depar tment to impound car s when

. . . the only occupa nt

. . . [had] been arr ested,” Offic er Vea ch r e p lied, “Ye s.” But, notwithstanding this appar ent misstatement of the police depar

tment’s impoundment policy , Offic er Vea ch’s testimony at the suppression hear ing makes clea

r that he impounded L illy ’s vehicle for rea sons permitted under ¶ G.3. On crossexamination, Offic er Vea ch testified that he could not leave L illy ’s vehicle on Detroit Street beca use

o f l i ab i l i ty conce rns and beca use it was parke d in a lane of traff ic on a busy thoroug hfar e. And, when asked on re- cross-e x amination whether someone could park “on that are a of [Detroit Street],” Offic er Vea ch replied, “No

. . . it would be a ro ad hazard.” Thus, contra ry to L illy ’s argument, -9-No. 10-1978

United States v. Lilly Officer Vea ch’s testimony supports the district court’s conclusion that L illy ’s vehic l e wa s impounded as a tra ffic ha zard, in acc ordanc e with ¶ G.3 of the police depa rtment’s impoundment policy

. 1 L illy ’s second argument also lacks merit. He claims that Offic er Vea ch failed to state the

rea son for impounding L illy ’s vehicle in his repor t, in violation of ¶ G.2, which mandates that “[t] he

rea son for eac h impoundment should be clea rly stated in eac h repor

t.” Howeve r, as the g overnme nt notes in its response , L illy did not object to the m ag istrate judge’ s repor t and recommenda tion on this basis. Rather, in his eig hth objection, which addre ssed Offic er Vea ch’s alleg ed failure to abide by the po l i ce depar

tment’s impoundment policy , L illy argued that “[t] he g overnme nt has not established that standardized proce dures wer e followed; rathe r, Offic er Vea ch followed hi s o wn p o l i cy o f i m p ounding a vehicle any time the only occupa

nt is arr ested.” As the lang uag e of this objection makes clea

r, L illy did not raise the issue of whether Offic er Vea ch violated the police depar tment’s standard pr ocedur e by failing to articulate a re ason for impounding L illy ’s ca

r. I n this circ uit, “a party must file objections to t h e m agi strate judge ’s repor t and

rec ommendation with the district court within the time permitted, or else waive the rig ht to appea l.” Vanwinkle v. United States , 645 F.3d 365, 371 (6th Cir. 2011) (citing United States v. W alters , 638

Having conclude d that the district court did not clea rly err in cre dit i n g Offic er Vea ch’s 1 testimony that L illy ’s vehic l e wa s a t raffic hazard, we need not addre ss whether the district court err ed in deter

mining that L illy ’s vehicle was abandone d and require d protec tion from vandalism or theft. I ndeed, the police depar tment’s policy on impoundment and inventory sear ches provides that “[v] ehicles may be impounded for one of the following rea sons,” including traff ic hazards. I t is there fore unnece ssary to decide whether L illy ’s vehicle met all three rea sons for impoundment under ¶ G.3. -10-No. 10-1978

United States v. Lilly F.2d 947, 949–50 (6th Cir. 1981)). “[B]y prec luding appellate revie w of any issue not contained in objectio n s t o a m ag istrate judge ’s repor t, this rule of prese rvation preve nts a litigant from sandbag g ing the district judg e by failing to obje ct and then appea ling.” Peoples v. Hoove r , 377 F. App’x 461, 463 (6th Cir. 2010) (interna l quotation marks om i t t ed). Her e, beca use L illy did not object to the mag istrate’s repor t and rec ommendation on the g round that Offic er Vea ch failed to state his rea son for impounding L illy ’s car , L illy is fore closed from raising this argument on appea l. The district court prope rly

denied L illy ’s suppression motion. V. For the fore g oing r easons, we aff irm the judg ment of the district cour t.

-11-