2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2010

USA v. Mundy

Precedential or Non-Precedential: Precedential

Docket No. 07-4112

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http://digitalcommons.law.villanova.edu/thirdcircuit_2010/517
 The Honorable Thomas Selby Ellis III, Senior District *

Judge for the United States District Court for the Eastern District

of Virginia, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4112

_____________

UNITED STATES OF AMERICA

 v.

ERIC WAYNE MUNDY,

a/k/a

BOOB,

a/k/a

JAMES FRAZIER

 Eric Wayne Mundy,

 Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Criminal No. 06-cr-00540-1)

District Judge: Honorable J. Curtis Joyner

Argued January 8, 2009

Before: CHAGARES, HARDIMAN, Circuit Judges, and

ELLIS , District Judge. *

____________

(Filed: September 14, 2010)
SARAH S. GANNETT (argued)

Assistant Federal Defender

DAVID L. MCCOLGIN

Assistant Federal Defender

Supervising Appellate Attorney

MAUREEN KEARNEY ROWLEY

Chief Federal Defender

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 540 West - Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellant

PATRICK L. MEEHAN

United States Attorney

ROBERT A. ZAUZMER

FRANCIS C. BARBIERI, JR., ESQ.

MARY KAY COSTELLO, ESQ. (argued)

Assistant United States Attorney

Chief of Appeals

Assistant United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

____________

OPINION

____________

CHAGARES, Circuit Judge.

Eric Wayne Mundy appeals his conviction and sentence for

possession of 500 grams or more of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and for

possession with intent to distribute 500 grams or more of cocaine

in a protected area, in violation of 21 U.S.C. § 860(a). Mundy

contends that the District Court erroneously admitted evidence that

was seized during an inventory search of his car, in violation of the

Fourth Amendment. He also challenges the District Court’s

application of a United States Sentencing Guidelines (“U.S.S.G.”)
3

enhancement for possession of a controlled substance in a

protected location with intent to distribute. We will affirm.

I.

On August 3, 2004, Mundy was stopped by two

Philadelphia Highway Patrol officers, James Chabot and George

Soto, for making a right turn without using a turn signal and for

excessively dark window tinting, in apparent violation of the motor

vehicle code. The officers stopped Mundy at 18th Street and

Hunting Park Avenue in Philadelphia, Pennsylvania, less than

1,000 feet from Gratz High School. The officers approached the

vehicle and directed Mundy to lower the driver’s side window.

Mundy was unable to do so, and the officers instructed him to open

his door instead, which he did. Officer Chabot asked Mundy for

his license, insurance card, and registration. After several minutes

of searching, he was unable to locate documentation for the

vehicle. The officers then took steps to determine whether the

vehicle was registered. First, the officers ran a check on the

vehicle’s public Vehicle Identification Number, and a check of the

license plate number, neither of which produced a record of an

owner. The officers then contacted the Bureau of Motor Vehicles

(the “BMV”). The BMV reported no registration information for

Mundy’s vehicle. The officers directed Mundy to exit his vehicle,

and they placed him in their patrol car before radioing for a tow

truck.

Officer Chabot began to search the interior of the vehicle

and, using a key Mundy provided, opened the locked trunk. The

only items in the trunk were a tool kit and a gray plastic bag

containing a closed shoebox. Officer Chabot removed the shoebox

from the plastic bag and proceeded to open it. Inside, he found a

brown paper lunch bag and two clear plastic zip-locked bags filled

with a substance that appeared to be cocaine. Officer Chabot

opened the paper lunch bag and found four more clear plastic ziplocked bags, also containing a substance that appeared to be

cocaine. Officer Chabot replaced the items, closed the trunk of the

vehicle, placed Mundy under arrest, and recovered $1,107 in cash

from his person. The officers then notified narcotics agents. They

did not complete a Towing Report listing the items found during
 Mundy does not challenge the legality of the stop on 1

appeal. Mundy Br. at 10-11.

 

 Section 841(a) offenses are lesser-included offenses of § 2

860(a) offenses. See United States v. Jackson, 443 F.3d 293, 294-

4

the search. 

Officer Trappler of the Narcotics Field Unit was assigned to

the investigation. He obtained and executed a search and seizure

warrant for Mundy’s vehicle and recovered from the trunk, among

other things, six clear plastic bags containing a substance suspected

to be cocaine. Officer Trappler also recovered from the interior of

the vehicle two plastic jars, a small amount of marijuana, and

documents. The Philadelphia Chemical Laboratory tested the

substance found in the clear plastic bags and confirmed that the

substance was cocaine. The cocaine weighed 746.9 grams.

Mundy was charged with one count of possession with

intent to distribute 500 grams or more of cocaine, 21 U.S.C. §

841(a)(1), (b)(1)(B), and one count of possession with intent to

distribute cocaine within 1,000 feet of a school zone, 21 U.S.C. §

860(a). Mundy moved to suppress the evidence found during the

search, arguing that both the stop and the ensuing search violated

his rights under the Fourth Amendment. At the hearing on the 1

motion to suppress, Officer Chabot testified that he found the

cocaine during a routine inventory search of Mundy’s car.

Philadelphia police policy provides that before a vehicle is towed,

its contents must be inventoried in order to protect the police from

claims of missing property and damage. Mundy argued, in relevant

part, that the officers did not have probable cause to search the

vehicle, and that the inventory search policy did not sufficiently

regulate the officers’ discretion with respect to closed containers

found in the vehicle. The District Court denied the motion to

suppress, concluding that the search was conducted pursuant to a

valid inventory search in accordance with departmental policy.

Mundy’s case was tried to a jury beginning on July 17, 2007

and, on July 19, 2007, the jury returned guilty verdicts against

Mundy on both counts. On October 9, 2007, the District Court

sentenced Mundy on Count Two, the § 860(a) violation, to 2
95 (3d Cir. 2006).

 The District Court had jurisdiction over the underlying 3

criminal prosecution pursuant to 18 U.S.C. § 3231. This Court has

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

5

seventy-eight months in prison, eight years of supervised release,

a fine of $10,000, and a special assessment. Mundy filed a timely

notice of appeal. 3

II.

Mundy contends that the District Court erred in admitting

into evidence the cocaine seized during a warrantless inventory

search of his car. In reviewing the denial of a motion to suppress

alleging violations of the Fourth Amendment, we review factual

findings for clear error and exercise plenary review over the

District Court’s legal conclusions. United States v. Williams, 417

F.3d 373, 376 (3d Cir. 2005). “Because the basis for denial of the

motion was a determination that the search that produced the

evidence was valid, we must review the propriety of the

warrantless search that led to the discovery of incriminating

evidence.” Id.

A.

The Supreme Court has recognized that “[t]he touchstone of

the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500

U.S. 248, 250 (1991). Warrantless searches and seizures are

presumptively unreasonable and are therefore prohibited under the

Fourth Amendment, unless an exception applies. California v.

Acevedo, 500 U.S. 565, 580 (1991) (“It remains a cardinal principle

that searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the

Fourth Amendment – subject only to a few specifically established

and well-delineated exceptions.” (quotation marks omitted)); see

also Katz v. United States, 389 U.S. 347, 357 (1967). “Such

exceptions are based on the Supreme Court’s determination that a

particular search is reasonable, that is, that the government’s

legitimate interests in the search outweigh the individual’s legitimate
6

expectation of privacy in the object of the search.” United States v.

Salmon, 944 F.2d 1106, 1120 (3d Cir. 1991).

The Supreme Court has determined that one exception to the

warrant requirement is for inventory searches of lawfully seized

automobiles. Colorado v. Bertine, 479 U.S. 367, 371 (1987); Illinois

v. Lafayette, 462 U.S. 640, 643 (1983) (“[T]he inventory search

constitutes a well-defined exception to the warrant requirement.”);

South Dakota v. Opperman, 428 U.S. 364, 372 (1976)

(“[I]nventories pursuant to standard police procedures are

reasonable.”). Inventory procedures serve three “strong

governmental interests”: “[1] to protect an owner’s property while

it is in the custody of the police, [2] to insure against claims of lost,

stolen, or vandalized property, and [3] to guard the police from

danger.” Bertine, 479 U.S. at 372.

Lawful inventory searches must be “conducted according to

standardized criteria” or established routine, consistent with the

purpose of a non-investigative search. Id. at 374 n.6. This

requirement “tend[s] to ensure that the intrusion w[ill] be limited in

scope to the extent necessary to carry out the caretaking function.”

Opperman, 428 U.S. at 375. The criteria or routine must limit an

officer’s discretion in two ways: first, as to whether to search the

vehicle, and second, as to the scope of an inventory search. Salmon,

944 F.2d at 1120-21 (citing Florida v. Wells, 495 U.S. 1, 4-5 (1990);

Bertine, 479 U.S. at 374 & n.6, 375-76). These limitations ensure

that officers performing these caretaking functions are “‘not []

allowed so much latitude that inventory searches are turned into a

purposeful and general means of discovering evidence of a crime.’”

Id. at 1120 (quoting Wells, 495 U.S. at 4 (quotation marks omitted));

see also Wells, 495 U.S. at 4 (“[A]n inventory search must not be a

ruse for a general rummaging in order to discover incriminating

evidence.”). 

Mundy argues that the cocaine seized from the shoebox in the

trunk of his car should have been suppressed because it was “the

fruit of an illegal inventory search.” Mundy Br. at 13-14. In

particular, Mundy contends that although the Philadelphia Police

Department did have a policy on inventory searches, the policy did
7

not address explicitly how closed containers were to be treated.

Several decisions set the background for our analysis of this issue.

In Colorado v. Bertine, the Supreme Court considered

whether, and under what circumstances, police may inventory the

contents of closed containers found in vehicles lawfully taken into

their custody. During the inventory search of Bertine’s impounded

vehicle, an investigating officer opened a closed backpack, a nylon

bag within the backpack, and closed metal canisters located inside

the nylon bag. 479 U.S. at 369. The officer found controlled

substances, cocaine paraphernalia, and a large amount of cash in the

canisters. Id. Reversing suppression of this evidence, the Court

acknowledged that “reasonable police regulations relating to

inventory procedures administered in good faith satisfy the Fourth

Amendment.” Id. at 374. The Court rejected the suggestion that

police, before inventorying a container, “weigh the strength of the

individual’s privacy interest in the container against the possibility

that the container might serve as a repository for dangerous or

valuable items.” Id. Rather, the Court observed, “[a] single familiar

standard is essential to guide police officers, who have only limited

time and expertise to reflect on and balance the social and individual

interests involved in the circumstances they confront.” Id. at 375

(quotation marks omitted, alteration in original). 

The Bertine Court added that nothing in its jurisprudence

“prohibits the exercise of police discretion so long as that discretion

is exercised according to standard criteria and on the basis of

something other than suspicion of criminal activity.” Id. at 375.

The Court held that there was no showing that the inventory search

was “for the sole purpose of investigation.” Id. at 372. Further, the

Court noted that standard procedures governed the inventory search

and that those procedures “mandated the opening of closed

containers and the listing of their contents.” Id. at 374 n.6.

Accordingly, the Court held that the Fourth Amendment did not

prohibit use of the evidence found during the inventory search of

Bertine’s vehicle.

In Florida v. Wells, the Supreme Court addressed how much

discretion law enforcement officers may be afforded to open closed

containers under inventory search policies for Fourth Amendment
8

purposes. The Court made clear that while law enforcement officers

must not have “uncanalized discretion” in conducting inventory

searches, “there is no reason to insist that they be conducted in a

totally mechanical ‘all or nothing’ fashion.” 495 U.S. at 4. Noting

the important purposes of inventory searches, the Court recognized

that law enforcement officers “may be allowed sufficient latitude to

determine whether a particular container should or should not be

opened in light of the nature of the search and the characteristics of

the container itself.” Id. The Court further explained that “while

policies of opening all or no containers are unquestionably

permissible, it would be equally permissible, for example, to allow

the opening of closed containers whose contents officers determine

they are unable to ascertain from examining the containers’

exteriors.” Id. Concluding, the Court observed that “[t]he

allowance of the exercise of judgment based on concerns related to

the purposes of an inventory search does not violate the Fourth

Amendment.” Id. Under the facts presented, the Wells Court held

that marijuana discovered after police forced open a locked suitcase

located in the trunk of an impounded vehicle was properly

suppressed because the police department had “no policy whatever

with respect to the opening of closed containers encountered during

an inventory search.” Id. at 4-5. 

Following Bertine and Wells, this Court in United States v.

Salmon considered whether a weapon found in a gym bag in the

trunk of a vehicle pursuant to a purported inventory search should

be suppressed. 944 F.2d at 1118. We began our analysis of the

issue by recognizing that “pre-existing criteria or routine must limit

an officer’s discretion regarding the scope of an inventory search,

particularly with respect to the treatment of closed containers.”

Salmon, 944 F.2d at 1120 (emphasis in original). We noted that

although there was some evidence that the local government had a

policy that all vehicles seized for forfeiture (as in Bertine) were

searched, we concluded that “as in Wells, the government did not

point to any standardized criteria or routine governing the scope of

inventory searches.” Id. at 1121 (emphasis in original). As a result

of “the lack of evidence of any criteria or established routine

regarding the scope of an inventory search,” we concluded that the

officers had exercised “impermissible discretion regarding the scope
 The PPD Live Stop Policy provides, in relevant part: 4

[T]he investigating officer[] shall . . . :

1. Have the operator and occupants exit the vehicle and remain on

location . . . .

2. Complete the Towing Report by conducting a vehicle inventory

describing any damage and/or missing equipment, personal

property of value left in the vehicle by the operator/occupants[,]

including the trunk area if accessible.

NOTE: No locked areas, including the trunk area, will be

forced open while conducting an inventory.

App. 46.

9

of the inventory,” and we accordingly held that the inventory search

was unlawful. Id. 

B.

 During a lawful stop based on suspected traffic violations,

Philadelphia Highway Patrol officers determined that Mundy was in

violation of § 1301(a) of the Pennsylvania vehicle code, which

prohibits driving an unregistered vehicle. 75 Pa. Cons. Stat. §

1301(a)(1). Under Pennsylvania law, if an officer determines that

a driver is operating a vehicle in violation of, inter alia, § 1301(a),

that vehicle may be impounded. Id. § 6309.2 The Philadelphia

Police Department has issued guidelines – known as Live Stop (the

“PPD Live Stop Policy”) – that implement the impoundment

provisions of the Pennsylvania Vehicle Code, § 6309.2. Appendix

(“App.”) 44. Once it is determined that the driver is in violation of 4

§ 6309.2, the PPD Live Stop Policy directs an investigating officer

to inventory the contents of the vehicle taken into custody. App. 45-

46. 

Mundy does not challenge the investigating officers’ decision
 “The existence of . . . a valid [standardized inventory 5

search] procedure may be proven by reference to either written

rules and regulations or testimony regarding standard practices.”

United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994) (citations

omitted); see also United States v. Como, 53 F.3d 87, 92 (5th Cir.

1995) (upholding inventory search in the absence of a written

policy, explaining that “testimony regarding reliance on

standardized procedures is sufficient”). Here, both the written PPD

Live Stop Policy and Officer Chabot’s testimony established the

standard departmental procedure regulating inventory searches. 

10

to conduct an inventory search following the seizure of his vehicle.

Instead, he argues that the officers exceeded their authority when

they searched closed containers located in the trunk of the vehicle.

He asserts that this case hews closely to Salmon and Wells, claiming

that the PPD Live Stop Policy does not regulate inventory searches

of closed containers.

Officer Chabot testified at trial that he searched Mundy’s

vehicle for “valuable items” and other kinds of “personal effects”

before it was impounded, in accordance with the PPD Live Stop

Policy. App. 92. The terms of that policy require the investigating

officer to “[c]omplete the Towing Report by conducting a vehicle

inventory describing any . . . personal property of value left in the

vehicle by the operator/occupants[,] including the trunk area if

accessible.” App. 46. The PPD Live Stop Policy also limits the

scope of the inventory search, instructing that “[n]o locked areas,

including the trunk area, will be forced open while conducting an

inventory.” Id.5

Mundy contends that, because the PPD Live Stop Policy does

not specifically mention the opening of closed containers, officers

may not search closed containers found during a vehicle inventory

search. We disagree. Inventory searches are not “totally

mechanical” procedures. Wells, 495 U.S. at 4. Standardized criteria

or routine may adequately regulate the opening of closed containers

discovered during inventory searches without using the words

“closed container” or other equivalent terms. We decline to create

a rule of constitutional dimension that requires an inventory search

protocol to predict every conceivable scenario an officer may
 Accord United States v. Matthews, 591 F.3d 230, 238 (4th 6

Cir. 2009) (“[W]ithin the constraints of the [applicable] policy,

officers may exercise discretion in deciding whether or not to open

a particular container.”); United States v. Hall, 497 F.3d 846, 852

(8th Cir. 2007) (“That the Policy allows some discretion . . . does

not make the inventory search unconstitutional.”); United States v.

Tackett, 486 F.3d 230, 232 (6th Cir. 2007) (“[O]fficers may

exercise some judgment based on concerns related to the purpose

of an inventory search; for example, they may decide to open

particular containers if they cannot determine the contents.”

(quotation marks omitted)); United States v. Thompson, 29 F.3d

62, 65-66 (2d Cir. 1994) (“Although the [established inventory

search] procedure must not be a pretext ‘for a general rummaging

in order to discover incriminating evidence,’ it may allow the

searching officers sufficient discretion in deciding whether or not

to open a specific container.” (quoting Wells, 495 U.S. at 4));

United States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991) (“The

police department’s inventory procedures can allow an officer

‘latitude to determine whether a particular container should or

should not be opened in light of the nature of the search and

characteristics of the container itself.’” (quoting Wells, 495 U.S. at

11

happen upon while conducting an inventory search, and to provide

a formulaic directive for each and every one. Such a requirement

would not only prove unworkable, but would run contrary to the

letter and spirit of Bertine and Wells. See United States v. Andrews,

22 F.3d 1328, 1336 (5th Cir. 1994) (upholding inventory search

involving an officer’s reading of incriminating evidence inside a

notebook recovered pursuant to an inventory search, reasoning that

neither Bertine nor Wells “requires a law enforcement agency’s

inventory policy to address specifically the steps that an officer

should take upon encountering a closed container”). 

Instead, “reasonable police regulations relating to inventory

procedures,” Bertine, 479 U.S. at 374, mean that “[t]he policy or

practice” is “designed to produce an inventory,” Wells, 495 U.S. at

4, and that the criteria do not allow officers “so much latitude that

inventory searches are turned into ‘a purposeful and general means

of discovering evidence of a crime.’” Id. (quoting Bertine, 479 U.S.

at 376 (Blackmun, J., concurring)). Those principles are satisfied 6
1)); United States v. Judge, 864 F.2d 1144, 1145 (5th Cir. 1989)

(noting that “Bertine does not condemn all forms of police

discretion, but only ‘evidentiary’ discretion which is exercised on

the basis of suspicion of criminal activity”).

12

here. 

The PPD Live Stop Policy explicitly sets out its objectives,

namely, to protect the owner’s property and shield the officers from

claims of loss or damage. The Policy also sufficiently regulates the

scope of the search, directing investigating officers to search all

accessible areas of the vehicle (including the trunk), provided that

they are not forced open, to determine if they contain “any . . .

personal property of value,” or other effects. App. 46. A search of

unlocked containers that may hold such property or effects, as

happened here, falls comfortably within the PPD Live Stop Policy’s

general directive, and therefore does not violate the Fourth

Amendment. See Wells, 495 U.S. at 4.

Mundy’s reliance on Wells and Salmon is misplaced. In each

of those cases, the courts found that there was no standard policy or

procedure governing the scope of inventory searches. In Wells, the

closed container at issue was a locked suitcase that was forced open

at the direction of a state trooper, and there was “no policy whatever

with respect to the opening of closed containers.” 495 U.S. at 4.

The Court concluded that the search of the suitcase was unlawful,

explaining that officers may not be given total discretion to decide

whether to open a closed container found during an inventory

search. Id. at 4-5. Similarly, in Salmon, the complete absence of a

relevant inventory search protocol underscored our decision.

Indeed, we explained that the Government had failed to “point to

any standardized criteria or routine governing the scope of inventory

searches.” Salmon, 944 F.2d at 1121 (emphasis omitted). Wells and

Salmon, therefore, exemplify “a prime danger of insufficiently

regulated inventory searches: police may use the excuse of an

‘inventory search’ as a pretext for broad searches of vehicles and

their contents.” Wells, 495 U.S. at 5 (Brennan, J., concurring). 

In the present case, by contrast, the PPD Live Stop Policy

restricted Officer Chabot from forcing open the trunk or any other
13

locked areas of the vehicle. The Policy instructed him to inventory,

inter alia, “any . . . personal property of value left in the vehicle by

the operator/occupants[,] including the trunk area if accessible.”

App. 46. By specifically authorizing the search of the trunk “if

accessible,” and by forbidding any “locked areas, including the trunk

area,” from being “forced open,” the Policy: (1) authorized Officer

Chabot to inventory “any personal property of value” left in the

trunk once Mundy provided the keys to it; and (2) simultaneously

curtailed his authority to embark on a generalized search for

incidents of crime. Though the PPD Live Stop Policy does not

contain magic words relating specifically to closed containers, its

reference to “any . . . personal property of value” sufficiently

regulated the scope of a permissible inventory search, and therefore

authorized the opening of the shoebox in Mundy’s trunk to

determine if such property was contained therein. Officer Chabot

acted in accordance with standardized criteria; there is no evidence

that he exercised unbridled discretion in choosing to open the

unlocked container. 

Our sister courts of appeals have reviewed questions similar

to that posed here. In United States v. Wilson, 938 F.2d 785 (7th

Cir. 1991), the Court of Appeals for the Seventh Circuit held that the

inventory search policy governing the Illinois state police “clearly

establishe[d] the policy that closed containers can be opened,” id. at

790, even though the policy did not use the “buzz words ‘closed

container,’” id. at 789. The court held that the policy’s requirement

that the investigating officer examine and inventory the “contents”

of the vehicle, together with the direction to restrict the search to

areas where owners or operators would normally place personal

property, sufficiently limited the officers’ discretion. Id. at 790; see

also United States v. Richardson, 121 F.3d 1051, 1055-56 (7th Cir.

1997) (reaffirming the holding in Wilson).

In United States v. Thompson, 29 F.3d 62 (2d Cir. 1994), the

Court of Appeals for the Second Circuit considered facts that closely

parallel this case. There, the court reviewed an inventory search of

a locked briefcase (to which the defendant had provided the key)

recovered from an impounded vehicle. Id. at 64. At issue was

whether the applicable inventory search regulations provided
See also State v. Mesa, 717 N.E.2d 329, 334 (Ohio 1999) 7

(upholding an inventory search where departmental policy

“require[d] that ‘open compartments of the vehicle are to be

searched[,]’ and that ‘locked compartments shall not be opened,’”

and concluding that “[b]y its very terms, this language does not

prohibit officers from searching closed compartments[,]” but only

prohibits opening those “that are locked”). 

14

sufficiently standardized criteria to the officers conducting the

inventory search. Id. at 65. The regulations stated in pertinent part:

“A member of the Department who impounds any motor vehicle

shall inventory the contents of the vehicle and record the results. . .

. It is not necessary to enter locked portions of any vehicle to

conduct an inventory search when keys to enter are not available.”

Id. at 66 (emphases in original). The court rejected the argument

that police officers “used impermissible discretion in conducting the

inventory search because the regulations refer to ‘locked portions’

and do not specifically mention the term ‘closed containers.’” Id.

Citing Wilson, the court explained that “[t]he terms ‘contents’ and

‘locked portions’ in the regulations provide sufficient elucidation to

satisfy the constitutional requirements for an inventory search of a

closed container when keys are available.” Id.7

More recently, in United States v. Matthews, 591 F.3d 230

(4th Cir. 2009), an officer conducting an inventory search of an

impounded vehicle discovered, inter alia, a substantial quantity of

packaged cocaine in a closed suitcase recovered from the trunk. The

defendant challenged the inventory search on the basis that the

officer “could not have followed standardized criteria because the

Department’s policy does not specify how an officer should handle

closed containers.” Id. at 236. The Court of Appeals for the Fourth

Circuit cited as authority Wilson, Richardson, and Thompson, and

held that “[a] police department’s policy on inventory searches does

not have to specifically use the phrase ‘closed containers’ to permit

the search and seizure of such items.” Id. The court rejected the

defendant’s challenge to the inventory search, reasoning as follows:

Like the policies discussed in

Thompson, Wilson, and Richardson,

the Department’s policy, though not
15

explicitly using the phrase “closed

containers,” sufficiently regulates the

opening of such containers to provide

standardized criteria to justify Deputy

Clark’s search of Matthews’s bags.

That policy requires, in relevant part,

for “[a] complete inventory [to] be

taken on all impounded or confiscated

vehicles including the interior, glove

compartment and trunk.” Only by

opening all closed containers could a

police officer effectively comply with

this requirement for a “complete

inventory.” . . . 

The circumstances in this case represent

the typical situation in which the

necessity of an inventory search arises.

As the policy in question reflects, the

purpose of conducting the inventory

search is to protect the owner’s property

while in the custody of the police from

“loss or theft.” Only by performing a

full inventory of the car – which

includes opening closed containers –

could an officer identify all the

vehicle’s valuables and effectively

secure them. Accordingly, we agree

with the district court that because the

Department’s policy authorizes the

opening of c losed containers

encountered during an inventory search

and Deputy Clark adhered to that

policy, Deputy Clark’s search falls

within the inventory search exception

and thus does not violate the Fourth

Amendment. 
 Notably, the Matthews court distinguished our decision in 8

Salmon, emphasizing – as we have above – that there, “the law

enforcement agency had ‘no written policy regarding inventory

search procedures,’ much less one addressing closed containers.”

Matthews, 591 F.3d at 236 n.8 (quoting Salmon, 944 F.2d at 1121).

16

Id. at 237-38 (citations omitted).8

For the reasons we have articulated, we agree with these

courts. The inventory search protocols at issue in those cases are

constitutionally indistinguishable from the PPD Live Stop Policy

that Mundy challenges here. We hold that the Policy provided

sufficiently standardized criteria regulating the scope of a

permissible inventory search – including searches of closed

containers – and that Officer Chabot’s search adequately complied

with those criteria.

Mundy also arguesthat the officers’ reliance on the PPD Live

Stop Policy was a pretext for an investigatory search because the

officers did not complete a Towing Report and because the officers

believed that they would find narcotics in the vehicle. First, the

failure of the investigating officers to complete a Towing Report

does not demonstrate that the officers conducted the inventory

search as pretext or in bad faith. The record indicates that Officer

Trappler produced an inventory of items seized from the vehicle on

property receipts, including the narcotics, but that the officers did

not complete a Towing Report describing personal effects left in the

vehicle. App. 61. 

Although compliance with procedures “tends to ensure the

intrusion is limited to carrying out the government’s caretaking

function,” failure to follow through with standard procedures does

not necessarily render the search unreasonable. United States v.

Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998); see also Whren v.

United States, 517 U.S. 806, 816 (1996) (“[I]t is a long leap from the

proposition that following regular procedures is some evidence of

lack of pretext to the proposition that failure to follow regular

procedures proves (or is an operational substitute for) pretext.”

(emphasis in original)); United States v. Trullo, 790 F.2d 205, 206

(1st Cir. 1986) (“We will not hold that the officer’s failure,
17

technically, to follow the inventory form procedures for valuables

meant [that] it was not an inventory search.”). The search in this

case was undertaken pursuant to established procedures and

standardized criteria designed to produce an inventory. After

discovering controlled substances, the officers ended the inventory

and called in narcotics investigators. “This change of plans does not

render the search unreasonable . . . .” United States v. Woolbright,

831 F.2d 1390, 1394 (8th Cir. 1987). 

Mundy also argues that the officers were motivated by the

expectation of finding criminal evidence in his vehicle. Officer

Chabot testified that, while Mundy was looking for his registration

and insurance information, he observed what he believed to be a

small marijuana bud on the driver’s side of the car. App. 91, 95.

Officer Soto testified that he noticed two vials “normally used for

narcotics” in the center console. App. 100. In addition, both

Officers Chabot and Soto testified that they detected a strong odor

in the vehicle, which they identified as cocaine based on anecdotal

evidence, including its distinctive scent. App. 95-96, 100. Such

initial observations alone do not suggest that the subsequent

inventory search was conducted in bad faith. See United States v.

Lopez, 547 F.3d 364, 372 (2d Cir. 2008). As the court reasoned in

Lopez,

The Fourth Amendment does not

permit police officers to disguise

warrantless, investigative searches as

inventory searches. However, the

Supreme Court has not required an

absence of expectation of finding

criminal evidence as a prerequisite to a

lawful inventory search. When

officers, following standardized

inventory procedures, seize, impound,

and search a car in circumstances that

suggest a probability of discovering

criminal evidence, the officers will

inevitably be motivated in part by

criminal investigative objectives. Such
 Citing U.S.S.G. § 1B1.2(a), Mundy argues that the 9

“Guidelines require that the district court apply the guideline

18

motivation, however, cannot reasonably

disqualify an inventory search that is

performed under standardized

procedures for legitimate custodial

purposes. 

Id. (citations omitted). 

The District Court in the present case found that the officers

“took the normal steps one would take” to search the vehicle prior

to impoundment. App. 64. We see no error in this finding, and have

no reason to doubt that the Supreme Court’s standards for a

warrantless inventory search were satisfied.

* * * *

We conclude that the search here did not violate the Fourth

Amendment. The PPD Live Stop Policy adequately regulated the

scope of the inventory search with respect to closed containers, and

the search of Mundy’s vehicle, conducted in accordance with those

standardized procedures, was reasonable. 

III.

Mundy next argues that the District Court erred in applying

a two-level enhancement to his U.S.S.G. offense level pursuant to

U.S.S.G. § 2D1.2(a)(1). We engage in plenary review of the District

Court’s legal interpretation of the Guidelines. United States v.

Aquino, 555 F.3d 124, 127 n.5 (3d Cir. 2009).

Section 2D1.2 provided for a two-level enhancement to the

Guidelines offense level for, inter alia, offenses committed in

violation of 21 U.S.C. § 860. See U.S.S.G. § 1B1.2(a) (requiring

reference “to the Statutory Index (Appendix A) to determine the

Chapter Two offense guideline”); U.S.S.G. App. A (2007) (making

§ 2D1.2 enhancement applicable to offenses committed under 21

U.S.C. § 860). Mundy was convicted of possession of more than 9
assigned to each statute of conviction in Appendix A, not in the

commentary,” and that “Appendix A lists § 2D1.1 as the applicable

guideline in § 860(a) cases.” Mundy Reply Br. at 10. Mundy

misreads Appendix A. Section 2D1.2 applies to violations of 21

U.S.C. § 860(a). See U.S.S.G. App. A (2007). Section 2D1.1

applies to violations of 21 U.S.C. § 860a – a statute different from

§ 860.

19

500 grams of cocaine within 1,000 feet of a school, in violation of

21 U.S.C. § 860(a). The District Court, therefore, applied the twolevel enhancement.

Mundy makes two arguments as to why § 2D1.2(a)(1)

nevertheless should be read not to apply to his possession with intent

to distribute conviction, neither of which we find persuasive. First,

Mundy argues that § 2D1.2(a)(1) does not apply because there is no

evidence that he intended to distribute any drugs within 1,000 feet

of a school (though he did possess them there). He argues

specifically:

It is uncontested that Mr. Mundy did

not choose to stop in a protected

location; he was ordered to stop within

1,000 feet of a school by police officers

who observed his alleged commission

of moving violations. But for the

traffic stop, Mr. Mundy would have

continued through the school zone and

on to his ultimate destination.

Mundy Br. at 27. “[I]mportant public policy reasons,” Mundy

contends, dictate that the Guidelines treat possessors who do intend

to distribute within a protected area different from possessors who

intend to distribute elsewhere. Id. at 25.

We previously addressed a very similar issue – whether 21 U.S.C.

§ 860 (which triggers the § 2D1.2(a)(1) enhancement at issue here)

applies to a possessor who did not intend to distribute in a protected

area – in United States v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992).

In Rodriguez, the defendant argued that § 860 does not apply to a
 We also noted that the statute may apply to a defendant 10

who intends to sell drugs in a protected area, even when there is no

increased risk to students, such as when school is not in session.

Id. at 1094-95.

 

20

defendant who possesses drugs within 1,000 feet of a school but

intends to distribute them elsewhere. 961 F.2d at 1091. After

reviewing the plain language of the statute, as well as the legislative

history, we concluded that § 860 applies to a defendant who

possesses drugs within 1,000 feet of a school, even if the defendant

intends to distribute them elsewhere. Id. at 1092. We rejected the

argument that the statute should not apply to possessors who do not

evidence an intent to distribute in a protected area, such as “a

defendant who speeds by a school in a train or other vehicle on the

way to a narcotics sale.” Id. at 1094. Indulging this argument, we

reasoned, “would make the statute inapplicable in several situations

in which the mere possession of sizeable quantities of drugs near a

school would create an increased risk for students.” Id. Some of

those risks include increased chance of violence, as well as loss,

theft, or abandonment of the drugs. Id. Our reasoning in 10

Rodriguez, which led us to the conclusion that § 860 applies to

possessors who do not intend to distribute in a protected area,

suggests that § 2D1.2(a)(1) – a sentencing enhancement triggered by

a violation of § 860 – applies to those possessors as well. Thus,

Mundy’s first argument fails.

Mundy’s second argument fares no better. He points to an

Application Note to § 2D1.2, which provided, in relevant part, “This

guideline applies only in a case in which the defendant is convicted

of a statutory violation of drug trafficking in a protected location.”

U.S.S.G. § 2D1.2 cmt. n.1 (emphasis added). “Drug trafficking” is

not a defined term for purposes of § 2D1.2. Mundy contends that

possession with intent to distribute does not constitute “drug

trafficking” because “drug trafficking” entails the actual sale or

distribution of drugs, and therefore does not trigger the §

2D1.2(a)(1) enhancement. In support of his contention, Mundy

notes that Congress, for the purposes of 21 U.S.C. § 862, defines

“drug traffick[ing]” to require actual distribution. See 21 U.S.C. §

862. Mundy posits that the phrase should carry that same meaning
21

when used in the Application Note to U.S.S.G. § 2D1.2, an

enhancement triggered by the violation of § 862’s neighbor, § 860.

Mundy Br. at 25. 

Mundy’s argument is unpersuasive in light of the

Commentary to § 2D1.2’s unequivocal instruction that § 2D1.2(a)(1)

applies to drug offenses – like Mundy’s – committed in violation of

§ 860. See U.S.S.G. § 2D1.2 cmt. Thus, Mundy’s second argument

fails.

We hold that the District Court did not err in applying a twolevel enhancement to Mundy’s Guidelines offense level under §

2D1.2(a)(1).

IV.

For the reasons stated above, we will affirm the judgment of

conviction and sentence of the District Court.