Inventory Search Wasn’t Marred by Added Investigatory Aim

Thursday, October 25, 2018

Page 3

Ninth Circuit:

Inventory Search Wasn’t Marred by Added Investigatory Aim

Judge Wardlaw Enters Dissent—One of Three in Two-Day Period

By a MetNews Staff Writer

A Ninth U.S. Circuit Court of Appeals judge has alleged, in a dissent, that San Diego police conducted a warrantless search of a vehicle under the guise of inventorying the contents, prior to a towing, when their actual purpose was to rummage in hopes of finding evidence of some crime—drawing a retort by the majority that, even if that’s so, a search can have dual purposes and must be upheld if one is valid.

The dissent by Circuit Judge Kim McLane Wardlaw, on Tuesday, was one of three opinions filed this week in which she parted company with her colleagues.

The warrantless-search case involved an appeal by Lamonte Gaston Sr. from his conviction for being a felon in possession of a firearm and ammunition. Gaston was taken into custody pursuant to a misdemeanor arrest warrant and police called for a tow truck; they conducted a search of his vehicle prior to the towing; a locked box was found in the trunk which Gaston said contained jewelry; police opened it and found the weapon.

In its memorandum opinion, the majority—comprised of Judges Susan P. Graber, and Morgan Brenda Christen—noted that the San Diego Police Department (“SDPD”) has a policy of inventorying contents of vehicles that are about to be impounded, and that such searches were held by the U.S. Supreme Court in the 1987 case of Colorado v. Bertine to be “a well-defined exception to the warrant requirement.”

Ninth U.S. Circuit Court of Appeals Judges Kim McLane Wardlaw, Susan P. Graber, and Morgan Brenda Christen hear arguments Aug. 8 in Pasadena in the case of Lamonte Gaston Sr. In an opinion filed Tuesday, Graber and Christen affirmed his conviction on a weapons possession charge, rejecting the contention that his vehicle was subjected to an unlawful warrantless search; Wardlaw dissented.

Wardlaw’s Dissent

Wardlaw said in her dissent:

“The district court clearly erred by finding that the officers’ search of the car was ‘reasonably designed to produce an inventory.’ Most significantly, the officers did not in fact produce an ‘inventory.’ There is nothing in the record that even remotely resembles an ‘inventory’….”

The judge went on to say:

The department’s written policy requires that officers enumerate “items of value” found in the vehicle, but in this instance, the inventory report stated “NONE.” An officer explained, in testimony, that items found were not deemed to be valuable.

Wardlaw observed:

“The officer’s post hoc rationalization strains credulity. For one, the officer had, seconds earlier, testified that jewelry, cash, and electronics are among the types of valuables officers would have listed on a vehicle report. But a DVD player and Wii video game player are unequivocally ‘electronics.’ For another, the same officer also testified that they decided to open the lock box because when asked about its contents. Gaston answered that ‘there was a whole bag of jewelry inside,’ and, therefore, the officers wanted to ensure they inventoried the jewelry before impounding the car. Video footage of the incident, however, proves otherwise. It shows that the officers did not inquire further as to the type of jewelry in the lock box. Instead, one officer shook the box and handed it to another officer, who said. ‘Sounds like there’s something heavy like a gun. Come on. Guy. tell me.’ ”

Adopting language from the U.S. Supreme Court’s 1980 decision in Florida v. Wells, she said the “officers’ ‘inventory’ search was but ‘a ruse for general rummaging in order to discover incriminating evidence.’ ”

Majority’s Response

The majority’s opinion comments:

“As the dissent rightly observes, the facts suggest that one of the searching officers’ motives was an ongoing criminal investigation. Although ‘an inventory search is invalid if it was a pretext for an investigative search,’ a search conducted with the dual motives of inventory and investigation is permissible….The district court found that the officers were motivated, at least in part, by policy requiring an inventory search for valuable items. On the record before us, we cannot say that this finding was clearly erroneous.”

Wardlaw insisted that District Court Judge Marilyn L. Huff of the Southern District of California, made no such finding.

At oral argument in Pasadena on Aug. 8, Wardlaw took a different stance, appearing to agree that the search was validated by the need to inventory the contents of the vehicle. She remarked:

“So, at a minimum, to me, I would think this likely was a dual motive search, which is permissible—but I’m not sure that’s what the District Court found.”

The case is U.S. v. Gaston, 17-50130.

Another Dissent

Also on Tuesday, Wardlaw dissented from a memorandum opinion signed by Graber and Christen in the case of Potlongo v. Herff Jones, LLC, No. 17-56815.

The majority reversed a Nov. 6, 2017 preliminary injunction granted by District Court Judge Josephine L. Staton of the Central District of California barring an Indiana company—which manufactures and sells graduation products—from seeking to enforce a non-competition clause in an agreement with its former California sales representative, Raymond J. Potlongo, and his Anaheim company, Grads R Us, Inc.

The action was brought by Potlongo in Orange Superior Court but removed to federal court by defendant Herff Jones, LLC. Declining to apply Indiana law, Staton found the non-competition clause too broad to be enforceable under California law, and acted to block an Indiana arbitrator from enjoining Potlongo’s continued business activities for the four-year period provided in the non-competition agreement.

District Court Decision

Staton wrote:

“Potlongo explains that he has worked in this industry for the past 33 years and has no other way to earn a living or support his family….If Defendants can enjoin him for four years, he argues, he will have no livelihood….Herff Jones characterizes this injury as purely monetary….

“The Court concludes that Potlongo’s loss of livelihood and ability to support his family constitute irreparable harm. Herff Jones is correct that any lost income could be remedied through an award of money damages. Potlongo’s loss of ability to pursue his chosen livelihood, and the means by which he has supported his family for decades, however, does not have an adequate remedy at law.”

Ninth Circuit’s Reversal

In reversing, Graber and Christen said:

“On this record, Potlongo and Grads did not establish a likelihood of irreparable harm in the absence of a preliminary injunction for two reasons. First, there is no evidence that the status quo would have changed if an injunction had not issued. Potlongo avers that he is currently working for Herff Jones’s competitor, and the record docs not show that he will lose that position unless and until Herff Jones secures and enforces a judgment against him. Second, Potlongo and Grads present evidence of only economic injury, which does not qualify as irreparable harm because it can be compensated by an award of money damages….Although the loss of one’s business can constitute irreparable harm…, the record here does not demonstrate that the loss of Potlongo’s business is likely.”

In dissenting, Wardlaw accused the majority of failing to accord requisite deference to the trial court’s factual findings. She noted that Staton determined that enforcement of the non-competition clause “would infringe on Potlongo’s livelihood sufficiently to create a likelihood of irreparable injury.”

The dissenter asserted that “the majority does not even begin to explain why the district court’s factual findings…were clearly erroneous” and, in consequence of that, “reversal is improper.”

She declared that “nowhere does the majority identify just how the district court abused its discretion in issuing the injunction.”

Bankruptcy Case

In a dissent filed Monday in a published bankruptcy case, In re Swintek, No. 16-60003, Wardlaw disputed the notion, expressed in the majority’s opinion by Circuit Judge Jay S. Bybee, that execution of judgment pursuant to a one-year priority lien, created by serving a debtor in a California action with an order for appearance and examination [“ORAP”], was subject to the automatic stay provision in the Bankruptcy Code.

At issue was whether a judgment creditor lost her priority status by virtue of not having renewed the lien after one year had elapsed following the debtor declaring bankruptcy.

Bybee wrote:

“We hold that the period in which a creditor may execute on a lien constitutes the continuation of the original action that resulted in the judgment and is thus tolled during the automatic stay.”

Wardlaw contended an ORAP lien “is merely a tool to enforcing a judgment” and does not come within the stay provision which applies to the “commencing or continuing a civil action...on a claim against the debtor” that preceded the declaration of bankruptcy.