Cash seized via plain view but drug test kit was not properly seized under inventory search or search incident to arrest

The Drug Enforcement Administration (“DEA”) was provided information that Terrence Spidell Durham was involved in the distribution of cocaine. He allegedly attempted to buy multiple kilograms of cocaine in Houston, Texas to distribute on the East Coast. DEA agents began investigating Durham and coordinated with the Houston Police Department to surveil Durham, and he was introduced to an undercover officer, Kimberly King.

Durham and Officer King ultimately coordinated a “Buy-Bust” operation where Officer King negotiated a drug transaction with Durham and agreed to provide five kilograms of cocaine in exchange for $100,000 cash. Durham and Officer King met in a parking lot and were followed by surveillance units. There, they walked to the trunk of a black Infiniti sedan and Officer King observed a paper bag filled with cash and immediately signaled to the surveillance units to arrest Durham.

During a search of the vehicle, $100,000 cash and a cocaine drug test kit located inside the Infiniti were seized without a warrant. Also seized from the vehicle were odor absorbing charcoal foam floor mats, latex gloves, and an insurance card indicating that Durham was a named insured or operator of the Infiniti.

Terrence Spidell Durham was charged with one count of attempt to possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii). Durham moved to suppress all physical evidence seized during a search of his vehicle. He was ultimately found guilty following a bench trial.

On appeal, Durham argued that the district court erred in denying his motion to suppress because the Government failed to prove that the search of the interior of the Infiniti met the inventory exception or search incident to arrest to the warrant requirement. The Government argues that the $100,000 cash was seized in plain view and the drug test kit was discovered pursuant to an inventory search or a search incident to arrest. The 5th affirmed the conviction but held the drug test kit was not properly obtained under an inventory search or search incident to arrest.

A. Plain View Seizure of $100,000 Cash

It is well-established that under certain circumstances the police may seize evidence in plain view without a warrant. See SCOTUS case Arizona v. Hicks, 480 U.S. 321 (1987). The plain view doctrine will justify such a seizure if (1) the officers lawfully entered the area where the items could be plainly viewed; (2) the incriminating nature of the items was immediately apparent; and (3) the officers had a lawful right of access to the items. See Waldrop.

The incriminating nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’ to believe that the item is either evidence of a crime or contraband. Probable cause does not require certainty. To have probable cause, it is not necessary that the officer know that the discovered item is contraband or evidence of a crime, but only that there be a practical, nontechnical probability that incriminating evidence is involved. See Turner. When reviewing probable cause determinations, we consider the totality of the circumstances—including the officers’ training and experience as well as their knowledge of the situation at hand.

Here, Durham and Officer King had discussed the exchange of $100,000 cash for “five kilos.” Officer King testified at trial that she visually saw the cash in the bag before Durham was arrested. She further stated that upon meeting with Durham in advance of the deal, he expressed concerns about going back to jail and wanting “to make sure everything was right.” When they met, Officer King understood that Durham was uncomfortable with the meeting location due to the presence of security. She further testified that she had 25 years of experience in narcotics, had played an undercover role “over 100 . . . maybe over 500” times, and that there was an understanding that in this case, “kilo” referred to a kilogram of cocaine.

Accordingly, Officer King had sufficient probable cause to believe that the bag of cash was evidence of a crime. See United States v. Munoz, 957 F.2d 171 (5th Cir. 1992) (noting that proof of intent to distribute may be inferred from large quantities of cash). Therefore, the plain view exception applied to the seizure of the $100,000.

An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might kept in a towed car), and to protect against false claims of loss or damage. See SCOTUS Whren v. United States, 517 U.S. 806 (1996). Inventory searches are an exception to the warrant requirement because they serve caretaking purposes, and because they are not designed to uncover evidence of criminal activity.

Accordingly, an inventory search of a seized vehicle is reasonable and not violative of the Fourth Amendment if it is conducted pursuant to standardized regulations and procedures that are consistent with (1) protecting the property of the vehicle’s owner, (2) protecting the police against claims or disputes over lost or stolen property, and (3) protecting the police from danger. See McKinnon.

An ‘inventory search’ must not be a ruse for a general rummaging in order to discover incriminating evidence. Thus, standardized criteria or established routine must regulate the opening of containers found when conducting an inventory search. See SCOTUS Florida v. Wells, 495 U.S. 1, 4 (1990). Importantly, it is beyond serious debate that the prosecution bears the burden of establishing that any evidence submitted, which resulted from an inventory search, was the result of a search conducted in accordance with known, established police procedures. See Hope.

There is no requirement that the prosecution submit evidence of written procedures for inventory searches; testimony regarding reliance on standardized procedures is sufficient as is an officer’s unrebutted testimony that he acted in accordance with standard inventory procedures. See Lage.

The Government admits that it did not present testimony regarding the DEA’s inventory policy or whether it was followed by agents. The only testimony presented was that of Officer Kedwin Polanco who in response to the Government’s question: “There was a search later conducted on the – inventory search of the vehicle?” replied “Yes, sir, it was.” There is no testimony referring to DEA guidelines or that they were followed.

Therefore, it is impossible to determine whether this inventory search complied with the DEA’s guidelines, and there is no evidence that the inventory exception to the warrant requirement applied.

C. Search Incident to Arrest (Drug Test Kit)

A search incident to a lawful arrest is an exception to the warrant requirement. See SCOTUS Arizona v. Gant, 556 U.S. 332 (2009). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.

Accordingly, a search incident to arrest is limited to an arrestee’s person and the area within his immediate control, in other words, the area from within which he might gain possession of a weapon or destructible evidence. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.

The Government admits in its response to Durham’s suppression motions that the drug test kit was found after Durham was arrested, pursuant to an inventory search. The presentence report also describes a vehicle inventory when discussing the seized “currency, vehicle, and drug test kit.” At the suppression hearing, Polanco testified that the vehicle was towed to the DEA office and an inventory search was later conducted. The Government states that the DEA seized the bag of cash from the trunk, had it processed and counted ($100,000), and towed the Infiniti back to the DEA office.

Certainly, circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. However, the Government had no reason to know that the drug transaction would take place in a vehicle and Durham was not driving the vehicle where the cash was found. Furthermore, the Government does not point to any evidence to explain why the officers may have had a reasonable belief that additional evidence of the specific crime for which Durham was arrested would be in Durham’s vehicle. While the Government claims that Officer King had a reasonable belief that evidence relevant to the crime would be found, there is no argument beyond this conclusory statement and no evidence of record to show that the exception in Gant would apply.

Accordingly, the search of Durham’s vehicle that produced the drug test kit was not a valid search incident to arrest because he had already been arrested and taken into custody before the search occurred.

(Despite above, the Court ruled that it was harmless error in this case for the drug kit to be admitted. The test for harmless error is whether the trier of fact would have found the defendant guilty beyond a reasonable doubt if the evidence had been suppressed).