United States v. Kurt Ernest Hellman

556 F.2d 442 UNITED STATES of America, Plaintiff-Appellee, v. Kurt Ernest HELLMAN, Defendant-Appellant. No. 76-3268. United States Court of Appeals, Ninth Circuit. June 24, 1977. James C. Jagger, of Diment, Jagger & Billings, Eugene, Or., for defendant-appellant. Tommy Hawk, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. On Appeal from the United States District Court for the District of Oregon. Before MERRILL and SNEED, Circuit Judges, and BLUMENFELD, * District Judge.OPINION MERRILL, Circuit Judge: 1 This appeal is taken from judgment of conviction of several counts of mail fraud involving the use of credit cards, and of using a false and assumed name in promotion of a scheme to defraud, all in violation of 18 U.S.C. §§ 1341 and 1342. The sole issue presented is whether denial of a motion to suppress evidence was error. 2 Appellant was arrested in Eugene, Oregon, pursuant to a parole violator warrant. At the time of arrest his car was parked partially blocking a driveway of an oil company's fuel yard. The car was issued a citation for blocking the driveway and impounded on the spot. Officers then immediately searched the car and took an inventory of its…

*443 OPINION

This appeal is taken from judgment of conviction of several counts of mail fraud involving the use of credit cards, and of using a false and assumed name in promotion of a scheme to defraud, all in violation of 18 U.S.C. §§ 1341 and 1342. The sole issue presented is whether denial of a motion to suppress evidence was error.

Appellant was arrested in Eugene, Oregon, pursuant to a parole violator warrant. At the time of arrest his car was parked partially blocking a driveway of an oil company’s fuel yard. The car was issued a citation for blocking the driveway and impounded on the spot. Officers then immediately searched the car and took an inventory of its contents. The car was then towed to a private impounding facility. Two weeks later a warrant was obtained for the search of appellant’s business premises, and a week after that a second warrant was issued for search of a brief case which had been discovered in the search of the car. Evidence obtained at the time of the inventory and from both warranted searches was introduced at trial. Appellant contends that all three searches were unreasonable: the search of the car, since it was without warrant; the other…

(concurring):

I join in Judge Merrill’s opinion; however, it is appropriate I believe for me to set forth my understanding of that portion of the opinion which pertains to the failure of the government to demonstrate that the inventory search in this case was pursuant to routine practice. Judge Merrill’s opinion which deals with this issue, p. 444, follows closely the approach of Mr. Justice Powell’s concurring opinion in South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 . Both justify an inventory search of an automobile by police without a warrant only in those situations in which, to use Mr. Justice Powell’s phrase, “no significant discretion is placed in the hands of the individual officer.” Id. at 384 , 96 S.Ct. at 3104 . Mr. Chief Justice Burger’s opinion in Opperman , in which Mr. Justice Powell and three other Justices joined, assumed that the search before the Court was “a routine inventory search of an automobile lawfully impounded by police,” id. at 365 , 96 S.Ct. at 3095 , and devoted itself substantially to showing that such a search did not contravene the Fourth Amendment. In doing this it did not specifically emphasize the elimination of…