                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 00-2421
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Robert Childs Hartje,                  *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: February 13, 2001

                                 Filed: May 31, 2001
                                  ___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

WOLLMAN, Chief Judge.

      Robert Childs Hartje appeals from his conviction and sentence entered on
various methamphetamine-related charges. We affirm the conviction, but vacate the
sentence in part and remand for resentencing.
                                           I.

       On October 29, 1999, Hartje was convicted of two counts of distribution of
methamphetamine in violation of 21 U.S.C. § 841(a)(1), one count of possession with
intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), one count
of possession of a firearm while being an unlawful user of a controlled substance in
violation of 18 U.S.C. § 922(g)(3), and one count of conspiracy to manufacture,
distribute, and possess with intent to distribute methamphetamine in violation of 21
U.S.C. § 846. The district court sentenced Hartje to 210 months of imprisonment on
all counts, to run concurrently, and three years of supervised release.

        Much of the incriminating evidence presented at trial was the result of two
searches of Hartje’s residence in Conway, Arkansas, coupled with the items located
in the trunk of the vehicle Hartje was driving when he was arrested in February of
1999. The first search of Hartje’s residence and property, where Hartje resided with
his son and many other individuals, occurred on August 4, 1998. The search was
conducted pursuant to a warrant based on an affidavit by Investigator Danny Moody
of the Conway Police Department that described several methamphetamine
transactions, including controlled buys, that had been made by and for confidential
informants at the residence earlier in the summer. Items seized included
methamphetamine, digital scales, syringes, bongs, and several firearms. The second
search was conducted on October 15 and 16, 1998, also pursuant to a warrant. This
second warrant was based on the affidavit of Investigator Travis Thorn of the Conway
Police Department outlining Hartje’s recent purchase of materials that could be used
for the manufacture of methamphetamine and a report from a previously proven reliable
informant of a methamphetamine purchase at the residence. Investigator Thorn’s
affidavit also recounted the results of the prior search. Items seized from the residence
during the second search included methamphetamine, plastic baggies, scales,
pseudoephedrine, and a list of ingredients used in the manufacture of
methamphetamine.

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       In late January of 1999, law enforcement officers received information that
Hartje was using hotel rooms to manufacture methamphetamine. On February 9, 1999,
they were notified that Hartje had checked into a hotel. Investigator Thorn and
Investigator William Tapley surveilled the hotel and observed Hartje and a female
companion load several boxes into the trunk of his car. Shortly thereafter, two men got
out of a blue car, went inside the hotel, and returned to the parking lot with Hartje, the
female, and another male. After the group conversed for a time in the parking lot, the
two men from the blue car returned to it and departed. Hartje and the other two
individuals then left shortly thereafter in Hartje’s vehicle. While Investigators Thorn
and Tapley tailed Hartje’s vehicle in an unmarked car, another law enforcement team
followed and subsequently stopped the blue car. A search of the blue car revealed
methamphetamine, a large quantity of cash, and a weapon. By this time, yet another
law enforcement officer had stopped Hartje’s vehicle for speeding, and the male
passenger had falsely identified himself to the officer. When Investigators Thorn and
Tapley, who had stopped their vehicle near Hartje’s vehicle, learned by radio of the
discovery in the blue car, they informed the officer who had stopped Hartje of the
circumstances. Hartje and his passengers were immediately arrested on
methamphetamine charges. A search of Hartje’s vehicle revealed “[b]asically just
almost everything you would need for a [methamphetamine] lab” in the trunk.

                                           II.

      The district court held two hearings on Hartje’s motions to suppress and
concluded that there was probable cause for the issuance of the warrants for the
residence and that the search of the vehicle’s trunk was conducted pursuant to a
standard police department policy and thus was a valid inventory search.

      Hartje first argues that the October 15, 1998, search warrant for his residence
was not based on probable cause because the facts outlined in the supporting affidavit


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did not have the required nexus with his residence. He then challenges the August
1998 search warrant as based on stale information.

        “We examine the factual findings underlying the district court’s denial of the
motion to suppress for clear error and review de novo the ultimate question of whether
the Fourth Amendment has been violated.” United States v. Nation, 243 F.3d 467, 469
(8th Cir. 2001) (citation omitted). Probable cause exists if there is a fair probability
that contraband or evidence of a crime will be found in a particular place. Id. We will
uphold a judicial determination of probable cause if we believe that there was a
substantial basis for concluding that a search would uncover evidence of wrongdoing.
Id. at 470-71. “We emphasize that probable cause is to be determined under a totality-
of-the-circumstances approach.” United States v. LaMorie, 100 F.3d 547, 553 (8th
Cir. 1996).

       We agree with the district court that the information provided in Investigator
Thorn’s October affidavit would give a reasonable person reason to suspect that items
relating to the manufacture and distribution of methamphetamine would be found at
Hartje’s residence. The affidavit outlined the facts of the results of the prior search of
the residence, that Hartje had been seen purchasing items used in the manufacture of
methamphetamine, and that a reliable informant had reported the recent distribution of
methamphetamine at Hartje’s residence. It is true that the affidavit did not specify
whether Hartje took his purchases to his residence, but given the other facts in the
affidavit and viewing Hartje’s purchases in the light of the circumstances of this case,
we conclude that the warrant for the October search was supported by probable cause.

       We also agree with the district court that the information in Investigator Moody’s
August 3, 1998, affidavit supporting the August warrant was not stale. Four of the five
reported methamphetamine transactions in the affidavit occurred in June of 1998 and
the fifth on July 31, 1998. The substance obtained on June 30 field-tested for
methamphetamine, but the substance from the July 31 transaction did not.

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Notwithstanding the negative field test, the July 31 substance was a precursor of
methamphetamine and was sold as methamphetamine, thus rendering it relevant to the
ongoing methamphetamine production at the residence. Additionally, we also conclude
that the time lapse from the late June purchase to the late July purchase did not render
the information stale in light of the ongoing nature of the crimes. See LaMorie, 100
F.3d at 554 (time factors relevant but must be viewed in the context of a particular case
and nature of the crime charged); United States v. Formaro, 152 F.3d 768, 771 (8th Cir.
1998). In the totality of the circumstances, the facts outlined in the supporting affidavit
were sufficient to constitute probable cause to issue the August warrant.

       We turn to Hartje’s argument concerning the suppression of the evidence found
in the trunk of his vehicle. He argues that his arrest was not supported by probable
cause and that even if it was, the search of the trunk was conducted to search for
incriminating evidence rather than to inventory the contents. The district court found
that there was probable cause to arrest Hartje and the other occupants of his vehicle.
The court then concluded that although the officers were likely hoping to find
incriminating evidence, their inventory of the contents of the trunk was conducted
pursuant to a standard police department policy that requires such an inventory before
a vehicle is towed.

       Probable cause to conduct a warrantless arrest exists when at the moment of
arrest police have knowledge of facts and circumstances grounded in reasonably
trustworthy information sufficient to warrant a belief by a prudent person that an
offense has been or is being committed by the person to be arrested. Beck v. Ohio, 379
U.S. 89, 91 (1964). By February of 1999, officers had already searched Hartje’s
residence twice and found methamphetamine, weapons, and items related to the
manufacture and distribution of methamphetamine. They had also received a tip that
Hartje had begun to manufacture methamphetamine in hotel rooms. Under
surveillance, Hartje and two companions met with two men at a hotel who were
stopped in their vehicle shortly thereafter and found to have methamphetamine, cash,

                                           -5-
and a weapon. Meanwhile, one of Hartje’s passengers lied to a police officer about his
identity during a routine traffic stop. Accordingly, we agree with the district court’s
determination that the police had probable cause to arrest Hartje on methamphetamine
charges.

       When taking custody of property such as Hartje’s vehicle, law enforcement
officers may conduct a warrantless search and inventory in order to protect the owner’s
property, to protect the police against claims of lost or stolen property, and to protect
the police from potential danger. Colorado v. Bertine, 479 U.S. 367, 372 (1987). The
central inquiry in determining whether such an inventory search is reasonable is a
consideration of the totality of the circumstances. United States v. Marshall, 986 F.2d
1171, 1174 (8th Cir. 1993). “[I]nventory searches conducted according to standardized
police procedures, which vitiate concerns of an investigatory motive or excessive
discretion, are reasonable.” Id. Law enforcement officers, however, “may not raise
the inventory-search banner in an after-the-fact attempt to justify what was . . . purely
and simply a search for incriminating evidence. Id. at 1175.

         Hartje and both of his passengers were taken into custody while Hartje’s vehicle
was parked on the side of a road paralleling a highway. Investigator Tapley testified
during the suppression hearing that the “policy of Conway Police Department is that
anytime a vehicle is towed, that an inventory, a complete inventory be done on that
vehicle before the wrecker service takes the vehicle,” and that “during training, this
was what we were shown to do and how to do it.” We do not believe, as Hartje
suggests, that the fact that the officers failed to outline more of the specifics of the
towing policy renders the district court’s finding clearly erroneous, or that the fact that
the officers’ motives may have been mixed invalidates the search for the purposes of
the Fourth Amendment. “[W]hen the police conduct inventory searches according to
. . . standardized policies, they may keep their eyes open for potentially incriminating
items that they might discover in the course of an inventory search, as long as their sole
purpose is not to investigate a crime.” Id. at 1176. There is no indication in the present

                                           -6-
case that the search was a subterfuge for a “general rummaging” for evidence. See id.
at 1175 (citation omitted). Thus, the court did not clearly err in its finding that Hartje’s
vehicle was inventoried pursuant to standard Conway Police Department procedure.

                                            III.

       Hartje contends that his sentence violates the dictates of Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (any fact other than that of a prior conviction that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury and found beyond a reasonable doubt), because his sentencing range
under the sentencing guidelines, determined partially through a four-level increase in
the offense level pursuant to U.S.S.G. § 3B1.1(a) for being a leader, was 210 to 262
months of imprisonment, a range which he contends exposed him to punishment
exceeding the statutory maximum of 240 months to which he could be sentenced under
21 U.S.C. § 841(b)(1)(C) for an offense in which no drug quantity is specified in the
indictment or jury verdict. See 21 U.S.C. § 841(b)(1)(C); United States v. Bradford,
No. 99-3975, 2001 U.S. App. LEXIS 6435 at *8 (8th Cir. April 13, 2001). Hartje was
sentenced only to 210 months, however. So long as the imposed sentence does not
exceed the statutory maximum allowable for the crime, Apprendi is not implicated.
United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000); United States v.
Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000). Accordingly, this claim fails.

      Hartje argues that the court did not believe that it had the authority to depart
downward under sentencing guideline § 5K2.13 for Hartje’s diminished mental
capacity during the time he committed the crimes.1 We review the district court's


       1
        “Diminished Capacity (Policy Statement)
       A sentence below the applicable guideline range may be warranted if the
       defendant committed the offense while suffering from a significantly reduced
       mental capacity.” U.S.S.G. § 5K2.13 (2000).

                                            -7-
application of the sentencing guidelines de novo and its factual findings for clear error.
United States v. Rohwedder, 243 F.3d 423, 425 (8th Cir. 2001).

       Hartje’s counsel raised the possibility of a departure under § 5K2.13 and moved
for a full psychiatric evaluation prior to sentencing. The court granted the motion and
ordered an examination, which resulted in a report indicating that Hartje suffers from
substance abuse and an adjustment disorder with depressed mood but that his mental
capacity is not significantly diminished. During the sentencing hearing, the court
briefly discussed Hartje’s statement that he had been diagnosed as bipolar manic
depressive, which was not included in the pre-sentence report, and, immediately before
declaring judgment, mentioned that it found no basis on which to depart from the
guidelines range. In light of the district court’s granting of the motion for an
examination and its discussion of Hartje’s possible mental illness, we conclude that the
court was aware of its ability to depart downward if it determined that Hartje’s
situation merited such relief. The court’s decision not to depart is virtually
unreviewable on appeal. See United States v. Johnson, 169 F.3d 569, 573 (8th Cir.
1999); United States v. Ruklick, 919 F.2d 95, 97 (8th Cir. 1990). Accordingly, this
claim fails. Hartje’s additional claim on this issue regarding a conflict of interest is
without merit.

       Finally, Hartje contends that the district court erroneously sentenced him to 210
months of imprisonment on Count IV, the charge of possession of a firearm by a user
of a controlled substance in violation of 21 U.S.C. § 922(g)(3), for which the statutory
maximum is ten years. Although the district court noted the ten-year maximum on
Count IV during the sentencing hearing, the final judgment it entered imposed a
sentence of 210 months on all counts. Accordingly, the government agrees with Hartje
that the sentence on Count IV must be vacated.

     The conviction is affirmed, as are the sentences imposed on Counts I, II, III, and
V. The sentence imposed on Count IV is vacated, and the case is remanded to the

                                           -8-
district court for resentencing within the confines of the statutory maximum on that
count.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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