     Case: 12-60105       Document: 00512137379         Page: 1     Date Filed: 02/06/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 6, 2013

                                       No. 12-60105                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

GREGORY EDWARD VERNON,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                         U.S. Dist. Ct. No. 2:06-cr-00160


Before DEMOSS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Gregory Vernon (“Vernon”) appeals his conviction following a jury trial on
one count of knowingly transporting child pornography in interstate commerce
in violation of 18 U.S.C. §§ 2252A(a)(1), 2256(8)(A),(B). His appellate arguments
fall into two categories: (1) deprivation of right to a speedy trial; and (2)
prosecution on evidence that should have been suppressed. We AFFIRM the
district court’s ruling on the motion to dismiss but REVERSE the ruling on the



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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motion to suppress and therefore VACATE the judgment and REMAND for
further proceedings.
                            I. Facts and Proceedings
      Vernon was indicted in Arizona on child molestation and child
pornography possession charges. Arizona officials, learning that Vernon was at
a casino in Tunica, Mississippi, requested assistance from the United States
Marshals Service (“USMS”) in apprehending and arresting Vernon. Following
Vernon’s arrest at the Mississippi casino on August 9, 2006, the marshals
learned that his car was in the parking lot. Vernon refused consent to search the
vehicle. Upon inquiry, the marshals learned that the casino officials wanted the
car removed. Marshal Christopher Kruse (“Kruse”) asked the Tunica sheriff’s
office to have the car towed, and it was taken to the Tunica County Sheriff’s
Office impound lot. Kruse testified at the motion to suppress hearing that he
was asked by his supervisor to “assist [the Tunica sheriff’s office] doing an
inventory.” He indicated that the inventory was actually conducted by someone
from the sheriff’s office using “a form or notes and . . . [Kruse] was just assisting
him.” Kruse admitted that the search conducted did not comply with USMS
policy.
      During the search, cash and a laptop computer were located. After talking
to the Arizona officials who requested the original arrest, Kruse executed an
affidavit in support of a search warrant request that was granted. When
searched, the laptop revealed numerous child pornography images.
      Vernon was returned to Arizona to face his original charges there. A
federal grand jury in Mississippi indicted Vernon on child pornography charges
on October 26, 2006. On November 8, 2006, a detainer was filed with the
Arizona authorities regarding the federal indictment out of Mississippi. There
is no evidence that Vernon was ever advised of this detainer. In April of 2011,
Vernon was finally sentenced on the Arizona charges, and Vernon was then

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transferred back to Mississippi to face the federal charges. He was formally
arrested on those charges on June 24, 2011.
       Vernon moved to dismiss the indictment based upon a failure to provide
him with a speedy trial. He also moved to suppress the evidence obtained from
the laptop computer. Following an evidentiary hearing, the district court denied
both motions, and a jury trial was conducted. The jury found him guilty, and he
was sentenced to 400 months. This timely appeal followed.
                                      II. Discussion
       A. Speedy Trial
       The Sixth Amendment guarantees each accused with “the right to a speedy
. . . trial.” U.S. Const. amend. VI.1 The constitutional question of delay in
prosecution is governed by Barker v. Wingo, 407 U.S. 514, 530 (1972). Under
Barker, the court must balance four factors: (1) the length of the delay; (2) the
reason for the delay; (3) whether the defendant asserted his right to a speedy
trial; and (4) whether the defendant was prejudiced by the delay. Id. When a
defendant’s constitutional right to a speedy trial has been violated, dismissal of
the indictment is the only available option, even when it allows a defendant who
may be guilty of a serious crime to go free. Id. at 522. We review a district
court’s weighing of the factors de novo, but the underlying factual findings are
reviewed for clear error. United States v. Molina-Solorio, 577 F.3d 300, 304 (5th
Cir. 2009).
       The district court found, and the evidence supports, that a USMS
employee filed a detainer against Vernon in a timely fashion (on November 8,

       1
           We agree with the district court that the statutory Speedy Trial Act, 18 U.S.C. §
3161(j) and the Interstate Agreement on Detainers Act (“IADA”), 18 U.S.C. App. 2, § 2, would
not provide a basis for dismissal here. See Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998)
(dismissal of the indictment is not an available remedy for violation of the IADA notice
provisions); United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985) (no sanction
available under the Speedy Trial Act for failure to lodge a detainer). We adopt the district
court’s reasoning on these points and address only the constitutional argument further.

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2006). Thereafter, the employee checked on the detainer two times and filed a
new detainer when Vernon was transferred to the Arizona Department of
Corrections in May of 2011. He was then promptly returned to Mississippi
where he was scheduled for trial on August 15, 2011.2 The constitutional issue
is raised where the post-indictment delay was more than one year. United
States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002). Here, the length-of-delay
factor weighs in Vernon’s favor as it was nearly five years.
      As to the reason for the delay, we have held that where the delay results
from the defendant being in the custody of another sovereign, “the proper focus
is . . . whether, and to what extent, the state took steps to bring [the defendant]
back . . . for trial.” Nelson v. Hargett, 989 F.2d 847, 853 (5th Cir. 1993) (habeas
case). Here, the USMS acted properly in promptly lodging a detainer, and
Vernon was in Arizona custody awaiting trial there. The district court did not
find intentional delay on the Government’s part, and we see none. Thus, as far
as the “reason for the delay,” we do not fault the Government for any failure on
Arizona’s part to inform Vernon of the charges. Vernon contends he could not
have asserted his speedy trial right because he was unaware of the charges;
regardless, this factor does not weigh in his favor.
      Finally, we turn to the question of prejudice. We agree with the district
court that Vernon is not entitled to a presumption of prejudice. United States
v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003) (noting that prejudice is
only presumed where the post-indictment delay lasted at least five years).
Instead, Vernon had the burden of proving prejudice. Id. at 230-31. On appeal,
Vernon fails to point to any evidence evincing clear error on the district court’s
part in finding no prejudice. Accordingly, we conclude that weighing the four




      2
          The scheduled trial was continued at Vernon’s attorney’s request.

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factors in light of the district court’s findings, Vernon was not entitled to a
dismissal of the indictment.
      B. Motion to Suppress
      “When reviewing the denial of a motion to suppress, we review factual
findings for clear error and the trial court’s conclusions as to the
constitutionality of law enforcement action . . . de novo.” United States v.
Cherna, 184 F.3d 403, 406 (5th Cir. 1999). We will not find clear error unless we
are “left with the definite and firm conviction that a mistake has been
committed.” United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002)
(internal citations and quotation marks omitted). We view the evidence in the
light most favorable to the Government as it was the prevailing party. See
United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
      Vernon appeals the denial of his motion to suppress in which he made
three primary arguments: (1) the impoundment of his car violated the Fourth
Amendment; (2) the inventory search of his car violated the Fourth Amendment;
and (3) the search warrant for his laptop computer was not supported by
probable cause. Under the Fourth Amendment, “[w]arrantless searches and
seizures are ‘per se unreasonable unless they fall within a few narrowly defined
exceptions.’” United States v. Kelly, 302 F.3d 291, 293 (5th Cir. 2002) (quoting
United States v. Roberts, 274 F.3d 1007, 1011 (5th Cir. 2001). Two of these
exceptions include the “community caretaking exception,” United States v.
McKinnon, 681 F.3d 203, 208 (5th Cir. 2012), and the inventory exception,
United States v. Hahn, 922 F.2d 243, 246 (5th Cir. 1991). We address each
possible exception under these facts in turn.
      1. Impoundment
      We need spend little time on Vernon’s argument that the original
impoundment of his vehicle was an unconstitutional seizure. We have held on
numerous occasions that impoundment of an arrestee’s vehicle under similar

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circumstances is permissible under the “community caretaking” exception. See,
e.g., McKinnon, 681 F.3d at 208-09 (5th Cir. 2012); United States v. Staller, 616
F.2d 1284, 1289-90 (5th Cir. 1980); United States v. Ducker, 491 F.2d 1190, 1192
(5th Cir. 1974). For example, in Staller, we concluded that impoundment of a
car in a mall parking lot was proper where the arrestee was from another state
and had been taken to jail with little likelihood of returning to his car soon, he
had no known responsible adults who could take custody of the car, and a car
parked in a mall parking lot (similar to a casino lot) runs a high risk of
vandalism or theft.     616 F.2d at 1290.        These same facts support the
impoundment here. We conclude that the district court did not err in finding the
original impoundment not to be an unconstitutional seizure.
      2. Inventory Search
      The purported inventory search presents a more difficult question. When
a vehicle is impounded, an inventory of its contents may be conducted; however,
such an inventory process must be guided by “applicable standardized criteria.”
Hahn, 922 F.2d at 246. Such standardized criteria are necessary “based on the
principle that an inventory search must not be a ruse for a general rummaging
in order to discover incriminating evidence. The policy or practice governing
inventory searches should be designed to produce an inventory.” Florida v.
Wells, 495 U.S. 1, 4 (1990).
      At the suppression hearing, Kruse gave testimony supportive of a concept
that the search was conducted by local officials with his participation being
limited to “assistance.” However, the Government focused on the USMS policy,
and Kruse conceded that he did not comply with this policy. The district court
nonetheless found the search supported by the “independent reason” that “[t]he
marshals knew that Vernon would be transported to Arizona after he was
arrested and that his vehicle could not be left at the casino.” We agree with
Vernon that the district court erred in this regard; it appears that the court

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conflated the requirements for the initial impoundment with the requirements
for a subsequent inventory search.
           On appeal, the Government does not contend that the inventory search
complied with the USMS policy, thus waiving any such argument. Instead, it
argues that the search was conducted by Tunica County sheriff officials
pursuant to their policy. Vernon counters that this policy was not offered at the
suppression hearing and cannot form the basis for our consideration here.
       Vernon asserts that we “may not consider facts which were not before the
district court at the time of the challenged ruling.” Theriot v. Parish of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999). We need not decide whether inadequate
evidence presented at a suppression hearing can be remedied at a later trial
because here no evidence of any kind concerning Tunica County policy was
presented at any point before the district court entered judgment. Accordingly,
we may only consider the fact that the USMS had a policy with which Kruse
admittedly did not comply.3 In United States v. Hope, 102 F.3d 114, 115 (5th Cir.
1996), we addressed a similar situation where mention was made of an inventory
by “Memphis police” but no evidence was proffered regarding any standardized
criteria for such searches or compliance therewith. We reversed the convictions
after a jury trial that relied upon the evidence found in the inventory search
reasoning: “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,


       3
           In United States v. Lage, we considered circumstances where a trooper with the
Texas Department of Public Safety (“DPS”) conducted a search with the assistance of a county
deputy sheriff. 183 F.3d 374 (5th Cir. 1999). Evidence indicated that the search was
conducted pursuant to the DPS’s inventory policy but that the county sheriff’s department did
not have a set of rules for inventory searches. Id. at 380-81. We found that the search did not
violate the Fourth Amendment as it was conducted in accordance with the DPS’s policy. Id.
at 381. Here, unlike in Lage, the only policy offered in evidence was USMS’s, the “assisting”
officer’s department. Regardless, even that policy was not complied with.

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established police procedures. That did not occur herein and the evidence found
in the search . . . should not have been admitted in evidence.” Id. at 117.4 We
are compelled to reach the same conclusion here.
       We similarly reversed a district court in Hahn, where we concluded that
the search there at issue actually complied with a local police policy but the IRS
agents who conducted the search had no knowledge of such a policy, the IRS had
no policy of its own, and the local police played no role in the search. Id. at 246-
47. We therefore concluded that the IRS search could not be justified as an
inventory search. Id. at 247.
       Under our precedents and with the Government’s admissions to the
district court, the motion to suppress should have been granted. Accordingly,
we AFFIRM the denial of the motion to dismiss, REVERSE the denial of the
motion to suppress the inventory search,5 VACATE the conviction and sentence,
and REMAND for proceedings consistent herewith.




       4
         Since the laptop was the primary evidence against Vernon, it cannot reasonably be
claimed that this error was “harmless.”
       5
           Vernon also challenged the validity of the search warrant. Because the search
warrant was based upon the improper vehicle search, it does not provide an independent basis
to sustain the admission of the laptop evidence.

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