                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2002

USA v. Hodge
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2556




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"USA v. Hodge" (2002). 2002 Decisions. Paper 785.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/785


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                                                                               NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT


                                           No. 01-2556




                                UNITED STATES OF AMERICA

                                                 v.

                                WILLIAM HENRY HODGE, JR.,

                                                              Appellant


                        Appeal from the District Court of the Virgin Islands
                                      Division of St. Thomas
                            (D.C. Criminal Action No. 00-cr-00089)
                          District Judge: Honorable Thomas K. Moore


                           Submitted Under Third Circuit LAR 34.1(a)
                                        May 13, 2002


                    Before: AMBRO, FUENTES and GARTH, Circuit Judges


                                (Opinion filed November 27, 2002)




                                            OPINION


AMBRO, Circuit Judge

      Appellant William Henry Hodge, Jr. was convicted by a jury in the District Court of the Virgin
Islands of armed robbery and other related offenses. He was sentenced to 144 months imprisonment,

three years of supervised release, and ordered to pay restitution and an assessment. Hodge raises a

single issue on appeal: whether the District Court’s denial of his motion to suppress evidence obtained

from his vehicle was error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                                    I.

        In February 2000 two men wearing stocking caps as masks robbed at gunpoint a Western

Union in St. Thomas. Soon after, a witness in the area saw two men, one with a gun in his waistband,

removing stocking caps from their heads. The men threatened the witness with physical harm if she

spoke to the authorities, but she later cooperated with the investigation and identified Hodge from a

book of mug shots.

        A warrant to arrest Hodge was issued on February 25, 2000. Three days later, an officer

observed Hodge drive a gray Mazda Protege to a grocery store and park the vehicle at a curb on the

street in front. By the time other police arrived on the scene, Hodge was outside of his car, standing

with other persons nearby. After Hodge had been taken into custody, an FBI agent assigned to the

case looked inside the car’s windows and saw stocking masks on the floor of the back seat.

According to the agent’s testimony, the FBI’s policy is to impound the unattended vehicles of arrestees

when no third party is available to take control of the car, and inventory its contents once moved to a

safe location. The agent, using Hodge’s keys, drove the car to a federal building. On March 1st,

pursuant to a warrant, the officers searched the car and seized nylon mask-type hoods.

        The Government moved to admit the masks into evidence at trial. Hodge objected that the

items were the fruits of an illegal search and seizure but the District Court denied his motion. Hodge

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now appeals that ruling.

                                                      II.

        We review a district court’s denial of a motion to suppress evidence for clear error as to the

underlying factual findings, and exercise plenary review over questions of law. United States v.

Coward, 296 F.3d 176, 179 (3d Cir. 2002). The postarrest search and seizure of a vehicle is not per

se violative of the Fourth Amendment. See McFadden v. United States, 814 F.2d 144, 147-48 (3d

Cir. 1987). We have previously stated that “[t]he authority of police to seize and remove from the

street vehicles impeding traffic or threatening safety and convenience is beyond challenge.” Id. (quoting

South Dakota v. Opperman, 428 U.S. 364, 369 (1976)). The FBI agent that drove Hodge’s car from

the site of the arrest to the federal building testified that officers had seen Hodge arrive, park, and exit

the car by himself. Only law enforcement personnel were available to remove the car from the street

where it was partially blocking traffic. As already noted, FBI policy under these circumstances is to

impound the vehicle, transfer it to a secure location, and inventory its contents.

        Hodge does not directly contest the validity of the warrant obtained by police to search the car.

Rather, he limits his challenge to the legality of impounding the vehicle. The gist of Hodge’s argument

on this point is that his case falls within the holding of United States v. Duguay, 93 F.3d 346 (7th Cir.

1996), a Seventh Circuit decision that recognized constitutional limits on law enforcement’s authority to

impound and inventory a vehicle upon the arrest of one of its occupants. But the defendant in that case

was a passenger; at the scene of his arrest both the car’s driver and defendant’s brother were present

and prepared to remove the vehicle. Indeed, even the Duguay Court acknowledged that “[t]he

decision to impound an automobile, unless it is supported by probable cause of criminal activity, is only

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valid if the arrestee is otherwise unable to provide for the speedy and efficient removal of the car from

public thoroughfares or parking lots.” Id. at 353. One such example of a permissible circumstance is

“where the driver is the sole occupant and is legitimately arrested.” Id. at 353 n.2. The facts of

Hodge’s case plainly are distinct from those in Duguay.

        Finally, Hodge’s claims that the FBI did not have a policy that called for impounding Hodge’s

vehicle, or that his circumstances were not covered by the policy, are contradicted by testimony

introduced at trial (and credited by the jury).

                                                  * * * * *

        As the District Court did not err in admitting evidence obtained from the seizure of Hodge’s car

and subsequent search of its contents, we affirm the judgment of the District Court.

TO THE CLERK:

        Please file the foregoing Opinion.




                                                    By the Court,




                                                    /s/ Thomas L. Ambro
                                                    Circuit Judge




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