Marling v. Brown, No. 19-3077 (7th Cir. 2020)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Seventh Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Seventh Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Marling was arrested while driving his car. Police took an inventory. The trunk held a locked box. An officer opened the box with a screwdriver and found illegal drugs. Marling was armed, despite felony convictions. After unsuccessfully moving to suppress the box's contents, Marling received a 38-year sentence, as a habitual criminal. He filed an unsuccessful state court collateral attack, arguing that his lawyers furnished ineffective assistance by not arguing that opening the box damaged the box, in violation of police policy. The court of appeals found that the record did not establish damage to the box. A federal district court issued a writ of habeas corpus, ruling that a photograph showed damage to the box.
The Seventh Circuit reversed. A factual mistake by a state court does not support collateral relief unless a correction shows that the petitioner “is in custody in violation of the Constitution or laws or treaties” of the U.S. Not every departure from any policy violates the Fourth Amendment. The policy at issue states an officer “should avoid” opening a container when that would cause “unreasonable potential damage.” The policy is valid: it combines a presumptive rule of opening everything with a discretionary exception. Because the policy is valid, the search is valid. A district judge’s disagreement about whether the officer followed the local policy is not a sufficient ground for collateral relief.
Download PDF
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19-3077 RAYMOND MARLING, Petitioner-Appellee, v. FRANK LITTLEJOHN, Deputy Warden, Wabash Valley Correctional Facility, Respondent-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:19-cv-00002-JRS-DLP — James R. Sweeney II, Judge. ____________________ ARGUED APRIL 28, 2020 — DECIDED JULY 13, 2020 ____________________ Before EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges. EASTERBROOK, Circuit Judge. After Raymond Marling was arrested, on a warrant, while driving his car, police in Indiana took an inventory of its contents. The trunk held a locked box. An o cer opened the box with a screwdriver and found illegal drugs. Together with other evidence (including the fact that Marling was armed, despite felony convictions that made this unlawful), these drugs played a role 2 No. 19-3077 in his convictions and 38-year sentence, which includes a 20year enhancement for being a habitual criminal. Marling’s lawyer asked the trial court to suppress the contents of the box, arguing that opening it was improper. That argument lost in the trial court and lost again on appeal. Marling v. State, 2014 Ind. App. Unpub. LEXIS 1305 (Sept. 30, 2014). He led a collateral aeack, this time arguing that his trial and appellate lawyers had furnished ine ective assistance by not presenting the best reasons for objecting to the box’s opening. He contended that counsel should have argued that opening his box damaged it, violating the police department’s policy. The post-conviction court held a hearing, took evidence, and rejected this contention. The court of appeals a rmed, concluding among other things that counsel’s omission was not prejudicial because the record did not show that the box had been damaged. 2018 Ind. App. Unpub. LEXIS 610 (May 25, 2018). But a federal district court issued a writ of habeas corpus, 2019 U.S. Dist. LEXIS 163777 (S.D. Ind. Sept. 24, 2019), ruling that a photograph in the record shows damage to the box’s lock. This meant, the judge stated, that the state court’s nding had been rebueed by clear and convincing evidence. 28 U.S.C. §2254(e)(1). A factual mistake by a state court does not support collateral relief, unless a correction shows that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). Ine ective assistance of counsel su ces, because it violates the Sixth Amendment (applied to the states by the Fourteenth). Indiana has assumed that failure of counsel at trial and on appeal to choose the best argument in support of a motion can violate the Sixth Amendment, despite many cases holding No. 19-3077 3 that it is essential to evaluate counsel’s overall performance rather than nd a single error. See, e.g., Strickland v. Washington, 466 U.S. 668, 691–96 (1984); Williams v. Lemmon, 557 F.3d 534, 538–40 (7th Cir. 2009). Because Indiana has not made this potential argument we do not pursue it. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Still, it remains necessary to show that counsel’s decision was both substantively de cient and prejudicial. The state’s appellate court applied the Strickland standard, and our review of the outcome under §2254(d) has been called “doubly deferential”. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The district judge found both de cient performance and prejudice because Florida v. Wells, 495 U.S. 1 (1990), holds that the validity of an inventory search depends on the police department having a policy about when to take inventories. The judge read Wells to say that compliance with this policy is essential, which implies that a violation of a local policy also violates the Constitution. The judge read the local policy at issue to forbid damage to a container, which led him to nd a constitutional error, which counsel had failed to call to the state court’s aeention. We think that the judge has misunderstood both Wells and the local policy. Wells holds that a policy is important, but not because the Constitution demands that states suppress evidence acquired through violations of state or local rules. That possibility was rejected in Virginia v. Moore, 553 U.S. 164 (2008), among many other decisions. See also, e.g., Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (federal court may not issue a writ under §2254 based on an asserted error of state law). Wells explained why a policy maeers: 4 No. 19-3077 Our view that standardized criteria or established routine must regulate the opening of containers found during inventory searches is 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. The individual police o cer must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime. But in forbidding uncanalized discretion to police o cers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical “all or nothing” fashion. “[I]nventory procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” A police o cer may be allowed su cient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents o cers determine they are unable to ascertain from examining the containers’ exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. 495 U.S. at 4 (cleaned up). Thus “open all containers” is a valid policy. So is “exercise discretion”. What maeers is that there be some policy that makes the inventory something other than a search based on belief that it will turn up evidence of crime. The Justices did not suggest that every departure from any policy violates the Fourth Amendment. Suppose a local policy calls for opening a locked box with a hammer and chisel, while one o cer uses a lockpick instead. Or suppose a policy says that items are to be stored in evidence bags, while one o cer put them in boxes. Such depar- No. 19-3077 5 tures from a policy lack constitutional signi cance under the rationale of Wells. The North Vernon Police Department, whose o cers stopped Marling’s car and opened the box, has an inventory policy. Section 49.3.2 of General Order 49 provides: Inventory the contents of suitcases, boxes, and other containers. … Closed and/or Locked Containers - Inventory all closed or locked containers. If a situation exists that requires extreme measures (extensive time, manpower and equipment), and/or unreasonable potential damage to property, the o cer should avoid opening the container, but should document why the container was not opened. This says that all locked containers are to be opened and inventoried, though the o cer “should avoid” opening a container when that would cause “unreasonable potential damage” to property. The policy is valid under Wells: it combines a presumptive rule of opening everything with a discretionary (“should”) exception when the damage would be “unreasonable” in the o cer’s judgment. And because the policy is valid, the search is valid too. A federal judge’s disagreement with how an o cer exercises discretion under a local policy does not make a search unconstitutional in retrospect. See United States v. Cartwright, 630 F.3d 610, 616 (7th Cir. 2010). Any other understanding would amount to using the Constitution to enforce the details of local law, which Moore and many other decisions say is improper. It follows that the district judge’s disagreement with the state judiciary about whether the o cer followed the local policy is not a su cient ground for collateral relief. And, for what it is worth, we do not see a violation of the local policy. 6 No. 19-3077 The judge included in his opinion a picture showing some damage to the box’s lock. That was enough, he thought, to establish the policy’s violation, even though Marling did not draw this picture to the aeention of the state’s appellate court. Let us suppose that the judges should have examined the picture anyway. Still, the policy does not forbid all damage; it forbids unreasonable damage. This box was intact, and the lock could have been xed or replaced. Why was the damage “unreasonable”? The judge did not say. Then there is the discretionary language in the General Order. The judge apparently understood Wells to forbid the use of discretion, such as evaluating when a potential for damage would be “unreasonable”. Yet the principal holding of Wells is that discretion about inventory searches is compatible with the Fourth Amendment. The Justices wrote: Nothing in South Dakota v. Opperman, 428 U.S. 364 (1976), or Illinois v. LafayeLe, 462 U.S. 640 (1983), prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Wells, 495 U.S. at 3–4 (cleaned up), quoting from Colorado v. Bertine, 479 U.S. 367, 375 (1987). The o cer who opened and inventoried the contents of this box acted within the scope of discretion granted by General Order 49. As Wells requires, discretion under the policy is unrelated to beliefs about the container’s contents. If the o cer did too much (“unreasonable”) damage, that could have been the basis for a tort claim under state law. It is not a basis for a conclusion that the Fourth Amendment required the suppression of incriminating evidence. It follows that counsel did not violate the Sixth Amendment by omieing this line of argument. REVERSED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
