“Talk Nice, Think Mean” Works, But Will Inventory Policy Pass Muster?

by | May 25, 2020

United States v. Bradley, 2020 WL 2505114 (3rd Cir. 2020)

On a cold February morning, at just about 0200, an officer stopped on the side of the road saw Gary Bradley drive past at approximately 20 mph under the speed limit. Suspecting the driver could be impaired, the officer followed. Bradley accelerated and began to weave. The officer activated his emergency lights and Bradley pulled to the side of the road.

When the officer asked for Bradley’s license and registration, Bradley said his license had been suspended and he had been cited for driving with a suspended license a couple of times. The officer responded, “My man, I got bigger things to worry about, it’s almost the end of my shift,” and that they could “work through that” because it wasn’t “a big deal.” The officer told Bradley, “I’m going to bring you back to my car” to see if “I can cut you a break.” Bradley told the officer he had recently been sentenced to two and one-half years on a drug charge.

The officer questioned Bradley, seated in the patrol car, for approximately 10 minutes. He asked Bradley, “When’s the last time you’ve been cut a legitimate break, bro?” A second officer arrived and stood outside the window next to Bradley. The first officer shifted his casual conversation to more pointed questions about illegal activity. The court commented the officer’s tone was “remarkably solicitous.” Affirming that the officer knew to “talk nice, think mean,” the court quoted the officer’s comments: “Take a deep breath, bud, take a deep breath,” frequently calling him “bro,” “bud” and “my man.”

Whether the evidence is eventually admissible will be determined by whether the department has an effective impound and inventory policy and whether the policy provides for inspection of closed containers.

After Bradley told the officer there was cocaine in the trunk, the officer found a kilogram of cocaine in a backpack in the trunk. He arrested Bradley.

Bradley sought to have his admissions and the cocaine suppressed. He claimed the officer unlawfully prolonged the traffic stop and the questioning was part of an illegally extended detention. The trial court agreed and suppressed the evidence.

On appeal, the prosecution argued the cocaine would have been inevitably discovered during an impound and inventory. Pennsylvania law generally requires that a vehicle be impounded if the driver has a suspended license and towing is “in the interest of public safety.” Bradley argued the officer’s statements about cutting him a break showed that an impound was not inevitable. Moreover, even if the officer decided to impound the car, he still had discretion whether to search the trunk and open closed containers. Therefore, it was not inevitable the cocaine would be discovered.

The officer testified he never intended to allow Bradley to drive away on a suspended license; department procedure provided he impound and tow the car and make an inventory search, which would have revealed the cocaine. The trial court ruled that because the officer did not testify the department policy required an impound, it was merely speculative that there would have been an impound and subsequent inventory.

The court of appeals overruled the trial court, holding that it was more than speculative the officer would have impounded the car under the circumstances. However, rather than reverse the lower court decision, the appellate court remanded the case for additional evidence regarding the department policy on impound and towing. Whether the evidence is eventually admissible will be determined by whether the department has an effective impound and inventory policy and whether the policy provides for inspection of closed containers.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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