     Case: 11-20163     Document: 00511826032         Page: 1     Date Filed: 04/18/2012




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

                                                                            FILED
                                                                           April 18, 2012

                                       No. 11-20163                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

ALEXANDER FRANK MCKINNON,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                       for the Southern District of Texas,
                                Houston Division
                                 4:10-CR-00367


Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
        In February 2010, Houston Police Officer Salam Zia (“Zia”) stopped a
vehicle driven by Alexander Frank McKinnon (“McKinnon”), a felon, for an
expired registration sticker. After McKinnon failed to produce a driver’s license
upon request, Zia placed him under arrest. Based on the Houston Police
Department’s (“HPD”) towing policy, Zia ordered the vehicle to be towed and
conducted an inventory search of the vehicle. During the inventory search, Zia


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-20163

discovered a loaded revolver under the driver’s side seat. Thereafter, McKinnon
was indicted for being a felon in possession of a firearm and ammunition, in
violation of 8 U.S.C. §§ 922(g)(1) and 924 (a)(2).
      Prior to trial, McKinnon moved to suppress the revolver and certain pre-
Miranda statements. At the conclusion of the suppression hearing, the district
court suppressed McKinnon’s pre-Miranda statements, but found that the
revolver and ammunition were admissible.             Based on the district court’s
findings, McKinnon pleaded guilty to being a felon in possession of a firearm and
ammunition, but reserved his right to appeal the district court’s denial of his
motion to suppress with respect to the firearm and ammunition. The district
court subsequently sentenced McKinnon to thirty months imprisonment.
McKinnon now appeals.
               FACTS AND PROCEDURAL BACKGROUND
      On the morning of February 24, 2010, Zia was patrolling a Houston, Texas
neighborhood where a series of burglaries had taken place. At approximately
8:45 a.m., Zia drove past a vehicle traveling in the opposite direction whose
registration sticker appeared to have been expired. The vehicle was occupied by
three male subjects: McKinnon, the driver; Oramand Higgins (“Higgins”), the
front-seat passenger; and Matthew Momoh (“Momoh”), the backseat passenger.
Zia then made a U-turn and followed the vehicle for a few blocks before
initiating a traffic stop.
      As Zia approached the driver’s side of the vehicle he asked McKinnon to
roll down his window. Instead, McKinnon opened the driver’s side door and
explained that the window did not work. As McKinnon was explaining that his
window did not work, Zia observed that McKinnon’s hands were shaking and
that he was stuttering. Zia then asked McKinnon for his driver’s license or
operator’s license.    McKinnon responded that he did not have either, but
informed Zia that his name was “Alex McKinney.” Zia then returned to his

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                                      No. 11-20163

patrol car and entered “Alex McKinney” into his computer. When Zia’s query
failed to generate any search results for “Alex McKinney,” Zia ran a search of the
license plate number. This query revealed that the vehicle was not registered
to “Alex McKinney.” This led Zia to believe that McKinnon was providing false
information. Based on this information, Zia decided that he was going to arrest
McKinnon for failing to provide a Texas driver’s license upon demand, a Class
C misdemeanor. Pursuant to HPD’s towing policy, Zia decided to have the
vehicle operated by McKinnon towed as a “nonconsent tow.”1
      Prior to McKinnon’s arrest, HPD Officer John Terry (“Terry”) arrived on
the scene. Zia gave Terry a brief description of what had occurred and asked
Terry to assist him by watching Higgins and Momoh while he conducted an
inventory search. Terry then approached the passenger side of the vehicle and
asked Higgins and Momoh to exit the vehicle and stand on the sidewalk.
      Once McKinnon was arrested and placed in Zia’s patrol car, Zia began his
inventory search of the vehicle. Zia began to inventory search near the driver’s
seat where he discovered a loaded revolver wedged between the driver’s seat and
the seat adjustment controls. After taking possession of the revolver, Zia walked
back to his patrol car and asked McKinnon, “Were you going to shoot me with
it?” McKinnon responded in the negative, and told Zia that he had the gun for
protection. By this time, the tow truck had arrived on the scene and was in


      1
          A “nonconsent tow” is defined as,

      [a]ny tow of a motor vehicle from a police scene by a contract auto wrecker
      operator as authorized by a peace officer. This includes tows in which the
      vehicle owner is unwilling or unable to designate a tow operator to remove the
      vehicle, and an officer determines that no other authorized person is present
      and able to remove the vehicle. This also includes, but is not limited to,
      instances in which the vehicle is abandoned, stolen, being operated by a person
      who is the subject of a custodial arrest, or otherwise subject to towing under
      police authority.

HOUS. POLICE DEP'T GEN. ORDER NO. 600-10 (issue date July 29, 2008).

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                                      No. 11-20163

position to tow the vehicle. After Zia completed his inventory search, the tow-
truck driver removed the vehicle from the scene.
       On June 9, 2010, McKinnon was indicted on one count of being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2).     Subsequently, McKinnon filed his motion to suppress the
revolver and ammunition and any pre-Miranda statements he may have made.2
       On November 17, 2010, the district court held a suppression hearing.
During this hearing, Zia and Terry recounted their version of the incident.
Specifically, Zia testified,
       the reason why I decided to the write the report for not having an
       operator's license was because I believed that he was providing me
       with false information, and at that point I thought there could have
       been some other – you know, maybe, possibly, some evidence in the
       vehicle. So, I arrested him and, subsequent to that, inventoried the
       vehicle.
       In response to a question regarding his suspicion that there may have
been evidence in the vehicle, Zia testified, “I suspected that there was more to
the story.” Although Zia stated that he did not have enough facts to form the
opinion that McKinnon, Higgins, and Momoh were “casing” houses to
burglarize, Zia testified that he did suspect such after running a computer
search of Higgins and Momoh, which revealed that Higgins had a history of
burglary. In fact, Zia stated, “Could they have been casing houses? Sure, they
could have, but I didn’t put that in the report.”
       Based on the testimony, McKinnon argued that Zia’s inventory search
violated his Fourth Amendment rights because (1) the inventory search was
merely a pretext for searching for evidence related to the burglaries that had
recently taken place in the neighborhood where McKinnon was stopped; and (2)


       2
        Because McKinnon does not challenge the district court’s findings with respect to his
pre-Miranda statements, we will not discuss them below.

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the inventory search was conducted pursuant to a policy that provided HPD
officers with impermissible discretion in deciding when to tow a vehicle. The
district court, unpersuaded by McKinnon’s argument, denied his motion to
suppress the revolver and ammunition.
      McKinnon pleaded guilty to one count of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).
Pursuant to his plea agreement, however, McKinnon reserved the right to
appeal the district court’s denial of his motion to suppress. The district court
sentenced McKinnon to thirty months imprisonment. He appealed.
                          STANDARD OF REVIEW
      When reviewing a district court’s denial of a defendant’s motion to
suppress, we accept as true the district court’s factual findings unless clearly
erroneous and we consider all questions of law de novo. United States v. Gomez,
623 F.3d 265, 268 (5th Cir. 2010). “A factual finding is not clearly erroneous as
long as it is plausible in light of the record as a whole.” Id. (internal quotation
marks and citation omitted).      The evidence and inferences therefrom are
reviewed in the light most favorable to the Government as the prevailing party.
Id. Because we are asked to consider a warrantless search and seizure, the
government bears the burden of proving, by a preponderance of the evidence,
that the search and seizure were constitutional.” United States v. Guerrero-
Barajas, 249 F.3d 428, 432 (5th Cir. 2001).
                                 DISCUSSION
      On appeal, McKinnon challenges the district court’s denial of his motion
to suppress the firearm and ammunition discovered during an inventory search
of the vehicle he was driving. Specifically, McKinnon argues that the HPD’s
towing policy affords officers unconstitutional discretion in deciding when to tow
a vehicle as a nonconsent tow. McKinnon further claims that Zia’s inventory
search of the vehicle was unconstitutional because it was a purposeful and

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                                       No. 11-20163

general means of discovering evidence, in violation of the Fourth Amendment.
In sum, McKinnon maintains that Zia had complete discretion in deciding
whether to tow, leave the vehicle parked, or permit another to leave with it.
Those options, he argues, afforded Zia unconstitutional discretion in deciding
whether to inventory.3
A. The Impound
       The Fourth Amendment protects “the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. CONST. amend. IV. “Warrantless 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). One such exception
that courts have recognized is the “community caretaking” exception. See United
States v. Castro, 166 F.3d 728, 734 (5th Cir. 1999) (en banc); United States v.
Smith, 522 F.3d 305, 315 (3d Cir. 2008); United States v. Proctor, 489 F.3d 1348,
1353 (D.C. Cir. 2007); United States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006);
United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004).
       The origin of the community caretaking exception is found in the United
States Supreme Court’s decision in South Dakota v. Opperman, 428 U.S. 364
(1976). In Opperman, the Court noted that impoundments by the police may be
in furtherance of “public safety” or “community caretaking functions,” such as
removing “disabled or damaged vehicles,” and “automobiles which violate
parking ordinances, and which thereby jeopardize both the public safety and the
efficient movement of vehicular traffic.” Id. at 368 (internal citation omitted).
The Court further noted that the “authority of police to seize and remove from




       3
         It should be noted that "the decision to impound is properly analyzed as distinct from
the decision to inventory.” United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996) (citing
Cardwell v. Lewis, 417 U.S. 583, 593 (1974)).

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the streets vehicles impeding traffic or threatening public safety and
convenience is beyond challenge.” Id. at 369.
      Approximately ten years after Opperman, the Court again touched on the
subject of a police officer’s decision to impound a vehicle in Colorado v. Bertine,
479 U.S. 367 (1987). Interpreting Opperman, the Court stated:
      [n]othing in Opperman [ ] 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. Here, the discretion afforded the Boulder police
      was exercised in light of standardized criteria, related to the
      feasibility and appropriateness of parking and locking a vehicle
      rather than impounding it.
Bertine, 479 U.S. at 375.
      Since Opperman and Bertine, we have focused our inquiry on the
reasonableness of the vehicle impoundment for a community caretaking purpose
without reference to any standardized criteria. See Castro, 166 F.3d at 734
(impoundment of vehicle “permissible so long as it was carried out in furtherance
of a community caretaking function.”); United States v. Ponce, 8 F.3d 989, 996
(5th Cir. 1994) (applying community caretaking exception without reference to
standard criteria); United States v. Staller, 616 F.2d 1284, 1289-90 (5th Cir.
1980) (recognizing and applying community caretaking exception).                   In
considering whether this exception applies, our constitutional analysis hinges
upon the reasonableness of the “community caretaker” impound viewed in the
context of the facts and circumstances encountered by the officer. See Cooper v.
California, 386 U.S. 58, 59 (1987) (“whether a search or seizure is unreasonable
within the meaning of the Fourth Amendment depends upon the facts and
circumstances of each case.”).
      The Government contends that the decision to impound was reasonable
under the Fourth Amendment because: (1) it reduced Zia’s exposure to liability
for lost or stolen items; (2) leaving the vehicle locked and parked presented a

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                                     No. 11-20163

risk of theft or vandalism; and (3) the vehicle could not lawfully be driven away
from the scene. Because nothing in Opperman suggests that limiting an officer’s
liability is in any way related to purposes of the community caretaking
exception, this consideration is irrelevant. We have recognized, however, that
an appreciable risk of theft or vandalism may support an officer’s decision to
impound a vehicle. See Ponce, 8 F.3d at 996; Staller, 616 F.2d at 1289-90.
      In this case, Zia’s decision to impound the car was reasonable under the
Fourth Amendment. It is undisputed that the neighborhood in which the stop
occurred had experienced a series of burglaries. Although these were house
burglaries, there is nothing to suggest that the vehicle would not have been
stolen or vandalized if left parked and locked at the scene. By impounding the
vehicle, Zia ensured that the vehicle was not left on a public street where it could
have become a nuisance, and where it could have been stolen or damaged. Thus,
Zia’s conduct falls within the community caretaking function.
      McKinnon further contends that Zia should have released the vehicle to
Momoh because he had a valid driver’s license. Nevertheless, when viewed in
the light most favorable to the Government, the evidence does not compel such
a conclusion. Although Momoh possessed a valid driver’s license there is no
evidence that he had valid insurance coverage for the vehicle that would allow
Momoh to legally drive the vehicle from the scene. In addition, the vehicle’s
registration sticker was expired. Pursuant to Texas Transportation Code §
502.472, “a person commits an offense if the person operates a motor vehicle that
has not been registered . . . .” Thus, the vehicle operated by McKinnon could not
lawfully be driven away from the scene.
      Furthermore, it is undisputed that the vehicle was registered to Brandy
Toler (“Toler”).4 According to the HPD towing policy, a nonconsent tow “includes

      4
         The record is devoid of any information regarding who Brandy Toler is other than
that she is the owner of the vehicle that McKinnon was driving on the morning of the stop.

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                                  No. 11-20163

tows in which the vehicle owner is unwilling or unable to designate a tow
operator to remove the vehicle, and the officer determines that no other
authorized person is present an able to remove the vehicle.” HOUS. POLICE DEP'T
GEN. ORDER NO. 600-10 (issue date July 29, 2008). It is clear that Toler, the
vehicle owner, was not present to designate a tow operator. And, even assuming
that Toler entrusted her vehicle to McKinnon, there is nothing in the record to
suggest that Toler also entrusted her vehicle to Momoh, Higgins, or anyone else
for that matter. Therefore, viewing the evidence in the light most favorable to
the Government, Zia’s decision to impound the vehicle was reasonable under the
Fourth Amendment.
B. The Inventory
      According to McKinnon’s second point of contention, he argues that Zia’s
inventory search of the vehicle was unconstitutional under the Fourth
Amendment because it was a purposeful and general means of discovering
evidence.   Indeed, “an inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence.” Florida v. Wells, 495
U.S. 1, 4 (1990). “In order to prevent inventory searches from concealing such
unguided rummaging, [the] Supreme Court has dictated that a single familiar
standard is essential to guide police officers, who have only limited time and
expertise to reflect on and balance the social and individual interests involved
in the specific circumstances they confront.” United States v. Lage, 183 F.3d 374,
380 (5th Cir. 1999) (quoting United States v. Walker, 931 F.2d 1066, 1068 (5th
Cir.1991) (internal quotation marks omitted)).
      “Thus, an inventory search of a seized vehicle is reasonable and not
violative of the Fourth Amendment if it is conducted pursuant to standardized
regulations and procedures that are consistent with (1) protecting the property
of the vehicle’s owner, (2) protecting the police against claims or disputes over
lost or stolen property, and (3) protecting the police from danger.” Lage, 183

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F.3d at 380 (citing United States v. Hope, 102 F.2d 114, 116 (5th Cir. 1996)).
These standardized regulations and procedures must “sufficiently limit the
discretion of law enforcement officers to prevent inventory searches from
becoming evidentiary searches.” United States v. Andrews, 22 F.3d 1328, 1336
(5th Cir. 1994) (citation omitted).
      Pursuant to the HPD towing policy,
      Whenever an officer authorizes a nonconsent tow of a prisoner's
      vehicle, the officer will personally conduct an inventory of items in
      the vehicle including any and all containers not secured by a lock,
      and will complete a wrecker slip. A detailed inventory list will be
      written on the wrecker slip. Officers must be specific in identifying
      inventoried items. General terms such as "miscellaneous property"
      will not be used.
HOUS. POLICE DEP'T GEN. ORDER NO. 600-10 (issue date July 29, 2008).
      McKinnon does not contend that Zia did not follow this policy. We are
therefore faced with considering only the adequacy of the policy itself. Relying
upon the three considerations set forth in Lage, supra., we conclude that the
policy is constitutionally adequate. By its clear terms, the policy is consistent
with preserving the property of the vehicle's owner, ensuring that the police
protect themselves against claims or disputes over lost or stolen property, and
protecting the police from danger. Moreover, its limitation on the types of
containers that can be searched helps prevent an inventory search from
becoming an evidentiary search. Though a slight constraint on the exercise of
an officer's discretion, a limitation on the types of containers that can be
searched during an inventory search deprives officers of the "uncanalized
discretion" that the Supreme Court has found constitutionally deficient. See
Wells, 495 U.S. at 4. Because the inventory search in this case was conducted
pursuant to this constitutionally adequate policy, it was reasonable and thus
does not violate the Fourth Amendment. Lage, 183 F.3d at 380. The district
court, therefore, did not err in denying McKinnon's motion to suppress.

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      In this case, McKinnon fails to develop any persuasive reasons for
reversing the district court's judgment. He does, however, raise one issue that
warrants brief mention. McKinnon argues that Zia's subjective motivation in
conducting the search renders the inventory search invalid under the Fourth
Amendment. In light of well-established case law:
      the reasonableness inquiry under the Fourth Amendment is an
      objective one, wholly divorced from the subjective beliefs of police
      officers. [S]o long as police do no more than they are objectively
      authorized and legally permitted to do, their motives in doing so are
      irrelevant and hence not subject to inquiry.
Castro, 166 F.3d at 734 (internal citations and quotation marks omitted). See
also Whren v. United States, 517 U.S. 806, 813 (1996) (reading its precedent as
"foreclos[ing] any argument that the constitutional reasonableness of traffic
stops depend on the actual motivations of the individual officers involved");
United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc) ("[S]o long
as police do no more than they are objectively authorized and legally permitted
to do, their motives in doing so are irrelevant and hence not subject to inquiry.").
Although Zia may have had an ulterior motive to search the vehicle, the
inventory search was reasonable, and thus, remained valid under the Fourth
Amendment.
                                 CONCLUSION
      For these reasons, the district court's denial of McKinnon's motion to
suppress is AFFIRMED. Thus, McKinnon’s motion for bond pending appeal or,
in the alternative for expedited appeal is DENIED.




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