      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00258-CR



                                Ferrell Damon Scott, Appellant

                                                 v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 07-1335-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The State charged Ferrell Damon Scott with unlawful possession of a firearm by a

felon. See Tex. Penal Code Ann. § 46.04(a) (West 2011). A police officer pulled Scott over for

speeding and discovered that Scott was driving with a suspended license. The officer arrested Scott

for that offense and then, without obtaining a warrant, searched Scott’s car before impounding it.

The officer discovered two pistols in the trunk. Scott moved to suppress the evidence obtained

through the search, arguing that the search was not a lawful “inventory search” but rather an

unlawful “search incident to arrest.” The trial court denied Scott’s motion, and the jury convicted

Scott of the charged offense. Scott appeals his conviction, arguing that the trial court erred by

refusing to suppress the evidence obtained through the search of his car. For the following reasons,

we affirm the conviction.
                        FACTUAL AND PROCEDURAL BACKGROUND

                  On September 5, 2007, Georgetown police officer Matt Turowski pulled Scott over

after seeing him drive over the speed limit. Turowski determined that Scott was driving with a

suspended license and took Scott into custody for that offense.

                  After securing Scott in a patrol car, Turowski began the process of impounding

Scott’s car. Part of that process was to search Scott’s car to inventory its contents. Without

obtaining a warrant, Turowski searched the car and discovered two loaded pistols in the trunk.

Turowski testified at trial that as part of his search, and in accordance with standard Georgetown

Police Department operating procedure, he filled out an inventory form listing everything he found

in Scott’s car.

                  The State charged Scott with unlawful possession of a firearm by a felon. See id.

Before trial, Scott moved to suppress the evidence that Turowski discovered during the search of his

car. Scott argued that the search was not a lawful “inventory search,” but rather was an unlawful

“search incident to arrest.” The trial court denied Scott’s motion, and the parties proceeded to trial.

During trial, the State never introduced into evidence the inventory form that Turowski purportedly

filled out while searching Scott’s car. The State averred that the form had been “misplaced” after

being stored offsite.

                  Scott re-urged his motion to suppress evidence several times during the trial, and he

also made a running objection to the State’s presentation of evidence obtained through the search

of his car. The court overruled all of Scott’s motions and objections. The jury ultimately found

Scott guilty of the charged offense and sentenced him to fifty years’ incarceration. Scott appeals,

arguing that the trial court erred by admitting evidence obtained through the search of his car.

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                                    STANDARD OF REVIEW

                We review a ruling on a motion to suppress evidence for abuse of discretion.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). In doing so, we view the facts

in the light most favorable to the trial court’s decision. Id. We defer almost totally to the trial

court’s determination of historical facts and review de novo the court’s application of the law to

those facts. Id.


                                           DISCUSSION

                Scott argues that the trial court erred by admitting evidence obtained through the

search of his car. He argues that the search was not a lawful “inventory search” but rather was an

unlawful “search incident to arrest.”

                The Supreme Court has recently clarified the permissible scope of a vehicle search

incident to the arrest of a motorist:


        Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee
        is within reaching distance of the passenger compartment at the time of the search or
        it is reasonable to believe the vehicle contains evidence of the offense of arrest.
        When these justifications are absent, a search of an arrestee’s vehicle will be
        unreasonable unless police obtain a warrant or show that another exception to the
        warrant requirement applies.


Arizona v. Gant, 129 S. Ct. 1710, 1723-24 (2009). Scott was not within reaching distance of his

car when Turowski searched it, Scott’s car did not contain evidence of the offense of arrest

(namely, driving with a suspended license), and Turowski did not obtain a warrant to search the car.

Thus, the search was illegal unless the State showed that there was an applicable exception to the

warrant requirement.

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                  The State argued that there was such an exception—the “inventory search” exception.

See Colorado v. Bertine, 479 U.S. 367, 371 (1987) (inventory searches are well-defined exception

to warrant requirement of Fourth Amendment). An “inventory search” is a motor-vehicle search,

conducted as part of the impoundment process, that is designed to produce an inventory of a

vehicle’s contents. See Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.—Houston [1st Dist.]

2010, no pet.). Inventory searches have several legitimate purposes: to protect the vehicle owner’s

property while the vehicle is in custody, to protect the police against claims or disputes over lost or

stolen property, and to protect the police from potential danger. Id. To be legal, an inventory search

must be conducted in good faith and pursuant to reasonable, standardized police procedure. Id. The

State bears the burden of establishing that an inventory search was lawful. Id. It satisfies this burden

by demonstrating that (1) a reasonable inventory policy existed and (2) the searching officer followed

the policy. Id.

                  Scott argues that the State failed to demonstrate that Officer Turowski followed the

Georgetown Police Department’s inventory policy. He bases this argument on the fact that the State

never introduced into evidence the inventory form that Turowski purportedly filled out while

searching Scott’s car. Because the State failed to introduce the form into evidence, Scott argues, the

State failed to show that Turowski actually filled out the form as required by departmental policy.

                  Scott cites the case of State v. Stauder, 264 S.W.3d 360 (Tex. App.—Eastland 2008,

pet. ref’d), in which our sister court affirmed an order suppressing evidence obtained through an

inventory search. The Stauder court held that an inventory search was illegal because the searching

officers failed to fill out an inventory form in accordance with standard department policy:



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       Although the department had a written policy requiring that an inventory form be
       filled out, the officers failed to prepare an inventory list of the items located in
       Stauder’s pickup. Lamesa Chief of Police Richard Garcia testified that, by failing to
       complete the inventory sheet, his officers failed to follow departmental policy when
       they inventoried Stauder’s pickup.


Id. at 362. Here, in contrast, Officer Turowski testified that he did follow department policy by

filling out an inventory form. The State did not introduce the form into evidence, but it did not have

to; rather, Turowski’s testimony, if credible, was sufficient to establish that Turowski followed

department policy. See Gauldin v. State, 683 S.W.2d 411, 415 (Tex. Crim. App. 1984), overruled

on other grounds by Heitman v. State, 815 S.W.2d 681, 687 (Tex. Crim. App. 1991) (State could

have demonstrated inventory search was legal by presenting testimony that officers followed

standard departmental procedures in conducting search).

               The trial court explicitly stated that it found Turowski credible when he testified

that he filled out the inventory form. Scott acknowledges that the court relied on this credibility

finding in ruling that the inventory search was legal, and he also acknowledges that we defer to

rulings that rely on the evaluation of credibility. See Montanez v. State, 195 S.W.3d 101, 108-09

(Tex. Crim. App. 2006). He nevertheless seems to argue that the State had to introduce the inventory

form into evidence to demonstrate that Turowski complied with departmental policy. We disagree.

See Gauldin, 683 S.W.2d at 415. Turowski’s testimony was a sufficient basis for the trial court to

conclude that Turowski followed standard departmental policy in conducting the inventory search

of Scott’s car. Thus, the court did not err by ruling that the search was legal and that the evidence

it yielded was therefore admissible. See Moskey, 333 S.W.3d at 700. We affirm the conviction.



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                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: December 30, 2011

Do Not Publish




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