                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1810
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Alauna Gaye Morris

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                          Submitted: November 16, 2018
                             Filed: February 8, 2019
                                 ____________

Before BENTON, BEAM, and ERICKSON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       Alauna Gaye Morris conditionally pled guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The
district court1 sentenced her to 120 months’ imprisonment. She appeals the denial of

      1
       The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa, adopting the report and recommendation of the
her motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

                                          I.

      In September 2016, Deputy Taylor of the Clay County Sheriff’s Office
(“CCSO”) stopped a recreational vehicle driven by Morris to execute an arrest
warrant. After the arrest, Deputy Taylor and another deputy impounded the RV.
During an inventory search, they found marijuana, two glass pipes, and a digital scale.
They did not complete the inventory, testifying it “didn’t seem reasonable to continue
searching” because parts of the RV were “inaccessible.” The next day, with a search
warrant, they found 69.5 grams of meth at her residence. The next week, with a
search warrant, they found 138 grams of meth and $9,500 in cash in the RV.

       Morris moved to suppress “all evidence and ‘fruits of the poisonous tree’
obtained as a result of the unlawful seizure and search” of her RV. After a
suppression hearing, the magistrate judge recommended denying the motion. The
district court adopted the magistrate’s findings and recommendation. Morris appeals,
arguing the inventory search was unlawful. Reviewing the denial of a motion to
suppress, this court reviews “legal conclusions de novo and factual findings for clear
error.” United States v. Woods, 747 F.3d 552, 555 (8th Cir. 2014). “A credibility
determination made by a district court after a hearing on the merits of a motion to
suppress is virtually unassailable on appeal.” United States v. Frencher, 503 F.3d
701, 701 (8th Cir. 2007) (internal quotation marks omitted).




Honorable Kelly K.E. Mahoney, United States Magistrate Judge for the Northern
District of Iowa.

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                                         II.

       Morris argues the government failed to prove the CCSO had a standardized
policy for impounding and inventorying vehicles. The record does not contain a copy
of the written policy because Morris objected to its admission at trial. However,
Deputy Taylor testified about it. According to him, since August 2015, the CCSO
has had a written policy about impounding and inventorying vehicles. It designates
four times a deputy may impound a vehicle: (1) abandonment; (2) accident; (3) driver
arrest; or (4) traffic hazard. The policy allows, but does not require, deputies to
release a vehicle to a registered, insured driver. It is CCSO practice to release
vehicles only to drivers present at the time of the stop.

      Once impounded, the policy requires deputies to inventory a vehicle’s contents,
including the trunk, for items valued at $25 or more. Although not written in the
policy, it is CCSO practice to inventory containers if deputies believe they may have
items valued at $25 or more. The policy requires deputies to complete a full
inventory unless unreasonable to do so.

       The absence of the written policy in the record does not preclude establishing
its content. “While a written policy may be preferable, testimony can be sufficient
to establish police impoundment procedures.” United States v. Betterton, 417 F.3d
826, 830 (8th Cir. 2005). Based on Deputy Taylor’s testimony, the magistrate judge
found that Deputy Taylor:

      [D]id follow the standardized criteria outlined in the written impound
      policy and the standard practices of the sheriff’s office. Deputy Taylor
      was forthright when he testified. He is familiar with the practices of the
      sheriff’s office, which were the same before and after the impound
      policy was written. I further credit Deputy Taylor’s testimony about the
      policy and practices in light of his years of service with the sheriff’s



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      office, his duties as a routine patrol deputy, and the fact that he
      impounds vehicles several times per week.

Adopting the magistrate’s findings, the district court added, “Regarding his
department’s policy, Taylor was unwavering that he knew that the arrest of the
vehicle driver and existence of a roadside hazard were two instances in which the
policy allows officers to impound a vehicle.” The district court did not err in finding
the CCSO had an impoundment and inventory policy.

                                         III.

       Morris next contends that either the deputies did not follow the policy or the
policy contained “impermissible, unfettered discretion.” “[A]n impoundment policy
may allow some latitude and exercise of judgment by a police officer when those
decisions are based on legitimate concerns related to the purposes of an
impoundment.” Id. (internal quotation marks omitted). The exercise of police
discretion is not prohibited “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.” Colorado v. Bertine, 479 U.S. 367, 375 (1987).

      The magistrate judge said:

      I find that Deputy Taylor followed the sheriff’s office’s policy in
      deciding to impound Defendant’s RV. Two conditions that allow for
      impoundment existed in this case: the driver had been arrested and there
      was no other available driver, and the RV posed a hazard. Each of these
      conditions serve legitimate law enforcement functions of community
      caretaking and providing for public safety.

This finding was not clear error.



                                         -4-
       Morris argues the deputies should have allowed her husband to pick up the
vehicle rather than impounding it. However, “[n]othing in the Fourth Amendment
requires a police department to allow an arrested person to arrange for another person
to pick up his car to avoid impoundment and inventory.” United States v. Agofsky,
20 F.3d 866, 873 (8th Cir. 1994). “Police may take protective custody of a vehicle
when they have arrested its occupants, even if it is lawfully parked and poses no
public safety hazard.” United States v. Arrocha, 713 F.3d 1159, 1163 (8th Cir. 2013).
While the deputies could have allowed Morris’s husband to pick up the RV, they
were not required to do so. The district court did not err in finding that “[g]iven the
fact that Morris was arrested alone in a rural area, Taylor’s decision to use his
discretion to impound the vehicle was legitimate and reasonable.”

       The district court also did not err in finding the deputies followed the inventory
policy without “impermissible, unfettered discretion.” “Inventory searches are one
of the well-defined exceptions to the warrant requirement of the Fourth Amendment.”
United States v. Frasher, 632 F.3d 450, 454 (8th Cir. 2011). “[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.” Bertine, 479 U.S. at 372. “The search must be reasonable in light of the
totality of the circumstances.” United States v. Beal, 430 F.3d 950, 954 (8th Cir.
2005).

       Once impounded, the policy requires deputies to inventory the contents of the
vehicle, including its trunk, for items valued at $25 or more. Consistent with the
policy, two deputies inventoried the RV, compiling a list of items. During the
inventory, they found marijuana and pipes in a closed sunglasses case, and a digital
scale in a purse. Morris believes the inventory was improper because the policy does
not address closed containers. This belief has no merit. Because the policy required
an inventory of the entire vehicle, it was reasonable for the deputies to open
containers believed to have items valued at $25 or more. See United States v.

                                          -5-
Wallace, 102 F.3d 346, 349 (8th Cir. 1996) (holding that a “policy requiring
inventory of the contents of a vehicle and any containers therein covers inventory of
locked trunks”); United States v. Como, 53 F.3d 87, 92 (5th Cir. 1995) (“Allowing
an officer to exercise his judgment based on concerns related to the objectives of an
inventory search does not violate the Fourth Amendment.”). As the magistrate judge
found, “the deputies acted reasonably in looking inside Defendant’s purse and the
glasses case as both items could have likely contained items worth more than
$25.00.” The district court did not err in finding the inventory search complied with
policy and was not unlawful.

       The decision to terminate the inventory also complied with policy. As Deputy
Taylor testified, the deputies “completed the inventory to the best of our ability.”
They terminated it not because they wanted to “apply for a search warrant,” but
because the back of the RV was a small, confined space, inaccessible due to the
thorny plants, which Morris had described as “exotic.” Rather than risk damaging the
plants, they decided not to proceed. The magistrate judge found this testimony
credible and “in line with the sheriff’s office’s inventory policy.” This was not clear
error.

      The district court did not err in finding the deputies followed policy, reasonably
exercising their discretion, when necessary, in impounding and inventorying the
vehicle.

                                          IV.

       Morris maintains the district court erred in finding that “following a
standardized policy excused the improper motive and subsequent search.” “The
police are not precluded from conducting inventory searches when they lawfully
impound the vehicle of an individual that they also happen to suspect is involved in
illegal activity.” United States v. Harris, 795 F.3d 820, 822 (8th Cir. 2015). “Rather,

                                          -6-
when police are conducting inventory searches according to such standardized
policies, they may keep their eyes open for potentially incriminating items that they
might discover in the course of an inventory search, as long as their sole purpose is
not to investigate a crime.” Id. (internal quotation marks omitted). “The search of
a vehicle to inventory its contents must nevertheless be reasonable under the totality
of the circumstances, and may not be ‘a ruse for a general rummaging in order to
discover incriminating evidence.’” United States v. Taylor, 636 F.3d 461, 464 (8th
Cir. 2011), quoting Florida v. Wells, 495 U.S. 1, 4 (1990) (internal citation omitted).
“The reasonableness requirement is met when an inventory search is conducted
according to standardized police procedures, which generally remove the inference
that the police have used inventory searches as a purposeful and general means of
discovering evidence of a crime.” Id. (internal quotation marks omitted). “Even if
police fail to adhere to standardized procedures, the search is nevertheless reasonable
provided it is not a pretext for an investigatory search.” Id. at 465.

       The policy required the deputies to inventory all items valued at $25 or more.
During the inventory, the deputies found incriminating evidence. Their suspicion
Morris was engaged in criminal activity does not establish that the sole purpose of the
search was investigative. See United States v. Pappas, 452 F.3d 767, 771 (8th Cir.
2006) (“A valid traffic stop cannot be challenged, as Pappas alleges here, on the basis
that the stop was actually a pretext for an investigation of another crime.”). The
district court did not err in finding that “Taylor was well within his department’s
policy to impound the vehicle for legitimate non-investigatory reasons.”

                                    *******

      The judgment is affirmed.
                     ______________________________




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