                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2658
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota
Shane Michael Garner,                   *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 14, 1998

                                  Filed: June 28, 1999
                                   ___________

Before McMILLIAN, LAY and HALL,1 Circuit Judges.
                            ___________


McMILLIAN, Circuit Judge.

       Shane Michael Garner appeals from a final judgment entered in the United States
District Court2 for the District of Minnesota finding him guilty, pursuant to a


      1
        The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
      2
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, sitting by designation.
conditional guilty plea, of possession with intent to distribute methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The District court sentenced appellant
under the federal sentencing guidelines to 192 months imprisonment and five years
supervised release. See United States v. Garner, No. 97-352 (D.Minn. June 6, 1998).
For reversal, appellant argues that the district court erred in denying his motion to
suppress evidence because the search of his vehicle was not in fact an inventory search
but rather a warrantless investigative search for evidence of criminal activity. For the
reasons discussed below, we affirm the judgment of the district court.

                                     Jurisdiction

       Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231. The
notice of appeal was timely filed under Fed. R. App. P. 4(b), and jurisdiction on appeal
is proper based upon 28 U.S.C. § 1291.

                                     Background

       Appellant was charged with intent to distribute methamphetamine in violation
of 21 U.S.C. § 841 (a)(1) and (b)(1)(B). Appellant filed a motion to suppress evidence
and certain statements. After an evidentiary hearing, the magistrate judge3
recommended that appellant's motion to suppress be denied, and the District Court4
adopted the Magistrate Judge's findings in full. See id. (Feb. 19, 1998) (adopting the
magistrate judge's report and recommendation, id., (Jan. 14, 1998) (hereinafter "Report
and Recommendation")). The following statement of facts is based in large part on the


      3
      The Honorable John M. Mason, United States Magistrate Judge for the District
of Minnesota.
      4
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota ruled on the motion to suppress. The case was later referred tot
Judge Strom, who accepted the guilty plea and imposed sentence.
                                          -2-
magistrate judge’s report and recommendation. See Report and Recommendation at
1-7.

       On October 21, 1997, a confidential informant told Sergeant Gregory Lind of the
St. Paul Police Department’s narcotics/special investigations unit that appellant had
been seen at a bar in St. Paul in possession of methamphetamine and a large amount
of cash. On October 28, 1997, Lind saw appellant driving in St. Paul in a 1997 Chevy
vehicle. He recognized appellant because he had seen appellant in photographs and
interviewed appellant at the Lino Lakes Correctional Facility with respect to an
unrelated drug case. Lind, who was in an unmarked cruiser when he spotted appellant,
knew from a background and driver’s license check that appellant’s Minnesota driver’s
license had been revoked.

       After spotting appellant, Lind proceeded to follow him to a house in Oakdale.
Appellant pulled into the driveway and parked next to the house. Lind saw appellant
exit the vehicle and walk toward the house, but he was unable to see whether appellant
actually went inside the house or into a nearby garage. Lind was familiar with the
house because it belonged to another individual who had been under investigation for
methamphetamine distribution.

       After a few minutes, Lind saw appellant walk from the vicinity of the house back
to the rear of the Chevy vehicle. Appellant opened the trunk of the vehicle, looked
from side to side in a “suspicious manner,” and remained at the open trunk for a minute
or two. Appellant eventually closed the trunk and walked back in the direction of the
house. After several minutes, appellant returned to the vehicle and drove off. Lind
followed appellant as he drove toward St. Paul on Interstate 35. As appellant
approached an exit, Lind called for the assistance of St. Paul police squads to pull
appellant over. St. Paul police officer Herb Carlson responded. After appellant exited
the Interstate, he tried to evade police by speeding and driving through an apartment
complex’s parking lot. Appellant was eventually stopped by a police road block.

                                          -3-
       The St. Paul police officers approached with their guns drawn and Lind ordered
appellant out of the vehicle, conducted a pat-down search on appellant, and asked
appellant about the vehicle and insurance. Appellant stated that the vehicle belonged
to a friend. Lind instructed Officer Carlson to “tag” appellant for driving after
revocation of his license and decided that the vehicle should be towed and impounded
according to the City of St. Paul’s impound policy. St. Paul Department Policy
No. 445.151 states that prior to towing any vehicle, officers shall conduct an inventory
search of the vehicle in order to “(1) protect the vehicle owner’s property; (2) protect
the Department and City against disputes over lost or stolen property; and (3) protect
the officers and other employees from dangerous instrumentalities.” Id. The policy
also provides that the impoundment must be lawful and not a pretext to search a vehicle
where other grounds to search are lacking. An inventory search took place at the
scene, during which officers took pictures of items before they were seized. During the
search, Officer Carlson discovered methamphetamine under the driver’s seat of the
vehicle. Lind instructed Carlson to transport appellant to a holding cell at police
headquarters on charges of possession of a controlled substance.

       Sergeant Lind did not complete a specific inventory form to document the items
seized in the search. However, the vehicle’s contents were recorded in other ways.
First, a towing report listed some of the seized contents, including trash, cellular
phones, books, oil, clothing, and sports equipment. Second, Lind completed a
“property record,” which stated that the following were seized during the search: $280
in cash from appellant’s person, two cellular phones, a billfold, a small notebook, a
gram scale, a pager, and plastic sandwich bags. Furthermore, the photos taken during
the search supplemented the lists, revealing a pair of gloves and several packs of
cigarettes that were not listed.

      The magistrate judge concluded that the police had probable cause to stop the
vehicle, the pat-down search was lawful, and the search of the vehicle was a lawful

                                          -4-
inventory search. The magistrate judge found that Lind decided to impound the vehicle
because (1) appellant was alone in the vehicle, (2) his driver’s license had been
revoked, (3) the vehicle was in a no-parking zone, (4) it was on a busy street near rush
hour, (5) it was in a high-crime area, (6) the vehicle was valued at approximately
$15,000, (7) it was unclear whether the vehicle had been stolen or whether appellant
had permission to drive the vehicle, (8) Lind and the City of St. Paul were responsible
for the vehicle, and (9) neither appellant nor Lind could drive the vehicle. See Report
and Recommendation at 4. The magistrate judge specifically rejected appellant’s
argument that the inventory search was a pretext for an impermissible investigative
search. See id. at 7.

                                      Discussion

       For reversal, appellant argues that the district court erred in denying his motion
to suppress because the search was not an inventory search, but rather a warrantless
investigative search for evidence of criminal activity. First, appellant argues that the
police did not act in good faith for the administrative purpose of conducting an
inventory search; rather, the inventory search was a pretext for searching his vehicle
for evidence of drugs. Second, appellant argues that the police officers’ failure to
produce an inventory list demonstrates their unlawful motive for conducting the search
and that they failed to comply with the St. Paul policy.

      We review questions of law de novo and findings of fact for clear error. See
United States v. Beatty, 170 F.3d 811 (8th Cir. 1999); Ornelas v. United States, 517
U.S. 690, 698-99 (1996).




                                           -5-
                                        Pretext

      Appellant first argues that the inventory search was invalid because it was
conducted for the ulterior motive of searching for evidence of drug trafficking.
Appellant alleges that the police officers acted in bad faith because the true reason for
the search was investigative and that the inventory search was merely a pretext to
achieve this otherwise impermissible goal.5 We disagree.

        The presence of an investigative motive does not invalidate an otherwise valid
inventory search. See, e.g., United States v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993),
cert. denied, 511 U.S. 1111 (1994); see also United States v. Marshall, 986 F.2d 1171,
1176 (8th Cir. 1993) (holding police are not precluded from conducting an inventory
search when they lawfully impound the vehicle of an individual they also suspect to be
involved in crime). In this case, the police possessed valid reasons to impound the
vehicle, which under the St. Paul impound policy, required an inventory search prior
to impoundment. These reasons included: the vehicle was in a no parking zone on a
busy street, it was worth more than $15,000, it was in a high-crime area, and the City
of St. Paul was responsible for its protection. The fact that the officers also suspected
appellant was involved in drug trafficking and might have evidence of such activity in
the vehicle does not invalidate the officers' decision or demonstrate they acted in bad
faith. See Marshall, 986 F.2d at 1176.




      5
        Appellant likens his case to United States v. Castro 129 F.3d 752 (5th Cir.
1997), where the Fifth Circuit invalidated an inventory search on the ground that it was
actually conducted for investigatory purposes. However, since briefing of this case, the
Fifth Circuit reversed Castro en banc. United States v. Castro,166 F.3d 728, (5th Cir.
1999) (en banc) (per curiam). Accordingly, we will not analyze the application of
Castro’s reasoning to this case.
                                           -6-
                        Failure to produce an inventory list

       Appellant next argues that the police officers’ failure to produce an “inventory
list” of the vehicle’s contents demonstrates that their true goal was not to protect
appellant’s property and limit the City's liability, but to find evidence of drug
trafficking. Appellant argues that this violation of department procedures proves the
pretextual nature of the search and renders it invalid. Again, we disagree.

       St. Paul’s impound policy does not require that the results of an inventory search
be listed on a specific form nor that the inventory search be conducted in a particular
manner. Regarding the manner to conduct an inventory search, Policy 445.151 only
states that an inventory search shall be conducted prior to towing to the impoundment
lot and that officers are permitted to search inside any container discovered if the
officers are unable to ascertain its contents by examining its exterior. See Policy
445.151. The district court found, and we agree, that the police officers complied with
these requirements when they conducted the inventory search of appellant’s vehicle.
See Report and Recommendation at 7. Furthermore, at the evidentiary hearing on
appellant’s motion to suppress, Lind testified that St. Paul police generally only record
valuable items discovered during an inventory search. This is why the “property
record” included money, cellular phones, and drug paraphernalia, and why the only
items that appear in the photos but not on either list were gloves and cigarettes. Since
neither the city policy nor the police procedures required the officers to record all items
recovered during the inventory search on a specific form or in a particular fashion, the
officers’ failure to draft an inventory list does not prove the search was pretextual or
that they acted in bad faith. See, e.g., United States v. Loaiza-Marin, 832 F.2d 867,
869 (5th Cir. 1987) (failure to complete the inventory forms does not invalidate an
otherwise valid inventory search).




                                            -7-
                                     Conclusion

       Since the inventory search of appellant’s vehicle was valid and the district
court’s finding that the police acted in good faith in executing the City of St. Paul’s
inventory policy is not clearly erroneous, we affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -8-
