                                 In The
                            Court of Appeals
                   Seventh District of Texas at Amarillo

                                  No. 07-11-00481-CR


                      DWAYNE HARLAN CAMP, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 108th District Court
                                  Potter County, Texas
              Trial Court No. 62,035-E, Honorable Leland Waters, Presiding

                                 December 19, 2013

                          MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      A police officer conducting an inventory of the contents of appellant Dwayne

Harlan Camp’s vehicle discovered methamphetamine, in an amount less than one

gram, in a container inside his backpack.      Camp was charged by indictment with

possession of the substance.1    The trial court denied Camp’s motion to suppress,


      1
         See TEX. HEALTH & SAFETY CODE ANN. § 481.102(c) (West 2010) (classifying
methamphetamine as a penalty group 1 drug); TEX. HEALTH & SAFETY CODE ANN. §
481.115(a),(b) (West 2010) (providing possession of a penalty group 1 drug weighing
less than one gram is a state jail felony).
accepted his plea of guilty, and sentenced him according to the State’s punishment

recommendation to confinement in a state jail for eighteen months and a fine of $500.

Camp preserved the right to appeal the denial of his motion to suppress. Based on the

record in this case, we will reverse the judgment of the trial court and remand the case

for proceedings consistent with this opinion.


                                       Background


      The testimony at the hearing on Camp’s motion to suppress came from two

Amarillo police officers. One officer testified that while on patrol about noon, he saw a

pickup being driven with an expired inspection sticker and no windshield registration

decal. The officer pulled behind the pickup and activated his emergency lights. The

driver, Camp, did not immediately pull over but continued traveling a block or more

before he made a turn and then pulled into a residential driveway. The location was not

Camp’s residence.


      Camp was alone in the pickup. The officer testified Camp was shaking and

appeared too nervous for a routine traffic stop.     The officer “suspected there was

something going on.” He placed Camp in handcuffs so “he wouldn’t want to fight or run

or anything like that.” “[S]uspecting [there was] narcotics use going on” the officer

obtained permission to search Camp’s person. He found nothing of concern. When

asked why he did not stop as directed, Camp told the officer he did not want the pickup

impounded.


      The officer placed Camp in the back seat of his patrol car. The information check

revealed that Camp’s driver’s license was suspended. The officer believed Camp also


                                            2
had committed the traffic offenses of operating a motor vehicle with an expired

inspection sticker, failing to display a windshield registration decal, failing to possess

proof of liability insurance, and displaying a “fictitious” license plate on the vehicle.2 The

pickup was registered to Kenneth Jenkins, who was not present. At an unspecified

point during the stop, Camp told the officer “he had been using drugs earlier.” No

evidence elaborates on this statement.


       The officer decided to arrest Camp for the traffic violations and impound the

pickup. The officer testified that the occupant of the residence where Camp parked

gave permission to leave the vehicle in the driveway, but the officer concluded this offer

was not acceptable.      The bed of the pickup contained Camp’s tools which, at his

request, were released to the occupant of the residence.


       A second officer arrived at the scene. He also testified to Camp’s agitated state.

The officer inventoried the contents of the pickup’s interior. Inside a backpack sitting on

the passenger side floorboard, he found an eyeglasses case. Opening the case, the

officer found a plastic baggie containing a “crystal-like substance” later determined to

contain methamphetamine.


       At the conclusion of the hearing, the trial court stated on the record several

findings. The court found that the officers had no reasonable alternative but to inventory

the pickup, the written inventory policy expressed the department’s “acceptance of

responsibility” for the contents of a vehicle and the property disposition, the inventorying

officer did not abuse his discretion and in this respect did not exercise excessive latitude

       2
         During the stop the officer learned the license plate on the pickup was not
registered to that vehicle.

                                              3
or conduct a subterfuge, and any deviation from policy was insignificant. The court

concluded Camp’s constitutional rights were not violated.


                                          Analysis


       In his second issue, Camp asserts the trial court erred by determining that the

police properly impounded and inventoried his vehicle. Because we find it dispositive of

the appeal, we begin with his challenge to the lawfulness of the inventory of the

vehicle’s contents.


       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In so

doing, we give “almost total deference to [the] trial court’s determination of the historical

facts that the record supports especially when the trial court’s fact findings are based on

an evaluation of credibility and demeanor.” Fienen v. State, 390 S.W.3d 328, 335 (Tex.

Crim. App. 2012) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997)). We view the record evidence and all reasonable inferences therefrom in the

light most favorable to the trial court’s ruling. State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008) (party prevailing in trial court is afforded “strongest

legitimate view of the evidence and all reasonable inferences”). We review de novo

questions of law and mixed questions of law and fact that do not depend on evaluation

of credibility and demeanor. Fienen, 390 S.W.3d at 335 (citing Montanez v. State, 195

S.W.3d 101, 106 (Tex. Crim. App. 2006)).             The State shoulders the burden of

establishing officers conducted a lawful inventory. See Gauldin v. State, 683 S.W.2d

411, 415 (Tex. Crim. App. 1984), overruled on other grounds by Heitman v. State, 815



                                             4
S.W.2d 681 (Tex. Crim. App. 1991); Evers v. State, 576 S.W.2d 46, 50 & n.5 (Tex.

Crim. App. 1978).


      The inventory of a lawfully seized vehicle is a settled exception to the Fourth

Amendment’s warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct.

738, 93 L.Ed.2d 739 (1987).         An inventory must be conducted “according to

standardized criteria or established routine.” United States v. Mundy, 621 F.3d 283,

287 (3d Cir. 2010) (citing Bertine, 479 U.S. at 374 n.6); see Florida v. Wells, 495 U.S. 1,

4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); South Dakota v. Opperman, 428 U.S. 364,

372, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (noting decisions finding inventories

conducted under standard police procedures to be reasonable).


      Requiring that inventories be conducted according to criteria or routine strikes a

balance between the State’s legitimate interests and the legitimate privacy expectations

of the owner.       United States v. Salmon, 944 F.2d 1106, 1120 (3d Cir. 1991).

Standardized criteria or established routine must limit police discretion as to, first,

whether to search the vehicle and, second, the scope of an inventory, especially with

regard to dealing with closed containers. Id. (citing Bertine, 479 U.S. at 375-76, 374 &

n.6; United States v. Frank, 864 F.2d 992, 1002-03, 1003 (3d Cir. 1988) and Wells, 110

S.Ct. at 1635; United States v. Bush, 647 F.2d 357, 370-71 (3d Cir. 1981)). Consistent

with the Fourth Amendment, police may open closed containers as part of the inventory

of an automobile, as long as they do so according to standard police procedures and as

long as they do not act in bad faith or for the sole purpose of investigation. See Wells,

495 U.S. at 4; Bertine 479 U.S. at 369 (search of closed backpack found in vehicle).

The Court in Wells elaborated:

                                            5
       Our view that standardized criteria . . . or established routine . . . must
       regulate the opening of containers found during inventory searches is
       based on the principle that an inventory search must not be a ruse for a
       general rummaging in order to discover incriminating evidence. The policy
       or practice governing inventory searches should be designed to produce
       an inventory. The individual police officer must not be allowed so much
       latitude that inventory searches are turned into “a purposeful and general
       means of discovering evidence of crime[.]”
Id. at 4 (citations omitted).


       The evidence includes a document, offered into evidence by Camp, apparently

from the Amarillo Police Department’s (APD) rules and regulations manual, containing

the reference “Procedures 2.29; Subject: Impound and release of impounded vehicles.”

It addresses the circumstances under which vehicles may be impounded and the

procedures to be followed.


       The document contains a paragraph headed “Inventory,” which reads, in its

entirety, “Officers are responsible for proper inventory of vehicle contents and

disposition of the impound stub.”        One of the officers, under cross-examination,

acknowledged that the written statement contains no guidance with regard to opening

closed containers during an inventory.


       The evidence in this record regarding the policy applicable to inventory of

Camp’s vehicle may thus be compared with that in Richards v. State, 150 S.W.3d 762

(Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (en banc). In that case, the appellate

court quoted and addressed a Houston police department inventory policy that similarly

required officers to inventory towed vehicles and complete the required paperwork. Like

the policy in evidence here, the court also noted the written Houston policy did not

“specifically provide whether officers were authorized to search locked trunks or closed


                                             6
backpacks.” Id. at 771.       But the court found evidence of an established routine

governing the opening of closed containers in the testimony of the officer who

performed the inventory.      That officer “testified that, although there was no written

guideline, he was trained to inventory any container he had access to, including a

locked trunk if he has the key for it.” Id.3


       Although the findings dictated into the record by the trial court do not express the

conclusion that the inventory performed by the officers here, including the opening of

Camp’s backpack and the eyeglass case within it, was conducted in accord with the

APD’s standard procedure or established routine, its conclusion to that effect is implied

in its denial of Camp’s motion to suppress. Because the written APD policy in evidence

here, like the written Houston policy in Richards, does not specifically address the

opening of closed containers, we look for other evidence of standardized criteria or

established routine governing officers’ conduct of inventories. Even attributing to this

record the “strongest legitimate view of the evidence and all reasonable inferences” in

support of the trial court’s ruling, State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.

Crim. App. 2008), we must conclude the record is lacking evidence that the Amarillo

police department has a standard policy, criteria or established routine governing the

opening of closed containers and that such a standard policy was followed by the

officers in this case.



       3
        See United States v. Como, 53 F.3d 87, 92 (5th Cir. 1995) (upholding inventory
search in the absence of a written policy and explaining “testimony regarding reliance
on standardized procedures is sufficient”); United States v. Thompson, 29 F.3d 62, 65
(2d Cir. 1994) (“The existence of . . . a valid [inventory search] procedure may be
proven by reference to either written rules and regulations or testimony regarding
standard practices”) (citations omitted).

                                               7
       In testimony both uncertain and contradictory, the officers struggled to express

that the APD has a policy or criteria governing the opening of closed containers like

Camp’s backpack and eyeglass container, and that they followed the policy. Based on

some of their statements, it might be argued the officers’ testimony reflects a

standardized APD procedure of opening all closed containers during an inventory. But

the officers never said as much.


       In its brief, the State characterizes the testimony as showing that “police

procedure included looking into containers as appropriate.” If that is the only criteria,

officers in the field are placed in the position of deciding which containers are

appropriately opened and which are not.4 Wells does not forbid policies or procedures

that grant officers some discretion.5 But it forbids such “uncanalized discretion.” Wells,

495 U.S. at 4.


       To demonstrate that the officers’ search of the interior of Camp’s backpack and

eyeglass container, without a warrant, was justified as part of a lawful inventory of the

vehicle’s contents, the State was required to show that their action was required by a

standardized criteria or established police routine. Wells, 495 U.S. at 4; Gauldin, 683

S.W.2d at 415. The Amarillo Police Department may have had in place a policy or

standardized criteria to guide an officer’s decision whether to open such a closed

       4
        Cf. Bertine, 479 U.S. at 375 (affirming principle that “a single familiar standard is
essential to guide police officers . . . .”) (citations omitted).
       5
        The Court in Wells quoted its statement from Bertine, 479 U.S. at 375: “Nothing
in [South Dakota v. Opperman, 428 U.S. 364 (1976), or Illinois v. Lafayette, 462 U.S.
640 (1983),] 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.” Wells, 495 U.S. at 3-4.


                                             8
container when inventorying a vehicle’s contents, but this record does not tell us so. 6

We disagree with the trial court’s application of the law to the facts depicted in this

record, and so conclude the court abused its discretion by failing to suppress the

contraband discovered inside the eyeglass container. We sustain Camp’s second issue

to the extent it challenges the lawfulness of the inventory of the vehicle he operated.

Review of the remainder of Camp’s second issue as well and his other issues is

unnecessary for final disposition of this appeal. Tex. R. App. P. 47.1.


                                       Conclusion


      The judgment of the trial court is reversed and the case remanded for

proceedings consistent with this opinion.




                                                James T. Campbell
                                                    Justice



Do not publish.




      6
        While also involving an inventory of a vehicle, our recent decision in Johnson v.
State, No. 07-11-00186-CR, 2013 Tex. App. Lexis 6268 (Tex. App.—Amarillo May 21,
2013, no pet.) (mem. op, not designated for publication), is distinguishable. In Johnson,
an officer inventorying the defendant’s vehicle opened the front seat console
compartment and saw baggies containing cocaine. Id. at *2. The defendant moved to
suppress the substance. No written police department inventory procedure was offered
in evidence at the suppression hearing, but an officer testified that his inventory,
including his action of opening the console compartment, was conducted according to
department regulations. Id. at *8-9.

                                            9
