                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                         UNITED STATES COURT OF APPEALS                 June 13, 2013
                                                                    Elisabeth A. Shumaker
                                    TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 12-6273
 CODY ALLEN SITLINGTON,                             (D.C. No. 5:11-CR-00360-HE-1)
                                                             (W. D. Okla.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Cody Sitlington entered a conditional guilty plea to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 235 months of



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
imprisonment to be followed by five years of supervised release. He appeals from the

district court’s denial of his motion to suppress. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm.

                                              I

       On the night of October 10, 2011, Officer Dustin Spiwak and Corporal Kimberly

Dibble of the Shawnee Police Department were on duty when they heard a be-on-the-

lookout call for a dark gray Toyota pickup truck traveling at a high speed. Later, this

same truck drove towards them, head on. The officers activated their patrol car’s

emergency overhead lights, at which point the truck changed lanes, passed the officers,

and ultimately stopped. When the officers approached the truck, they came into contact

with the driver, Cody Sitlington. Sitlington’s speech was slurred and he had trouble

comprehending what Corporal Dibble was asking him. When asked if he had consumed

alcohol, Sitlington said he had not, but admitted he had taken Xanax earlier that night.

The officers placed Sitlington under arrest for driving under the influence of narcotics.

       After placing Sitlington under arrest, the officers impounded the truck as Sitlington

could not drive it and it needed to be removed from the roadway. As is the Department’s

routine procedure after a vehicle is impounded, the officers conducted an inventory

search. Officer Spiwak began to inventory the truck from the front to the back of the

truck, and he filled out a Shawnee Police Department inventory form regarding the

contents of the truck. In the cab of the truck, Officer Spiwak found packages of

controlled dangerous substances, a rifle case, and spotlights. In the bed of the truck,

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Officer Spiwak found a locked toolbox. The key to the toolbox was located on the key

ring of the ignition, and Officer Spiwak used the key to unlock the toolbox. Inside the

toolbox, he found a Sig Sauer rifle, which he immediately seized.

       Officer Spiwak did not write down every single item that he found in the truck.

The inventory form that Officer Spiwak filled out listed the following items:

                2 spotlights
                Rifle Scope SIN STM432G
                Stanley Tool Kit 201 pc
                2 Gun cases
                misc household items
                knife (SOG)
                misc chemicals & beakers from tool box

Aplt. App. at 152.

       It was Officer Spiwak’s failure to take a more detailed tally of the truck’s contents

that gave rise to Sitlington’s challenge of the search. Sitlington filed a motion to suppress

with the district court, arguing that the inventory search violated his Fourth Amendment

rights because the officers did not follow the Department’s standardized procedures when

they conducted the inventory search of his truck. Id. at 21. At the suppression hearing,

Officer Spiwak explained that the category of “miscellaneous household items” included

matchbooks, miscellaneous tools, bolt cutters, and a four-way lug wrench. Id. at 73. He

also explained that the category of “miscellaneous chemicals and beakers” included

hydrogen peroxide, organic solvents, rubbing alcohol, plastic tubing, glass beakers, and

glass test tubes. Id. Officer Spiwak could not recall whether he found other items,

including a brand new tire and wheel that Sitlington claimed were in the truck. Id. at 89-

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90.

       The district court denied Sitlington’s motion to suppress, finding that the inventory

search did not violate Sitlington’s Fourth Amendment rights:

                         [T]he inventory process that was conducted here, it
                 seems to me, was far from ideal. I would not expect an
                 inventory process to . . . minutely describe every conceivable
                 thing that you would find in somebody’s toolbox or trunk or
                 glove compartment. . . .
                         But it does, it seems to me, require a sufficient level of
                 detail to be reasonably related to the purposes that were
                 indicated, and enough to suggest that the whole process just
                 wasn’t some kind of a sham to justify rummaging through the
                 stuff. Here, I think the question is close because there were
                 items in the toolbox . . . that I would have thought would have
                 been listed on an inventory. . . .
                 ....
                         But the ultimate question, it seems to me, is whether or
                 not there was a sufficient effort to accomplish an actual
                 inventory such that the process wasn’t essentially a sham.
                 And it seems to me that on the showing here I’m persuaded
                 that there was still essentially an inventory process that was
                 conducted here, and that the circumstances don’t show this to
                 have been simply a sham. The inventory listing did include in
                 it a number of items that would appear to be the most valuable
                 ....
                         So for those reasons, it does seem to me that the search
                 was of such a nature that it would comply with the Fourth
                 Amendment exception relating to inventory searches, and the
                 defendant’s motion to suppress will, therefore, be overruled.

Id. at 133-35.

                                                 II

       Sitlington appeals from the district court’s denial of his motion to suppress. He

argues that the inventory search violated the Fourth Amendment because the police


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officers failed to provide a more detailed inventory of the contents of the truck pursuant

to Shawnee Police Department policy. We review a district court’s denial of a motion to

suppress de novo. United States v. Benoit, 713 F.3d 1, 8 (10th Cir. 2013). “We accept

the district court’s factual findings unless they are clearly erroneous and view the

evidence in the light most favorable to the government.” Id.

       An inventory search is “a well-defined exception to the warrant requirement,”

Illinois v. Lafayette, 462 U.S. 640, 643 (1983) (citing South Dakota v. Opperman, 428

U.S. 364 (1976)), that “serve[s] 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.” Colorado v. Bertine, 479 U.S. 367, 372 (1987). An inventory

search is “reasonable only if conducted according to standardized procedures,” and it

“must not be a ruse for a general rummaging in order to discover incriminating evidence.”

United States v. Haro-Salcedo, 107 F.3d 769, 772-73 (10th Cir. 1997). See also Bertine,

479 U.S. at 376; Florida v. Wells, 495 U.S. 1, 4 (1990).

       Sitlington does not contend that the impoundment of his truck violated the Fourth

Amendment. However, Sitlington argues that the inventory search violated his Fourth

Amendment rights because the search was not conducted in accordance with Shawnee

Police Department policy. The impound and inventory policy of the Shawnee Police

Department states:

              A record shall be maintained of all vehicles impounded at the
              direction of an officer and the contents of each impounded
              vehicle shall be completely inventoried prior to the removal

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              of the vehicle from the scene to the place of impoundment.
              The inventory shall include all items of value and other
              tangible personal property . . . . The inventory shall include
              all areas of or in the vehicle that are capable of being opened,
              locked or unlocked containers or compartments when on a
              lawful impound with minimum force, absent of exigent
              circumstances. In the event that exigent circumstances exist,
              officers may use whatever force is necessary to enter a
              locked, sealed or otherwise secured compartment, container
              or any other area in or of the vehicle. The inventory shall be
              recorded on the impoundment sheet.

Aplt. App. at 154 (emphasis added). According to Sitlington, Officer Spiwak’s “general

notations” on the inventory form were incomplete and inaccurate, which did not fulfill the

purposes of an inventory search. Instead, Sitlington argues, the search amounted to a

pretextual investigatory search. Sitlington contends that the items listed on the inventory

sheet were generally items that could be deemed suspicious, and once Officer Spiwak

found the rifle bag and rifle scope in the cab of the truck, Officer Spiwak searched the rest

of the truck until he found the rifle. Aplt. Br. at 29-30.

       This court has not addressed the question of whether a police officer’s catalog of

an inventory search that lacks sufficient detail is violative of the Fourth Amendment.

Other circuit courts that have addressed this issue are in disagreement. Compare United

States v. Kindle, 293 F. App’x 497, 500 (9th Cir. 2008) (“[U]nder the totality of the

circumstances . . . an incomplete inventory list does not establish that the inventory was

subterfuge for an unconstitutional investigatory search.”), and United States v. Lopez,

547 F.3d 364, 371 (2d Cir. 2008) (“The concept of an inventory does not demand the

separate itemization of every single object.”), with United States v. Rowland, 341 F.3d

                                              -6-
774, 780-82 (8th Cir. 2003) (holding that an inventory search was invalid when law

enforcement failed to follow standardized procedures and searched the vehicle for only

incriminating evidence).

        Without reaching the question of whether the officers’ inventory search of

Sitlington’s truck was constitutionally sound, we conclude that the rifle would have been

inevitably discovered in a properly-conducted inventory search. Although the

government did not raise the inevitable discovery doctrine in district court but instead

raised it on appeal for the first time, “[w]e are free to affirm the district court’s decision

on any ground supported by the record.”1 United States v. Hauk, 412 F.3d 1179, 1185

(10th Cir. 2005); see also United States v. Damato, 672 F.3d 832, 844-45 (10th Cir.

2012). The inevitable discovery doctrine establishes that when “the evidence in question

would inevitably have been discovered without reference to the police error or


       1
         Sitlington argues that because the government did not raise the inevitable
discovery doctrine in district court, the government has waived its argument based on the
inevitable discovery doctrine on appeal. Aplt. Reply Br. at 18-19. In determining
whether to consider an alternative theory on appeal, we are guided by the following
factors: “‘[1] whether the ground was fully briefed and argued here and below; [2]
whether the parties have had a fair opportunity to develop the factual record; and [3]
whether, in light of factual findings to which we defer or uncontested facts, our decision
would involve only questions of law.’” United States v. Damato, 672 F.3d 832, 844 (10th
Cir. 2012) (alterations in original) (quoting Elkins v. Comfort, 392 F.3d 1159, 1162 (10th
Cir. 2004)). All three factors weigh in favor of considering the inevitable discovery
doctrine. First, although the inevitable discovery doctrine was not raised in district court,
both parties argued the inevitable discovery doctrine before this court. Second, both
parties were afforded a fair opportunity to develop the factual record. And third, our
decision would involve only questions of law because the ultimate determination of
Fourth Amendment reasonableness is a legal question that we review de novo. United
States v. Forbes, 528 F.3d 1273, 1277 (10th Cir. 2008)

                                              -7-
misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.”

Nix v. Williams, 467 U.S. 431, 448 (1984).

       We have repeatedly applied the inevitable discovery doctrine to cases involving, as

here, an improper inventory search that was preceded by a lawful impoundment. See,

e.g., Haro-Salcedo, 107 F.3d at 773-74; United States v. Horn, 970 F.2d 728, 732 (10th

Cir. 1992); but see United States v. Ibarra, 955 F.2d 1405, 1410 (10th Cir. 1992)

(declining to apply the inevitable discovery doctrine where an inventory search was

preceded by an unlawful impoundment). In applying the inevitable discovery doctrine to

cases involving improper inventory searches, we have held that “‘[e]ven assuming

arguendo that the post-arrest search . . . was improper and should have been conducted in

a different manner, had the search been conducted in the manner defendant suggests is

proper, it was inevitable that the weapons would have been discovered.’” Haro-Salcedo,

107 F.3d at 774 (alteration in original) (quoting Horn, 970 F.2d at 732).

       Here, police officers lawfully impounded Sitlington’s truck after his arrest in

accordance with Shawnee Police Department policy. See Aplt. App. at 153 (“When the

operator of a motor vehicle is taken into custody . . . [t]he vehicle will be impounded.”).

Sitlington does not dispute that a properly-conducted inventory search would have

uncovered the firearm in the truck. The material facts of this case are indistinguishable

from Haro-Salcedo, in which the defendant argued that “the officers’ deviation from

standard departmental procedures revealed the impermissible purpose of the [inventory]

search.” 107 F.3d at 774. In Haro-Salcedo, we applied the inevitable discovery doctrine

                                             -8-
and affirmed the denial of the defendant’s motion to suppress. Id. We conclude that the

same reasoning applies in this case, and we conclude that the rifle would have been

inevitably discovered.

                                           III

      Accordingly, we affirm.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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