     Case: 13-10706      Document: 00512734444         Page: 1    Date Filed: 08/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 13-10706                               FILED
                                                                           August 14, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                 Plaintiff - Appellee
v.

BRANDON SHAW,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-146-1


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Brandon Shaw was arrested on the basis of a warrant that was
discovered during a traffic stop. His car was impounded and inventoried,
which produced a hand gun that led to Shaw’s conviction for possession of a
firearm by a felon. He appeals, arguing that the hand gun should have been
suppressed because it was the fruit of an improper inventory search. We affirm
the district court.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-10706
                                       I.
      Dallas police officers Daniel Torres and Mike Irwin initiated a traffic
stop of a silver BMW they observed making a wide turn without using a turn
signal.   Torres observed the vehicle’s driver, Appellant Brandon Shaw,
“making furtive gestures, reaching towards the middle console of the vehicle.”
Torres instructed Shaw to exit the vehicle and performed a pat-down search of
his person. Shaw informed Torres that he had unpaid parking tickets and
Torres confirmed that there was an outstanding warrant for Shaw’s arrest.
Torres then called for backup and arrested Shaw.
      After the arrest, Torres asked Shaw if he wanted to release the car to a
passenger who was present at the scene. Shaw declined, which required that
the car be impounded. Dallas Police Department (“DPD”) procedures require
officers to inventory the contents of impounded vehicles. Torres testified that
when his backup was “in view” he began looking though areas of Shaw’s car
“where he could reach in” in order to “inventory it.” At the time that Torres
began the search, Shaw was already secured in the police vehicle.
      Officers Trahan and Francis arrived to assist. While it is normally the
responsibility of the arresting officer to inventory the contents of the
impounded car and wait for a tow truck, Trahan offered to take Torres’s place
so that Torres could take Shaw back to the police station. Trahan testified this
was common practice. He also testified that he was unsure whether Torres
had done any type of inventory search of Shaw’s car before he arrived, but that
he believed his arrival had interrupted Torres’s search. Trahan proceeded to
perform an inventory search, which revealed a handgun between the driver’s
seat and the middle console. Trahan called Torres and Irwin back to the scene
and they took possession of the gun. He then completed the vehicle receipt,
but wrote Torres’s name and badge number on the form rather than his own.


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                                      No. 13-10706
Trahan also removed an iPad and seven rounds of ammunition from the car
but listed only clothing on the receipt.
       Shaw moved to suppress the gun as the fruit of an illegal search. After
an evidentiary hearing, the district court denied the motion. The district court
found that two searches had occurred, one by Torres and one by Trahan, and
that both were inventory searches. The district court also concluded that
although there was “a failure to comply with the procedures,” the failure was
minimal and that the second search was not investigatory. Shaw entered a
conditional plea, reserving the right to appeal the denial of the motion to
suppress.
                                            II.
       When reviewing the denial of a motion to suppress, this court reviews
factual findings for clear error and conclusions of law de novo. 1 We review
evidence and inferences from the facts in the light most favorable to the
government as the prevailing party in the district court. 2 The government,
however, must bear the burden of proving by a preponderance of the evidence
that the search that produced the firearm was constitutional. 3 In reviewing
the district court’s ruling on a motion to suppress based on live testimony at a
suppression hearing, we must accept the district court’s factual findings unless
they are clearly erroneous or influenced by an incorrect view of the law. 4
                                            III.
       Shaw contends that the searches performed on the scene were neither
proper inventory searches nor valid searches incident to arrest. As a result, he
contends that the warrantless search that produced the firearm was


       1 United States v. McKinnon, 681 F.3d 203, 207 (5th Cir. 2012).
       2 Id.
       3 Id.
       4 United States v. Muniz–Melchor, 894 F.2d 1430, 1433 (5th Cir. 1990) (quoting United

States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984)).
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                                       No. 13-10706
unreasonable and a violation of the Fourth Amendment. Shaw is correct that
the searches in question would not qualify as valid searches incident to arrest
because Shaw was secured in the police vehicle at the time the searches were
performed. 5 The Government, however, does not argue that the searches were
valid searches incident to arrest, but rather that they were valid inventory
searches. “An inventory search is the search of property lawfully seized and
detained, in order to ensure that it is harmless, to secure valuable items (such
as might be kept in a towed car), and to protect against false claims of loss or
damage.” 6     But “an inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence.” 7
       Our review of the underlying factual record suggests that what occurred
immediately following Shaw’s arrest was a single inventory search, continued
by Trahan once he took over from Torres. But even if the searches are viewed
as two separate events, no reversible error occurred. The first search produced
no evidence, and the government does not defend its validity. The second
search, meanwhile, is independently valid as an inventory search.                         The
Supreme Court has held that a “single familiar standard is essential to guide
police officers, who have only limited time and expertise to reflect on and
balance the social and individual interests involved in the specific
circumstances they confront.” 8 Specifically, the Supreme Court’s “decisions
have always adhered to the requirement that inventories be conducted
according to standardized criteria.” 9            Thus, this Court has held that an


       5  See Arizona v. Gant, 556 U.S. 332, 343 (2009) (limiting searches of vehicles incident
to a recent occupant’s arrest to situations in which the “the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search”).
        6 Whren v. United States, 517 U.S. 806, 812 n.1 (1996).
        7 Florida v. Wells, 495 U.S. 1, 4 (1990).
        8 New York v. Belton, 453 U.S. 454, 458 (1981); United States v. Walker, 931 F.2d 1066,

1068 (5th Cir. 1991).
        9 Colorado v. Bertine, 479 U.S. 367, 374 n.6 (1987).

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                                       No. 13-10706
inventory search “is reasonable and not violative of the Fourth Amendment if
it is conducted pursuant to standardized regulations and procedures that are
consistent with (1) protecting the property of the vehicle’s owner, (2) protecting
the police against claims or dispute over lost or stolen property, and (3)
protecting the police from danger.” 10 The procedures “must sufficiently limit
the discretion of law enforcement officers to prevent inventory searches from
becoming evidentiary searches.” 11
       Shaw argues that the search was improper because the officers departed
from inventory search procedures by: (1) failing to include some items on the
inventory search worksheet, (2) using the wrong officer’s name on the impound
sheet, and (3) conducting more than one inventory search. But under the
specific circumstances presented here, including that the police department
had custody of Shaw’s vehicle pursuant to the impound process, any deviations
from standard operating procedure were arguable and minor. We are unable
to say the district court erred in concluding that none of the deviations, if
indeed there were any, contravened the core constitutional requirements of
inventory searches.
                                             IV.
       For these reasons, we AFFIRM Shaw’s conviction.




       10  United States v. McKinnon, 681 F.3d 203, 209 (5th Cir. 2010) (citations and
quotations omitted).
       11 Id. at 209-10 (citing United States v. Andrews, 22 F.3d 1328, 1336 (5th Cir. 1994)).

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