                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 January 17, 2018
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT
                                                                       Clerk of Court
                    _______________________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 17-4000
 v.                                          (D.C. No. 2:15-CR-00690-JNP-PMW-1)
                                                            (D. Utah)
 DAVID SANCHEZ,

          Defendant - Appellant.


                           ORDER AND JUDGMENT *
                    _______________________________________

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
              ______________________________________

      A grand jury in the United States District Court for the District of Utah

charged Defendant David Sanchez with one count of possessing methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Alleging a violation

of his Fourth Amendment rights, Defendant moved to suppress the methamphetamine

obtained from the rental car he was driving. Following an evidentiary hearing, the

district court denied the motion. Defendant then entered a conditional guilty plea

that preserved his right to challenge the suppression ruling. See Fed. R. Crim. P.

11(a)(2). The district court sentenced Defendant to 40 months imprisonment and 36


      *
         This order and judgment is not binding precedent except under the doctrines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.
months of supervised release and Defendant appealed. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                          I.

      The relevant facts are undisputed. On November 7, 2015, Utah Highway

Patrol Trooper Jared Withers detected a black Dodge Avenger speeding eastbound

on Interstate 70 near Green River, Utah. Trooper Withers stopped the speeding

vehicle, driven by Defendant. Upon approaching the vehicle, Trooper Withers

determined two passengers accompanied Defendant: Teresa Garcia, who occupied

the passenger’s seat, and a toddler, who was lying in the back seat without any safety

restraints. Trooper Withers explained the reason for the stop and asked Defendant

for his driver’s license and vehicle registration. Defendant handed Trooper Withers

a United States passport in Defendant’s name and an expired rental contract between

Enterprise Rent-A-Car and Alexis Fernandez, who was not in the vehicle. Neither

Defendant nor Garcia had authorization to drive the rental car and neither produced

a valid driver’s license.   In fact, the rental contract stipulated, “NO OTHER

DRIVERS PERMITTED.”

      After reviewing the rental contract, Trooper Withers asked Defendant to

accompany him to his patrol vehicle for additional questioning. While in the patrol

vehicle, Trooper Withers filled out a speeding citation and asked Defendant

questions about the rental contract, Alexis Fernandez, and his intended destination.

Although Defendant was not fluent in English, he was able to understand Trooper

                                          2
Withers’s inquiries enough to explain that he and Garcia were en route to Colorado

for a week, that his driver’s license was suspended from a DUI citation, and that his

friend, Alexis Fernandez, was in California.

      While dispatch ran a driver’s license, warrant, and criminal history check on

Defendant, Trooper Withers walked his narcotic detector dog around the rental car.

The dog did not alert.    Upon returning to the patrol vehicle, Trooper Withers

received information from dispatch confirming Defendant’s DUI conviction and

suspended driver’s license. Trooper Withers asked Defendant for his consent to

search the vehicle, even providing a consent form in Spanish to ensure Defendant

understood Trooper Withers’s request, but Defendant refused. Lacking Defendant’s

consent to search the rental car but still hoping to uncover drugs, Trooper Withers

turned his attention to Enterprise Rent-A-Car, the owner of the vehicle. Dispatch

contacted Enterprise to inform the company that Alexis Fernandez—the only

authorized driver on the rental contract—was not in the vehicle, to alert them the

vehicle was five days overdue, and to ask what Enterprise wanted Trooper Withers

to do regarding the vehicle. Since no authorized driver was in the vehicle and the

contract only authorized the vehicle’s operation within California, Nevada, and

Arizona, Enterprise determined the rental contract terms had been violated and

requested the vehicle be impounded. Trooper Withers relayed Enterprise’s request

and explained to Defendant and Garcia that the rental car needed to be inventoried

before it could be impounded.

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       The Utah Department of Public Safety Policy Manual (UDPSPM) requires an

inventory when a vehicle is impounded. See UDPSPM § 504.5. Upon impound, “a

case number shall be assigned and a written inventory shall be made of the contents

of the vehicle, the trunk and any open or closed package, container, or

compartment.”    Id. § 504.2.1.    The purpose of the inventory procedure is to

“protect[] an owner’s property while in police custody, to provide for the safety of

officers, and to protect the Department against fraudulent claims of lost, stolen or

damaged property.” Id. § 504.5. The inventory policy allows officers to make

reasonable accommodations for a “driver/owner to remove small items of value or

personal need (e.g. cash, jewelry, cell phone, prescriptions) which are not considered

evidence or contraband” where removing such items “would not cause unreasonable

delay in the completion of a vehicle impound/storage or create an issue of officer

safety.” Id. § 504.7.

      With the impound requested, Trooper Withers, Defendant, and Garcia turned

their attention to the inventory search. When Garcia requested to remove diapers and

other items for the child, Trooper Withers agreed but told Garcia to wait “a few

minutes” while he returned to his patrol vehicle. Flouting those instructions, Garcia

began to remove personal items from the back seat. When Trooper Withers realized

what Garcia was doing, he shouted, “Hey! No . . . let me see what you are grabbing.”

Following this exchange, Garcia placed one bag back in the rear seat, lifted the

toddler out of the car, and retrieved items from the front seat of the rental.

                                          4
Critically, at no point did either Defendant or Garcia ask to remove personal property

from the trunk or from the glove box.

      Shortly after the exchange between Trooper Withers and Garcia, Trooper

Withers began to inventory the contents of the rental car. In the trunk, Trooper

Withers observed several plastic garbage bags filled with men’s clothing and a

leopard print bag filled with women’s clothing. Trooper Withers found a large,

square mass that he recognized as methamphetamine inside one of the plastic bags.

Based on this discovery, Trooper Withers arrested both Defendant and Garcia and

then continued to inventory the remainder of the vehicle’s contents. In total, Trooper

Withers located ten packages of methamphetamine in the trunk. Trooper Withers

completed the vehicle inventory in the glove compartment where he found two $1

bills and a straw that appeared to have methamphetamine residue on them. A tow

truck arrived shortly thereafter to tow the rental car to an impound lot.

      Upon indictment for possessing methamphetamine with intent to distribute,

Defendant sought to suppress the evidence of drugs found in the rental car. In a

thorough written order, the district court denied Defendant’s motion. The court first

determined Defendant had standing to challenge the search. Second, the court

determined law enforcement properly undertook an inventory search of the vehicle.

Third, the court ruled that Trooper Withers’s motives for conducting the inventory

did not invalidate the lawful search. On appeal, Defendant argues the inventory

search was unlawful because (1) the UDPSPM inventory policy violates the Fourth

                                          5
Amendment and (2) Trooper Withers’s subjective intent to uncover evidence of a

crime invalidated the search. Notably, Defendant does not dispute the stop was

lawful, the decision to impound was lawful, and the inventory search was conducted

according to the standard inventory policy.

                                        II.

      When reviewing the denial of a motion to suppress, “we view the evidence

in the light most favorable to the Government and accept the district court’s factual

findings unless clearly erroneous.” United States v. Gilmore, 776 F.3d 765, 768

(10th Cir. 2015). We review de novo the legal question whether a seizure was

reasonable under the Fourth Amendment. United States v. Cortez-Galaviz, 495 F.3d

1203, 1205 (10th Cir. 2007). As a preliminary matter, the Government contends

Defendant does not have standing to challenge the search of his personal property

items within the car. Assuming without deciding that Defendant had standing to

challenge the inventory search, Defendant’s claim nevertheless fails because,

applying the appropriate standard of review, the inventory search was proper.

                                         A.

      When a vehicle is impounded, law enforcement officers follow standard

procedures of securing and inventorying the vehicle’s contents. South Dakota v.

Opperman, 428 U.S. 364, 369 (1976). Defendant argues the UDPSPM inventory

policy is inconsistent with the Fourth Amendment unless construed to permit the

search and seizure of personal property in a rental car only if the property owner is

                                         6
unavailable to maintain custody of his own property. The UDPSPM policy requires

a “thorough and accurate” inventory of “all property in a stored or impounded

vehicle.” UDPSPM § 504.5. The only discussion regarding the availability of the

driver or owner allows an officer to “make reasonable accommodations to permit a

driver/owner to retrieve small items of value or personal need.” UDPSPM § 504.7.

Therefore the policy does not, as Defendant argues, only allow the search and seizure

of personal property if the property owner is unavailable to retrieve it.

      Since the policy allows officers to inventory the contents of an impounded

vehicle even when the property owner is present and available, we turn to whether

the policy violated the Fourth Amendment. Defendant appears to challenge the

inventory policy as unconstitutional for two reasons: (1) it does not further a

community caretaking function and (2) it does not allow a property owner who is

present and available to maintain custody of his personal property. In support of his

first proposition, Defendant cites South Dakota v. Opperman, 428 U.S. 364 (1976)

and United States v. Sanders, 796 F.3d 1241 (2015). Opperman simply characterizes

impoundment as a law enforcement “community caretaking function[].” Opperman,

428 U.S. at 368 (“In the interests of public safety and as part of what the Court has

called ‘community caretaking functions,’ automobiles are frequently taken into

police custody.” (citation omitted)) (citing Cady v. Dombrowski, 413 U.S. 433, 441

(1973)). Opperman does not come close to requiring an inventory search to be

justified by a community caretaking function. We decline to take the leap from

                                          7
describing impoundments as “community caretaking functions” to requiring every

inventory search to be justified by a community caretaking concern. Sanders goes

a step further and requires impoundments to be justified by a community caretaking

rationale. Sanders, 796 F.3d at 1248. As Sanders also noted, however, the standard

for impoundment is different than the standard for an inventory search. Id. at n.1.

It would be a vast expansion of Sanders to require inventory searches to be justified

by a community caretaking concern. We know of no case yet to do so, and we

decline to do so as well.

      Second, Defendant challenges the policy as unconstitutional for requiring

inventory searches even if the property owner is present and available to retain

custody of his personal belongings.       Defendant argues in that situation, no

justification exists to take inventory of the personal property. At the same time,

Defendant acknowledges the three purposes of an inventory search are: (1) to protect

the owner’s property while in police custody, (2) to protect the police against claims

of lost or stolen property, and (3) to protect the police from potential danger.

UDPSPM § 504.5.        Although “an inventory search must be justified by the

administrative purposes of such searches,” Defendant does not adequately explain

how this inventory was not justified by the second and third purposes of an inventory

search. United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003).

      Furthermore, given Defendant never asked to claim his personal effects from

the vehicle before Trooper Withers began the search, Defendant essentially argues


                                          8
law enforcement is required to ask a driver whether he wants to remove items from

the vehicle prior to inventorying its contents.         While giving Defendant an

opportunity to remove the plastic garbage bags would have been possible, “the real

question is not what ‘could have been achieved,’ but whether the Fourth Amendment

requires such steps; it is not our function to write a manual on administering routine,

neutral procedures of the stationhouse. Our role is to assure against violations

of the Constitution.” Illinois v. Lafayette, 462 U.S. 640, 647 (1983). The Fourth

Amendment simply does not require an officer to proactively ask an unauthorized

driver of a car who does not assert ownership of items within the car whether the

driver would like to remove items from the car before conducting an inventory. Such

a rule would undermine the purposes that justify an inventory search. See UDPSPM

§ 504.5. In addition, Defendant concedes, “Of course, if a person declines to take

custody of her own property, the community caretaking rationale might apply to

legitimately bring any property she chooses to leave in the car within the custody of

police.” Def. Br. at n.2. By failing to assert ownership over the plastic bags in the

trunk, Defendant declined to take custody of his property, which was properly

brought within custody of the police. We therefore find no merit in this argument.

                                          B.

      Defendant also argues Trooper Withers’s subjective intent to uncover evidence

of a crime invalidated the search. An inventory search is invalid only if it is

undertaken for the “sole purpose of investigation.” Colorado v. Bertine, 479 U.S.


                                          9
367, 372 (1987) (emphasis added). “While mixed motives or suspicions undoubtedly

exist in many inventory searches, such motives or suspicions alone will not

invalidate an otherwise proper inventory search.” United States v. Cecala, 2000 WL

18948, *2 (10th Cir. 2000) (unpublished). Here, Trooper Withers impounded the

vehicle because Enterprise requested the impound when it learned no authorized

driver was in the area. Although Trooper Withers stated he hoped to search the

vehicle for drugs, searching for drugs was not the sole motive for the inventory.

Once Enterprise requested the impound, Trooper Withers was required to conduct the

inventory search of the car and its contents. As a dual motive does not invalidate an

otherwise lawful impound and inventory, we hold Trooper Withers’s subjective

intent to uncover evidence of a crime did not invalidate the lawful search.

      The district court’s denial of Defendant’s motion to suppress is therefore

      AFFIRMED.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       United States Circuit Judge




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