     Case: 10-50034 Document: 00511426519 Page: 1 Date Filed: 03/28/2011




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

                                                 FILED
                                                                           March 28, 2011

                                       No. 10-50034                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellant
v.

RANDALL OVERLEY,

                                                   Defendant–Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-157-1


Before JONES, Chief Judge, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       The Government appeals the district court’s order suppressing evidence
seized from Defendant-Appellee Randall Overley’s (Overley) vehicle at the time
of his arrest following a traffic violation. We find no error and AFFIRM the
ruling of the district court.
       The Government contends that the district court erroneously found that
the search of Overley’s vehicle was not justified under the inventory-search
exception. When considering a district court’s ruling on a motion to suppress,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50034

we review the “district court’s factual findings for clear error and its ultimate
conclusion as to the constitutionality of the law enforcement action de novo.”
United States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993). This Court
“may affirm the district court’s ruling on a motion to suppress based on any
rationale supported by the record.” United States v. Roberts, 612 F.3d 306, 309
(5th Cir. 2010). We are mindful that because the police officer conducted a
search without a warrant, the “government bears the burden of proving that the
search was valid.” United States v. Roberts, 612 F.3d 306, 309 (5th Cir. 2010).
An inventory search does not violate 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 disputes over lost or stolen property, and (3) protecting the
police from danger.” United States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999).
      Here, the district court expressly “reject[ed] any assertion that the search
of Overley’s vehicle was an inventory search incident to impounding Overley’s
vehicle.” The Government points to the police officer’s testimony that Overley’s
vehicle was “impounded.”     However, the following questioning is the only
evidence in the record with respect to the police officer’s conducting an
“inventory search,” as opposed to an illegal warrantless search:
      Q     So on that basis, you impounded the vehicle?


      A     Yes


      Q     Correct? And then – and obviously as part of that impound, an
            inventory had to be done as well?


      A     Yes. Yes, sir.
      Q     Okay. All right And as part of inventory or search or however you
            want to characterize it, the firearm was located; correct?


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                                      No. 10-50034



       A      Correct.
       The district court did not have to credit this witness’s testimony. See
United States v. Davis, 76 F.3d 82, 85 (5th Cir. 1996). Further, there is no other
evidence that the police officer performed the search and impounded the vehicle
pursuant to Austin Police Department (APD) policy. During the evidentiary
hearing, Overley submitted a copy of APD’s written policies and procedures,
which was entitled “Impounding Vehicles.” The relevant part of the policy
provides that: “In all incidents where a vehicle is impounded or moved, the
officer will make an inventory of the vehicle for damage and any items of
personal property.” Additionally, “[a]ll damage and personal property located
during an inventory of a vehicle will be listed on the impound sheet including its
description and location.” The officer did not testify that his search comported
with APD policy. For instance, no impound sheet was admitted during the
evidentiary hearing. Indeed, no testimony was offered to show that the police
officer took a proper inventory of the vehicle in accordance with the procedures
set forth in APD’s policy.
       Although this Court has recognized that APD’s written “procedures are
sufficiently specific to protect citizens’ Fourth Amendment rights,” the evidence
in this case does not establish that the procedures were followed. United States
v. Ponce, 8 F.3d 989, 995 n.5 (5th Cir. 1993). Based on this record we cannot
conclude that the district court’s implicit factual finding that the inventory
procedures were not followed is clearly erroneous.1 Under these circumstances,




       1
         We recognize that the ultimate determination of whether an inventory search is valid
is reviewed de novo. United States v. Como, 53 F.3d 87, 91 (5th Cir. 1995).

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                                     No. 10-50034

the Government has not shown that the district court erred in concluding that
the evidence did not establish a valid inventory search.2
      Thus, for the foregoing reasons, we AFFIRM the district court’s order
granting Overley’s motion to suppress the evidence.




      2
        Finally, we note that the Government has not demonstrated plain error with respect
to whether the gun would have been inevitably discovered.

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