                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 20 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-3196
          v.                                 (D.C. No. 03-CR-10228-01-WEB)
 BENTON G. BASKIN,                                       (D. Kansas)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges.


      On September 25, 2003, two Wichita police officers stopped the vehicle of

Defendant Benton G. Baskin, requested identification from him, discovered that

he had an outstanding warrant for violating parole, and consequently arrested him.

The officers then searched his vehicle, discovering a handgun and loaded

magazine in the locked trunk. Defendant was indicted for being a felon in


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
possession of a firearm, 18 U.S.C. § 922(g)(1). He moved to suppress the firearm

and magazine as fruit of an unlawful search. After the district court denied this

motion, Defendant entered a conditional plea of guilty, preserving for review his

challenge to the search. He then appealed to this court. We review the district

court’s factual findings for clear error and its conclusions of law, de novo. See

United States v. White, 326 F.3d 1135 (10th Cir. 2003). We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

      The fruits of an unconstitutional search need not be suppressed when they

inevitably would have been discovered by constitutional means. See

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

found that “the officers undoubtedly would have impounded the car and would

have . . . conducted an inventory search of the trunk . . . if they had not proceeded

to search the trunk in response to the defendant’s comment to ‘go ahead and

look.’” Memorandum and Order (Mar. 5, 2004) at 12. This finding is not clearly

erroneous. Consequently, the question before us is whether the hypothetical

“inevitable” search would have been a constitutional inventory search.

      An inventory search is constitutional if (1) it is conducted according to

established procedures and (2) it is designed to produce an inventory rather than

being a cover for general rummaging. See Tueller, 349 F.3d at 1243. The district

court found that the hypothetical inventory search it thought inevitable “was


                                          -2-
authorized by the [police department’s] impoundment procedures” and “that the

inventory policy applie[d] to the entirety of the vehicle, including the trunk.”

Memorandum and Order (Mar. 5, 2004) at 12-13. That finding is not clearly

erroneous and we hold that it satisfies part one of the constitutional test.

       Defendant points to no evidence that the hypothetical inventory search

would have been a mere cover for general rummaging. The district court found

that the police officers would have impounded and, consistent with police-

department policy, inventoried the car because it would have been a safety hazard

had they left it where it was, it might have contained valuables, and it would have

been unreasonable at that hour (about 3:00 a.m.) to attempt to contact someone

who could pick up the car. Because these findings of a bona fide reason for the

hypothetical inventory search are not clearly erroneous and Defendant offers no

contrary evidence, we hold that the second part of the constitutional test also is

satisfied.

       We therefore AFFIRM the denial of the motion to suppress.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                          -3-
