                                                       [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          JAN 9, 2012
                            No. 10-15221
                                                           JOHN LEY
                      ________________________
                                                            CLERK

              D. C. Docket No. 5:10-cr-00024-MTT-CHW-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                 versus

MARSHALL H. FOSKEY,


                                                       Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                    _________________________


                            (January 9, 2012)




Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      On August 17, 2010, a jury convicted Marshall H. Foskey of possessing a

firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). On November

3, 2010, the district court sentenced Foskey to 240 months’ imprisonment. Foskey

appeals the district court’s denial of his motion to suppress evidence seized from

his vehicle. Foskey contends that he was stopped without reasonable suspicion,

arrested without probable cause, and that the inventory search of his van was

invalid. For the reasons stated below, we affirm.

                                          I.

      On Sunday, July 19, 2009, around 8:30 a.m., employees of the Fresh Air

Bar-B-Que (Fresh Air) in Macon, Georgia, contacted law enforcement. The

employees reported seeing a blue conversion van occupied by an older white man

parked suspiciously in their parking lot. Because the vehicle was parked so close

to a bush line, the employees speculated that either the van was stolen, or its driver

was considering robbing their business. Officer Eric Dorough of the Macon

Police Department responded to the initial call. Fresh Air is located on the

southern end of a shopping center just west of I-75. When he arrived at the scene,

Officer Dorough did not see a blue van in the parking lot. He entered Fresh Air,

and learned the van had been moved shortly after the employees called the police.




                                          2
The employees reported the direction of travel and reiterated their vague

descriptions of a blue conversion van and an older white male driver.

      Officer Dorough returned to his car, drove behind the shopping center,

encountered no one, and proceeded to the neighboring parking lot. There, Officer

Dorough located the van. The van was again parked in a suspicious manner.

Although in a legal parking space, the driver had backed the van so far into the

bushes that it was impossible to obtain the van’s license plate number. Officer

Dorough exited his patrol car, obtained the van’s vehicle identification number

(VIN) from the dashboard, and examined the van. Multiple van windows were

open, including the driver’s side window which was half-way down. A search

using the VIN indicated the vehicle was owned by a Jesse Foskey.

      Not seeing anyone inside the van, Office Dorough returned to his patrol car

and drove towards Fresh Air. A Fresh Air employee flagged him down, and

frantically told him the older white man from the blue van was walking behind the

shopping center. Officer Dorough again drove behind the shopping center and

this time encountered Foskey, who fit the description of the older white male.

Officer Dorough drove up next to Foskey, and, suspecting him to be the driver of

the blue van, proceeded to ask him questions. After initially cooperating, Foskey

became evasive when asked about the blue van. Officer Dorough then asked him

                                         3
for identification. Foskey backed away and sprinted into the trees. Officer

Dorough called for back-up, and pursued Foskey on foot, ordering him to stop.

Foskey dropped a pair of glasses and a hat, but continued his flight. Officer

Dorough lost sight of him after a substantial chase. Responding officers

apprehended Foskey in the woods behind an adjoining apartment complex. He

was then brought to the blue van.

      Officer Dorough intended to charge Foskey with obstruction and hindering

the law, a misdemeanor offense. Foskey refused to communicate with officers,

and a search of his person failed to produce keys to the van. Thus, the officers,

while unsure, assumed Foskey was the older white man who had driven the van

because he fit the description given by the Fresh Air employees. The officers

decided to impound the van because the open windows left it unsecured.

Investigator Jason Batchelor obtained entry to the van by reaching through the

open driver’s side window and unlocking the door. An inventory search of the

van resulted in discovery of a semiautomatic handgun, ammunition, and

camouflage clothing and face paint. Officers subsequently determined Foskey was

a convicted felon.

      On March 10, 2010, a federal grand jury indicted Foskey, charging him with

one count of possession of a firearm by a convicted felon, in violation of 18

                                         4
U.S.C. §§ 922(g)(1) and 924(e)(1). Foskey sought suppression of the firearm,

arguing his initial stop, subsequent arrest, and the inventory search violated the

Fourth Amendment.

      The district court denied the motion to suppress. The court found the initial

stop supported by reasonable suspicion and the arrest supported by probable

cause. As for the inventory search, the district court found that, based on the

testimony of Officer Dorough and Investigator Batchelor, Macon Police

Department policy required an unsecured vehicle to be impounded if no one was

available to take custody of the vehicle, even though the government failed to

submit a written impound policy to the court. The district court found that the van

was indeed unsecured because two windows were open wide enough to allow for

the unlocking of the vehicle. The court then determined that Batchelor followed

proper inventory procedure, and that the inventory search was not conducted as a

pretext for an investigatory search. Foskey proceeded to trial. On August 17,

2010, a jury convicted Foskey of possessing a firearm as a convicted felon. The

district court sentenced Foskey to 240 months’ imprisonment.




                                          5
                                          II.

      This Court reviews a denial of a suppression motion under a mixed

standard. A district court’s factual findings are reviewed for clear error while its

application of the law is reviewed de novo. United States v. Farley, 607 F.3d

1294, 1325 (11th Cir. 2010). We must view the evidence in the light most

favorable to the government. United States v. Spoerke, 568 F.3d 1236, 1244 (11th

Cir. 2009). This Court is not restricted to the evidence presented at the

suppression hearing, but instead considers the record as a whole. United States v.

Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011).

      Foskey first argues that his stop and arrest violated the Fourth Amendment.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. However, the Fourth Amendment does not apply equally

to every law enforcement interaction with the public. This Court “ha[s]

categorized encounters between police and citizens into three types, with varying

levels of Fourth Amendment scrutiny: (1) police-citizen exchanges involving no

coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-

scale arrests.” Jordan, 635 F.3d at 1185. A voluntary encounter becomes an

investigatory seizure when there is a submission to a show of police authority or

                                          6
restraint by physical force sufficient to impede a person’s freedom of movement.

Id. at 1186.

(1) Initial interaction – police-citizen exchange

      Officer Dorough’s initial interactions with Foskey were consensual and

voluntary. Officer Dorough questioned Foskey from within his patrol car and

through an open window. He did not display his firearm, or physically touch

Foskey. He did not exert force or show authority to restrain Foskey’s freedom of

movement. Although Officer Dorough may have had reasonable suspicion that

Foskey was the older white man associated with the blue van, such suspicions do

not change the voluntary nature of the encounter. See United States v. Caraballo,

595 F.3d 1214, 1222-23 (11th Cir. 2010). Thus, the initial questioning was not a

Terry stop.

(2) Reasonable suspicion entitling officer to issue order to stop flight

      To effectuate a Terry stop, a law enforcement officer must have

“reasonable, articulable suspicion based on objective facts that the person has

engaged in, or is about to engage in, criminal activity.” United States v. Lindsey,

482 F.3d 1285, 1290 (11th Cir. 2007). Reasonable suspicion is “considerably less

than proof of wrongdoing by a preponderance of the evidence” and less than

probable cause, which is “a fair probability that contraband or evidence of a crime

                                          7
will be found.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quotation

omitted). “[N]ervous, evasive behavior is a pertinent factor in determining

reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Further,

individual facts capable of innocent interpretation may give rise to reasonable

suspicion when viewed as a whole. United States v. Arvizu, 534 U.S. 266, 274-75

(2002). A court must review the totality of the circumstances to determine

whether an officer had a “particularized and objective basis” to suspect legal

wrongdoing. Id. at 273.

      Although the initial encounter was voluntary, Officer Dorough had

suspicions prior to speaking with Foskey. Officer Dorough had receieved the

initial complaint and conducted interviews of witnesses. Officer Dorough had

seen for himself the strange manner in which the van was parked. Then, a Fresh

Air employee frantically told him the suspicious van’s driver had returned and was

walking behind the shopping center. Upon driving behind the shopping center,

Officer Dorough encountered Foskey, who fit the description of an older white

male and was the only person he saw in the area.

      During the voluntary encounter, Officer Dorough obtained additional

information. Although Foskey was in a public place, he was walking through an

area from which he could not access the stores in the shopping center. When

                                         8
asked what he was doing behind the businesses, Foskey responded he was “just

taking a walk.” When Officer Dorough asked him about the van, Foskey “seemed

. . . to [be] trying to disassociate himself with the van.” Finally, when Officer

Dorough asked Foskey for identification, Foskey fled.

      It is important to stress that even if Foskey’s flight was lawful, the flight can

be considered in the calculus of whether reasonable suspicion existed to stop

Foskey. Wardlow, 528 U.S. at 124-25; United States v. Franklin, 323 F.3d 1298,

1301-02 (11th Cir. 2003). These circumstances, viewed in their totality, support a

particularized and objective basis to suspect Foskey of legal wrongdoing.

(3) Warrantless arrest after order to stop

      However, a warrantless full-scale arrest must be supported by probable

cause. United States v. Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005). Probable

cause exists when a police officer has a reasonable belief that a suspect committed

or was committing a crime, based upon facts and circumstances within their

knowledge. United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). To

determine whether probable cause supports an arrest, we must examine the state

law a suspect allegedly violated. Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.

2003). Here, Dorough arrested Foskey for obstructing and hindering a law

enforcement officer’s lawful discharge of his official duties, in violation of Ga.

                                          9
Code Ann. § 16-10-24(a). In Cofield v. State, the Georgia Court of Appeals found

that flight after a lawful command to halt constitutes obstruction of an officer. 304

Ga. App. 165, 168, 695 S.E.2d 696, 698 (2010). Cofield fled after witnessing the

arrest of another suspect, and an officer ordered Cofield to stop. Although the

officer initially lacked probable cause to arrest Cofield, the officer had reasonable

suspicion to conduct an investigatory stop. Because Cofield ignored the officer’s

order to stop, he violated § 16-10-24(a). Thus, Cofield demonstrates that ignoring

an officer’s lawful command to halt issued for the purpose of conducting a Terry

investigative stop can support a conviction for obstructing and hindering a law

enforcement officer.

      Because Officer Dorough possessed reasonable suspicion that Foskey had

violated the law, he had legal authority to conduct a Terry stop, and Officer

Dorough’s order to stop was lawful. When Foskey ignored Officer Dorough’s

lawful order to stop and continued his flight, Officer Dorough then possessed

probable cause to believe Foskey had violated § 16-10-24(a) by obstructing and

hindering a law enforcement officer’s lawful duties. Therefore, Foskey’s

apprehension and arrest did not violate the Fourth Amendment.




                                          10
                                         III.

      Foskey argues in the alternative that the inventory search of his vehicle

violated the Fourth Amendment. Foskey contends that the testimony of the two

officers regarding police policy was inconsistent, and that the failure to submit a

written impound policy prevents a finding that a standard policy existed at the

time of the seizure.

      The Supreme Court has recognized that pursuant to law enforcement’s

“community caretaking functions,” automobiles are frequently impounded by law

enforcement. South Dakota v. Opperman, 428 U.S. 364, 370 (1976). An

impounded vehicle may be the subject of an inventory search. Id. at 369. When

analyzing the reasonableness of an inventory search, a court must determine (1)

whether the police had the authority to impound the vehicle, and (2) whether the

officers followed procedures governing inventory searches. United States v.

Williams, 936 F.2d 1243, 1248 (11th Cir. 1991). Foskey only challenges the

legality of his vehicles’ impoundment.

      An officer may impound a vehicle because it jeopardizes public safety or

impedes the efficient movement of vehicular traffic. Opperman, 428 U.S. at 369.

Further, impoundments may occur while police officers attempt to determine

whether a vehicle has been stolen. See id.; Williams, 936 F.2d at 1248-49.

                                         11
Finally, even a lawfully parked car that presents no hazard to public safety may be

impounded when the circumstances present an “appreciable risk of vandalism or

theft.” United States v. Staller, 616 F.2d 1284, 1290 (5th Cir. 1980)1; see

Opperman, 428 U.S. at 369 (“The practice [of securing and inventorying the

automobiles’ contents] has been viewed as essential to respond to incidents of

theft or vandalism.”). The Supreme Court has found that standard criteria or

established routine must govern inventory searches of impounded vehicles.

Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, a reasonable “policy or practice”

must be shown by the government. Id.; see also Sammons v. Taylor, 967 F.2d

1533, 1543 (11th Cir. 1992); Williams, 936 F.2d at 1248. The reasonableness of

the policy or practice “does not necessarily or invariably turn on the existence of

alternative less intrusive means.” Colorado v. Bertine, 479 U.S. 367, 374 (1987)

(quotations omitted). Thus, “a law enforcement officer may impound [a] vehicle,

so long as the decision to impound is made on the basis of standard criteria and on

the basis of something other than suspicion of evidence of criminal activity.”

Sammons, 967 F.2d at 1543 (quotation omitted). However, a valid impound and




       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.

                                               12
inventory search “is not vitiated by a police officer’s suspicion that contraband or

other evidence may be found.” Staller, 616 F.2d at 1290.

      Here, the district court found the following facts:

      •      Dorough and Batchelor were credible witnesses.
      •      The blue van’s windows were partially open (the car had power
             windows).
      •      Foskey no longer possessed the keys to the van.
      •      The open windows made the van “not secure.”
      •      Dorough and Batchelor understood the Macon Police
             Department’s impound policy to require impounding an
             unsecurable vehicle.
      •      Both Dorough and Batchelor reasonably suspected Foskey to
             have driven the van to the lot.
      •      Dorough and Batchelor could not determine whether they could
             turn the van over to someone else because Foskey would not
             give them any information.
      •      The officers followed standard procedure by impounding the
             van.
      •      The search of the van also followed standard procedure.
      •      Dorough and Batchelor’s purpose was not investigative in
             nature.

      Foskey claims the officers testified inconsistently. Foskey asserts that

Officer Dorough testified the vehicle was impounded for being unsecured, but

listed on the inventory report that the reason for impoundment was “driver

arrested.” Further, Foskey argues Inspector Batchelor “gave a different version”

of the impoundment policy by saying that impoundment was necessary to protect

the property rights of the owner of the vehicle.



                                         13
      The two officers testified consistently. The impoundment of an unsecured

car inherently protects the property rights of the car’s owner by preventing its

theft. As for Officer Dorough’s entry on the form, Foskey’s arrest was a “but for”

cause of the vehicle’s impoundment. Because Officer Dorough suspected Foskey

to be the driver, the arrest prevented releasing the van to him. The district court’s

findings of fact are reviewed for clear error. “Where there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).

Further, “[a]ppellate courts reviewing a cold record give particular deference to

credibility determinations of a fact-finder who had the opportunity to see live

testimony.” Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983). The

district court found Officer Dorough and Inspector Batchelor’s testimony to be

truthful and, despite Officer Dorough’s entry on the form, found that they

impounded the vehicle because it was not properly secured. The district court’s

view of the evidence is supported by the record, and therefore not clearly

erroneous.

      Because the district court’s findings of fact are not clearly erroneous, the

failure to introduce a written impound policy does not demand suppression. The

government must only demonstrate that an “established routine” or “practice”

                                          14
exists authorizing impoundment. See Wells, 495 U.S. at 4. Therefore, the

government need not show that a written policy, city ordinance, or state law

supports the impoundment. See United States v. Smith, 522 F.3d 305, 315 (3d Cir.

2008); United States v. Coccia, 446 F.3d 233, 238-40 (1st Cir. 2006); United

States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996). Because the district court did

not clearly err in finding that impounding unsecured vehicles was an established

routine and general practice of the Macon Police Department, and because that

practice is reasonably related to the community safekeeping function, the motion

to suppress was properly denied.

      AFFIRMED.




                                        15
