              Case: 13-10925     Date Filed: 12/06/2013   Page: 1 of 4


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-10925
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 4:12-cr-00048-RH-CAS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

EDWARD BURD,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                (December 6, 2013)

Before HULL, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:

      Edward Burd appeals his conviction, entered upon his conditional guilty

plea, for knowingly and intentionally possessing with intent to distribute 500 or
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more grams of cocaine, in violation of 21 U.S.C. § 841. He argues that the district

court erred in denying his motion to suppress evidence of the cocaine, which was

found during an inventory search of a car that he was driving after the car was

impounded following a traffic stop. His motion to suppress did not challenge the

search, but rather the impoundment. Specifically, he argued that the Florida

Highway Patrol policy on impoundment does not sufficiently limit a law

enforcement officer’s discretion in determining whether to impound a vehicle, and

thus lacks the explicit and comprehensive procedures that satisfy the Fourth

Amendment’s requirement that vehicle impoundments and inventory searches be

performed according to standard criteria.

      We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the findings of fact for clear error and the application of law to

the facts de novo. See United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.

2007). In reviewing the district court’s ruling, we must construe the facts in the

light most favorable to the party prevailing below. Id.

       The community caretaking function is an exception to the Fourth

Amendment’s warrant requirement that permits police to inventory cars taken into

custody. See South Dakota v. Opperman, 428 U.S. 364, 369–72 (1976); Colorado

v. Bertine, 479 U.S. 367, 371 (1987). In order to utilize the inventory search

exception to the warrant requirement, the government has the burden to show first


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that the police possessed the authority to impound the vehicle, and then that the

officers followed departmental policy in conducting the search. United States v.

Williams, 936 F.2d 1243, 1248 (11th Cir. 1991).

      “Nothing . . . prohibits the exercise of police discretion [in deciding to

impound a vehicle] so long as that discretion is exercised according to standard

criteria and on the basis of something other than suspicion of evidence of criminal

activity.” Bertine, 479 U.S. at 375. See also United States v. Roberson, 897 F.2d

1092, 1094, 1096–97 (11th Cir. 1990) (concluding that the impoundment and

inventory of a vehicle in accordance with standard police procedures was not

unreasonable under the Fourth Amendment).

      For a number of reasons, the district court did not err by denying Mr. Burd’s

motion to suppress the cocaine.

      First, the FHP policy contained sufficient standardized criteria under

Colorado v. Bertine. Although the FHP policy does not cover every conceivable

situation that might confront an impounding officer, and thus requires some use of

officer discretion, it provides seven situations in which vehicles “shall” be towed

and impounded, and also delineates the purposes guiding the officer’s decision.

The reasonableness of the FHP’s impoundment policy or practice “does not

necessarily or invariably turn on the existence of alternative less intrusive means.”

Bertine, 479 U.S. at 374 (quotation omitted).


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      Second, the officer’s decision to impound the car driven by Mr. Burd fulfills

three of the FHP identified principles, namely: to protect the public or property of

the public, to protect the owner’s vehicle and property, and to protect FHP from

liability claims. The district court’s factual determination that leaving the car on

the interstate highway would have created a hazard to the public is not clearly

erroneous, and by the terms of the FHP policy this concern justified impoundment.

See Opperman, 428 U.S. at 368-69. Turning the car over to Mr. Burd’s passenger

would not have protected the owner’s property or protected the FHP from liability

because neither Mr. Burd nor his passenger owned the vehicle or could identify the

owner of the car. Contrary to Mr. Burd’s assertions, evidence presented at the

suppression hearing does not establish that his passenger actually knew the car’s

owner or had the owner’s permission to drive the car. Furthermore, the vehicle’s

license plate and registration did not match. Under these facts, the district court

properly concluded that the officer followed FHP policy by impounding the car to

protect the public and the owner’s interest in the car.

      AFFIRMED.




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