          Revised February 12, 1999

       UNITED STATES COURT OF APPEALS
            For the Fifth Circuit



                No. 96-40687



          UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,


                   VERSUS


                EDGAR CASTRO,

                                      Defendant-Appellant.

  *****************************************


       ______________________________

                No. 96-40694
       ______________________________


          UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,


                   VERSUS


                SUSANA GOMEZ,

                                      Defendant-Appellant.




Appeals from the United States District Court
                           for the Eastern District of Texas


                                   January 28, 1999
Before KING,* Chief Judge, POLITZ,* JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.


PER CURIAM:

          On November 9, 1995, an officer of the Polk County Sheriff’s

Department stopped a Chevrolet Suburban traveling north on Highway

59,       in   Texas,      for   speeding   and        seat   belt    violations.         He

subsequently arrested two of the three occupants for seat belt

violations,          and     impounded   the      Suburban.          At    the   sheriff’s

department a search of the Suburban revealed over 900 pounds of

cocaine hidden in the back of the vehicle.                           Edgar Castro, the

driver, and Susana Gomez, the back seat passenger, were then

charged with conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. § 846, and possession with

intent         to   distribute     cocaine,       in    violation     of    21   U.S.C.   §

841(a)(1).2           When the district court denied their motions to

suppress evidence found during the search, Castro and Gomez pleaded




      *
       At the time of submission and oral argument Judge Politz was
Chief Judge. Judge King became Chief Judge on January 16, 1999.
          2
       Muriel Cristina Vicencio, the front seat passenger, was
charged for the same crimes. She is not a party to this appeal,
however.

                                              2
guilty to the charges and appealed.3       In that appeal we were asked

to decide whether the district court erred in not suppressing the

evidence.    A panel of this Court answered that question in the

affirmative, holding that the officer violated the Fourth Amendment

rights of Castro and Gomez by impounding the Suburban and searching

the vehicle.      United States v. Castro, 129 F.3d 752 (5th Cir.

1997).   We granted rehearing en banc, United States v. Castro, 143

F.3d 920 (5th Cir. 1998), and now hold that Castro and Gomez did

not suffer a violation of their Fourth Amendment rights.



                                   I.

       On the afternoon of November 9, 1995, several officers of a

joint state and federal task force were conducting surveillance of

Javier Vallejo, a suspected narcotics trafficker, at a mall in

Houston, Texas.    In the course of their surveillance the officers

noticed that Vallejo was accompanied by Gomez and an unidentified

Hispanic male.     Shortly after, the agents observed Gomez and the

unidentified male leaving the mall in a grey van.            Gomez was

subsequently dropped off at a K-Mart, where she made a telephone

call and bought some insignificant items, while her companion

detoured to a known stash house.       The unidentified male eventually

returned to K-Mart -- after engaging in several evasive maneuvers



   3
       Castro and Gomez reserved their right to appeal the district
court’s denial of their suppression motions.

                                   3
aimed at losing any possible surveillance -- and retrieved Gomez.

The agents then followed the pair to a local motel, where Gomez was

joined by Castro and Muriel Cristina Vicencio.

      From the motel Castro drove a blue Chevrolet Suburban to the

mall, while Gomez and Vicencio followed in two separate vehicles.

After going inside the mall for roughly fifteen minutes, the trio

left the mall in the Suburban and began to travel north on Highway

59.   Castro was driving, Vicencio occupied the front seat, and

Gomez occupied the rear seat.    Several members of the task force

followed the Suburban for approximately 115 miles through Harris,

Montgomery and San Jacinto Counties, and into Polk County.    After

the Texas Department of Public Safety informed the officers that it

did not have an available unit to stop the vehicle, officers of the

task force contacted the Polk County Sheriff’s Department for

assistance.

      In a brief conversation, Lieutenant Mike Nettles of the Polk

County Sheriff’s Department was given a description of the Suburban

and informed that it was “involved in a narcotics investigation.”

He was also instructed that he would have to “develop his own

probable cause” for stopping the vehicle. Officer Nettles, who had

positioned his patrol car in the median of Highway 59, watched the

Suburban as it passed and noticed that   Castro, the driver, was not

wearing his seat belt, and that the Suburban seemed to be traveling

at an excessive rate of speed.   Officer Nettles then followed the

Suburban for several miles and with his speedometer paced the

                                 4
Suburban at 67 m.p.h. in a 55 m.p.h. zone.                   While following the

vehicle Officer Nettles also observed that Vicencio, the front seat

passenger, was not wearing her seat belt, and that the vehicle

appeared to have a heavy rear load which was causing it to sway

sightly.

         Officer Nettles then stopped the Suburban for speeding and

seat belt violations.          On approaching the vehicle Officer Nettles

again observed that Castro and Vicencio were not wearing their seat

belts.      In the ensuing conversation, Castro produced a valid

Maryland driver’s license and explained that all three of the

occupants were from out of state.              Officer Nettles ran a check on

Castro’s      license,    which      revealed       no    outstanding     warrants.

Nonetheless, after receiving several conflicting statements from

the occupants, and based on their nervous demeanor, Nettles decided

to   arrest    Castro    and   Vicencio       for   the   seat    belt   violations.

Officer Nettles also requested Castro’s consent to search the

Suburban, which was denied.           Castro and Vicencio were then taken

into custody;      the    Suburban    was      impounded    and    brought   to   the

sheriff’s department.4

         There, Castro again refused to consent to a search of the

Suburban.      A trained narcotics detection dog was subsequently

     4
       The sheriff’s department was a building and facility located
about six miles away from the place on Highway 59 where the
Suburban was initially stopped. Gomez, the back seat passenger,
was not taken into custody.      She was taken to the sheriff’s
department, however, because she was not an authorized driver on
the Suburban’s rental agreement.

                                          5
brought to the sheriff’s department and walked around the Suburban.

After the dog alerted to the rear of the Suburban, the vehicle was

entered and searched, uncovering almost 900 pounds of powder

cocaine, packaged in two-kilogram bricks contained in several large

trash bags.

     On December 7, 1995, the three occupants were indicted by a

federal grand jury on one count of conspiring to possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846, and

one count of possession with the intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1).      Castro and Gomez subsequently

filed motions to suppress the cocaine as evidence based on the

contention that Officer Nettles had violated their rights under the

Fourth Amendment.    A suppression hearing was held over the course

of two days, in which the district court heard testimony from

roughly a dozen witnesses.   On March 15, 1996, the district court

denied the motions to suppress in a lengthy and detailed memorandum

order.   Castro and Gomez then pleaded guilty to the two charges,

reserving their right to appeal the district court’s ruling on the

suppression issue.   Castro and Gomez were sentenced to 135 months

of imprisonment for each count, to run concurrently, and a five

year term of supervised release.       Gomez and Castro (“appellants”)

each filed timely notices of appeal.



                                II.

     The sole issue we must decide in this appeal is whether the

                                   6
district court correctly found that Officer Nettles’ conduct did

not violate the Fourth Amendment.    In reviewing a district court's

ruling on a motion to suppress, we review questions of law de novo,

and accept the trial court's factual findings unless they are

clearly erroneous.     United States v. Carrillo-Morales, 27 F.3d

1054, 1060-61 (5th Cir. 1994), cert. denied, 513 U.S. 1178 (1995).

We also view the relevant evidence in a light most favorable to the

party that prevailed; in this case, the government.   United States

v. Nichols, 142 F.3d 857, 866 (5th Cir. 1998).

     In this appeal the appellants contend that Officer Nettles

exceeded the scope of his authority under the Fourth Amendment by

arresting Castro and Vicencio for seat belt violations, and by

later searching the Suburban at the sheriff’s department.       The

appellants rest that contention on three separate theories.      We

review each in turn.



                                A.

     The appellants first argue that the arrests of Castro and

Vicencio for seat belt violations were unlawful because Texas is a

party to the Nonresident Violator Compact (“NVC”), Tex. Transp.

Code Ann. § 703.002 (Vernon Pamph. 1998).        That compact, the

appellants insist, requires a police officer to issue a nonresident

motorist a citation in lieu of arrest on the motorist’s promise to




                                 7
appear.5     The     appellants    conclude   that,    because   the   arrests

violated     the     NVC,   the    subsequently   discovered     cocaine    is

inadmissible as “fruit of the poisonous tree.”                See Segura v.

United     States,    468   U.S.    796,   804    (1984)   (observing      that

exclusionary rule reaches not only primary evidence obtained as

direct result of illegal search or seizure, but also evidence later

discovered and found to be derivative of illegality, or "fruit of

the poisonous tree").         We note, as an initial matter, that our

consideration of this issue is colored by the fact that the

appellants never raised this issue below.             Accordingly, we review

their argument under the plain error standard.

     To prevail on a claim raised for the first time on appeal, an

appellant must show (1) the existence of actual error; (2) that the

error was plain; and (3) that it affects substantial rights.

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc), cert. denied, 513 U.S. 1196 (1995).          When these elements are

satisfied, a court has the discretion to correct forfeited errors

if they "seriously affect the fairness, integrity, or public


     5
         The NVC provides in pertinent part:

            (a)   When issuing a citation for a traffic
            violation, a police officer shall issue the
            citation to a motorist who possesses a
            driver’s    license  issued    by  a   party
            jurisdiction and shall not . . . require the
            motorist   to   post  collateral  to  secure
            appearance.

Tex. Transp. Code Ann. § 703.002 (Vernon Pamph. 1998).

                                       8
reputation of judicial proceedings.”                    United States v. Calverley,

37 F.3d 160, 164 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.

1196       (1995).     In   Calverley     we     explained    plain    error    in    the

following terms: “[p]lain is synonymous with ‘clear’ or ‘obvious,’

and ‘[a]t a minimum,’ contemplates an error which was ‘clear under

current law’ at the time of trial."                 Id. at 162-63 (quoting United

States       v.   Olano,    507   U.S.   725,     734    (1993)).      Applying      this

stringent standard to the facts of this case, we cannot conclude

that plain error resulted from the district court’s denial of the

motions to suppress.

       Though the NVC was adopted by the Texas legislature more than

twenty years ago, there are no published decisions in the Texas

courts, in the federal courts comprising the Fifth Circuit, or in

the other state courts within this Circuit, construing the NVC as

limiting the authority of a state police officer to make an arrest

of a nonresident.           The absence of clear law on the NVC existed at

the time of the suppression hearing, and persists now as we decide

this appeal.

       In sharp contrast, from the time of the suppression hearing

until       present,   Texas      statutes       have    expressly    allowed   police

officers to arrest a person for failure to wear a seat belt.6


       6
       The Texas Transportation Code provides that "[a] peace
officer may arrest without a warrant a person found committing a
[traffic] violation." Tex. Transp. Code Ann. § 543.001 (Vernon
Pamph. 1998).    The Transportation Code allows for only two
exceptions to the above rule:      speeding and open container

                                             9
Similarly, the Texas courts have recognized that motorists may be

arrested for seat belt violations.    See Valencia v. State, 820

S.W.2d 397, 399 (Tex. App.--Houston [14th Dist.] 1991, pet. ref’d)

(holding that passenger of a van was subject to arrest for a seat

belt offense); Madison v. State, 922 S.W.2d 610, 612 (Tex. App.--

Texarkana 1996, pet. ref’d) (stating that a peace officer may

arrest a driver for failure to wear a seat belt).

     Thus, even if we assume for the sake of argument that error

resulted with regard to the NVC, it would be impossible to conclude

that any such error was plain at the time of the suppression

hearing.   We reject the appellants’ claim that the arrests were

unlawful in light of the NVC.



                                B.

     The appellants next argue that Officer Nettles violated the

Fourth Amendment because the actions he took after stopping the

Suburban exceeded the scope of permissible governmental intrusion

allowed under Terry v. Ohio, 392 U.S. 1 (1968).   In particular, the

appellants contend that by arresting Castro and Vicencio, and

seizing the Suburban, Officer Nettles elevated what was otherwise


violations. Tex. Transp. Code Ann. § 543.004(a)(1) (Vernon Pamph.
1998) (stating that an officer shall issue a written notice to
appear if the offense charged is speeding or a violation of the
open container law). Therefore, a violation of the state seat belt
law is not an offense which requires a citation; a motorist can be
arrested for the violation.    Tex. Transp. Code Ann. § 545.413
(Vernon Pamph. 1998).

                                10
an ordinary Terry stop into full-blown arrests that required

probable cause. That point is critical to the appellants’ argument

because in their view there was no probable cause supporting the

arrests of Castro and Vicencio.7

     It is well established that under the Fourth Amendment a

warrantless arrest must be based on probable cause.        United States

v. Shugart, 117 F.3d 838, 846 (5th Cir.), cert. denied, 118 S. Ct.

433 (1997).   Probable cause exists when the totality of facts and

circumstances within a police officer's knowledge at the moment of

arrest are sufficient for a reasonable person to conclude that the

suspect had committed, or was in the process of committing, an

offense.   Id. (quotations and citations omitted).        The presence of

probable cause is a mixed question of fact and law.        United States

v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995), cert. denied, 117 S.

Ct. 240 (1996).    We will not disturb the factual findings of the

district   court   absent   clear    error,    although    the   ultimate

determination of whether there is probable cause for the arrest is

a question of law we review de novo.     Id.

     In the present case, the district court took testimony from

nearly a dozen witnesses during a suppression hearing that lasted


     7
        A defendant normally bears the burden of proving by a
preponderance of the evidence that the challenged search or seizure
was unconstitutional. United States v. Roch, 5 F.3d 894, 897 (5th
Cir. 1993). In a case like the present, however, in which the
officer acted without a warrant, the government bears the ultimate
burden of proving that the officer had probable cause. Id.

                                    11
roughly two days.        At that hearing Officer Nettles testified that

Castro was not wearing his seat belt when the Suburban passed his

patrol car which was stationed on the highway median.                  He also

stated that he noticed that Vicencio was not wearing her seat belt

while he    was   pacing    the   Suburban.       Finally,   Officer   Nettles

testified that he again observed that Castro and Vicencio were not

wearing their seat belts when he approached the stopped Suburban.

Although the appellants took the stand at the suppression hearing

and contradicted Officer Nettles’ testimony, the district court did

not accept their version of events.               In its written memorandum

order the district court found that Officer Nettles’ testimony was

more credible, and found that Castro and Vicencio were in fact not

wearing their seat belts.

     Similarly,      at    the    suppression     hearing    Officer   Nettles

testified that from the median he could see that the Suburban was

traveling at a high rate of speed.          He further stated that he paced

the Suburban traveling 67 m.p.h. in a 55 m.p.h. zone, and watched

the Suburban pass several vehicles. The appellants contested those

findings by questioning the accuracy of the speedometer in Officer

Nettles’ patrol car, and by testifying that the speedometer in the

Suburban never registered above the legal limit.              Faced with this

conflicting testimony, the district court chose to credit Officer

Nettles’ account.         In its memorandum order the district court

expressly found that the Suburban was in fact speeding.

     To    justify   a    reversal   of     the   district   court’s   factual

                                       12
findings, the record would need to clearly demonstrate that those

findings were in fact wrong.               But as the Supreme Court has

observed, "when a trial judge's finding is based on his decision to

credit the testimony of one of two or more witnesses, each of whom

has told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error."              Anderson v.

City of Bessemer City, 470 U.S. 564, 575 (1984).                 Here, the

district   court    observed    the    witnesses,     weighed   conflicting

testimony, and made a determination that Officer Nettles’ version

of events was more credible.     On the record of this case we are not

prepared   to      say   that   the        district   court's   credibility

determinations and ensuing factual findings were clearly erroneous.

     Accordingly, as there is no reasonable basis for challenging

the district court’s findings that the Suburban was speeding, and

that Castro and Vicencio were not wearing their seat belts, we

conclude that Officer Nettles had reasonable suspicion to stop the

Suburban, and probable cause to arrest Castro and Vicencio for

violating the seat belt law.      We affirm the district court on this

issue.

     We likewise reject the appellants' vague claim that the

impoundment and search of the Suburban exceeded the scope of

permissible intrusion under the Fourth Amendment.               As we have

concluded that the Suburban was lawfully stopped, and that Castro


                                      13
and Vicencio were lawfully under arrest, the impoundment of the

Suburban      was    permissible    so    long    as   it    was    carried      out   in

furtherance of a community caretaking function.                         South Dakota v.

Opperman, 428 U.S. 364, 368 (1976); United States v. Ponce, 8 F.3d

989, 996 (5th Cir. 1993).               The evidence supports the conclusion

that the Suburban was impounded in accordance with Officer Nettles'

community caretaking function.                  Following the impoundment, an

inventory search was authorized, was interrupted only temporarily

by the alert of a drug-sniffing dog on the vehicle, and inevitably

would have led to the discovery of the drugs.



                                           C.

       The   appellants’        final   argument    relates        to    the   issue   of

pretext.      Specifically, the appellants contend that their Fourth

Amendment rights were violated because Officer Nettles’ actions

were    motivated by his suspicion that the appellants were engaged

in drug trafficking when there was no probable cause to that

effect.      Although conceding that under United States v. Whren, 517

U.S. 806 (1996), Officer Nettles’ subjective beliefs have no

bearing on the legality of the initial stop of the Suburban, the

appellants insist that his motives transformed the subsequent

impoundment         into   an   unreasonable       seizure     under       the   Fourth

Amendment.      Notably, it was on this basis that the panel majority

reversed the district court.               See Castro, 129 F.2d at 758 (“We


                                           14
perforce must conclude that taking possession of the Suburban for

purposes of an inventory search was nothing more than a ruse to

perform an unauthorized search”).         We now reject that contention.

     The    thrust   of   the   appellants’    contention   is   that   the

impoundment was unreasonable based on the subjective motives of

Officer Nettles.     That argument, however, is intrinsically flawed.

It is well settled that the reasonableness inquiry under the Fourth

Amendment is an objective one, Ohio v. Robinette, 117 S. Ct. 417,

421 (1996), wholly divorced from the subjective beliefs of police

officers.    United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.

1987).     “[S]o long as police do no more than they are objectively

authorized and legally permitted to do, their motives in doing so

are irrelevant and hence not subject to inquiry.”           Id. at 1184.

Accordingly, we reject the appellants’ contention that Officer

Nettles’ hidden motives invalidated what was an otherwise lawful

impoundment carried out in accordance with the standard procedures

of the Polk County Sheriff’s Department.



                                   III.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




                                    15
POLITZ, Circuit Judge, dissenting:



        I view the fourth amendment as an invaluable part of the constitutional framework of our

American society. I am persuaded beyond peradventure that the pretextual arrest, vehicle

impoundment, and search in the instant case are constitutionally offensive. The evidence

gathered from the search of the vehicle should be suppressed for the facts as noted and the

reasons set forth in the panel opinion, United States v. Castro, 129 F.3d 752 (5th Cir. 1997).

        This case presents the unique situation of an admittedly pretextual stop and arrest,

followed by a pretextual impoundment, to obtain a pretextual inventory search for drugs the

agents suspected were in the vehicle. These agents, state and federal, admittedly did not have

probable cause to make an arrest, and stood by as mere observers when the deputy made the stop

and arrest for the failure to wear seat belts. While each of the actions could be upheld if some

other lawful basis existed, as the majority is quick to note, there must be a point where the

combination of pretext and continuing bad faith cannot be tolerated if the fourth amendment

protections are to have any meaning whatsoever. In my opinion, the facts and circumstances of

this case, viewed clearly and objectively, present just such a situation.

        It is my perception that technical distortions and expansion of exclusionary rule

exceptions threaten to make the fourth amendment a hollow shell of its former self. The

treatment accorded by the majority opinion belies the very essence of the fourth amendment.

Accordingly, I must dissent therefrom.


g:\opin\96-40687.ebr
g:\opin\96-40687.ebr   17
DENNIS, Circuit Judge, dissenting.



        I respectfully dissent from the majority opinion.                       I agree

fully      with        the    conclusions   and     sentiments    of   Judge   Politz’s

dissenting opinion.                As he points out,        this is not a typical

automobile inventory case but a “unique situation of an admittedly

pretextual stop and arrest, followed by a pretextual impoundment,

to     obtain          a     pretextual   inventory     search     for   drugs”--“[a]

combination of pretext and continuing bad faith [that] cannot be

tolerated [under] the Fourth Amendment[].”                       Indeed, the evidence

demonstrates beyond any doubt that from the very beginning it was

the     investigatory            motive   of   the    Houston     Police-DEA-FBI    law

enforcement unit to search defendants’ vehicle for illegal drugs

that instigated and orchestrated all of the federal, state and

local law officers’ actions towards the defendants.                       Toward this

investigatory end, the law enforcement officers in bad faith

attempted to use a pretextual traffic offense arrest, a pretextual

impoundment of the defendants’ vehicle and a pretextual inventory

of the vehicle as a ruse for a warrantless drug search.                        Because a

bad faith, pretextual automobile inventory does not create any

exception to the warrant requirement, the planned inventory search

in this case would have been unconstitutional had it been carried

out. Therefore, the prophesied inventory can not serve as a “lawful

g:\opin\96-40687.ebr                           18
means” by which the drugs could have been discovered under the

ultimate or inevitable discovery exception to the exclusionary

rule.        While I join in Judge Politz’s dissenting opinion, I add

this brief opinion to point out specifically how the Supreme

Court’s decisions clearly support our conclusions and indicate that

the    panel       opinion    was    correct     and    should   be   reinstated     and

affirmed.

        An     ultimate      or     inevitable    discovery       exception    to    the

exclusionary rule was recognized by the Supreme Court in Nix v.

Williams,        467   U.S.   431     (1984).      In    that    case,   the   evidence

supported a finding that a search party ultimately or inevitably

would have discovered the victim’s body even had the defendant,

whose statement directing police to the site was the result of a

postarrest interrogation in violation of his right to counsel, not

been questioned by the police.                 The Court succinctly defined the

exception: “If the prosecution can establish by a preponderance of

the evidence that the information ultimately or inevitably would

have been discovered by lawful means--here the volunteers’ search--

then the deterrence rationale has so little basis that the evidence

should be received.” Id. at 444 (emphasis added).                     Accordingly,    in

the present case the prosecution, in order to avail itself of the

inevitable discovery exception, would have had to establish by a

preponderance of the evidence that the drugs in the defendant’s

vehicle would have been ultimately or inevitably discovered by the

lawful means of a lawful inventory had the police not conducted an

g:\opin\96-40687.ebr                        19
unconstitutional warrantless search in the absence of exigent

circumstances.8

        The inventory of the defendants’ vehicle that the majority

opinion hypothesizes that officer Nettles would have conducted (had

the unlawful warrantless drug dog assisted search not occurred)

would not have been a lawful means of discovery because it would

have been a bad faith, pretextual inventory.              It is true that the

Supreme Court has “never held, outside the context of inventory

search or administrative inspection..., that an officer’s motive

invalidates            objectively   justifiable   behavior   under   the   Fourth

Amendment[.]”            Whren v. United States, 517 U.S. 806, 812 (1996).

But the Court has repeatedly indicated for discerning readers that

improper ulterior motives will invalidate police conduct in the

context of inventory searches.              In Whren, id. at 811, the Court

acknowledged that in Florida v. Wells, 495 U.S. 1, 4 (1990), it

stated that “an inventory search must not be used as a ruse for a

general rummaging in order to discover incriminating evidence”;

that in Colorado v. Bertine, 479 U.S. 367, 372 (1987), in approving

         8
      Because the officers did not have probable cause to search
the defendants’ vehicle for drugs at the time of the arrest, the
fact that such probable cause arose after the vehicle was removed
from the highway and impounded did not on its own, in the absence
of demonstrated exigent circumstances, provide a constitutional
basis for a search of the vehicle without a search warrant. See
Chambers v. Maroney, 399 U.S. 42, 51 (1970) (“Only in exigent
circumstances will the judgment of the police as to probable cause
serve as a sufficient authorization for a search.”     Id. at 51,
citing Carroll v. United States, 267 U.S. 132, 153 (1925)).
Accordingly, that theory cannot be used to support the judgment
herein.

g:\opin\96-40687.ebr                       20
an inventory search, the Court thought it significant that there

had been “no showing that the police, who were following standard

procedures,            acted   in   bad     faith     or    for    the   sole   purpose    of

investigation”; and that in New York v. Burger, 482 U.S. 691, 716-

717,      n.     27     (1987)      the     Court     observed,      in      upholding    the

constitutionality of a warrantless administrative inspection, that

the search did not appear to be “a ‘pretext’ for obtaining evidence

of...violation of...penal laws.”                    Significantly, the Supreme Court

in South Dakota v. Opperman, 428 U.S. 364, 376 (1976), setting

forth the high court’s first full articulation of the inventory

exception, in approving an inventory after impoundment of a car

left     illegally        parked      for   an    extended        period,    expressed    the

following caveat:              “[T]here is no suggestion whatever that this

standard procedure, essentially like that followed throughout the

country, was a pretext concealing an investigatory police motive.”

(Footnotes omitted).

        The evidence overwhelmingly demonstrates that everything the

police did in the present case was a pretext or ruse that was meant

to conceal the Houston-DEA-FBI unit’s investigatory police motive

and actions to search the defendants’ vehicle for evidence of

suspected        illegal       drug    activity.           The    district    court   either

committed an error of law by assuming that the police officers’ bad

faith, pretextual motives and pretextual conduct cannot invalidate

an inventory search under the Fourth Amendment or made clearly

erroneous factual findings by ignoring the clear and convincing

g:\opin\96-40687.ebr                             21
proof of such ulterior motives and bad faith conduct.           Because the

majority         has   repeated   the   same   constitutional   errors,   I

respectfully dissent.




g:\opin\96-40687.ebr                    22
