                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11666         ELEVENTH CIRCUIT
                                        Non-Argument Calendar    DECEMBER 29, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                          D.C. Docket No. 1:09-cr-00324-WSD-RGV-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                                versus

PHILLIP BRIAN JEFFERSON,
a.k.a. Phillip Jefferson,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

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

                                           (December 29, 2011)



Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
      Phillip Jefferson appeals his conviction for possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The only

issue on appeal is whether the evidence found in Jefferson’s car after a traffic

stop– including cocaine and a gun– should have been suppressed. The government

argues that the search was properly conducted during a routine inventory search

after the car was deemed “abandoned.” Jefferson argues that the vehicle was not

“voluntarily” abandoned because he left the car while fleeing to avoid the

excessive use of force by the police officer.

      The facts elicited at the suppression hearing indicated that Jefferson’s

vehicle was stopped by Richard Barthelemy, an officer with the Atlanta Police

Department (“APD”), for speeding and driving with an expired tag. During the

traffic stop, an altercation occurred between Jefferson and Barthelemy, and

Jefferson fled the scene. Following Jefferson’s flight, Barthelemy conducted an

inventory search of the vehicle pursuant to an APD policy directing inventory

searches to be performed on vehicles with expired tags abandoned on city streets.

The search revealed the cocaine for possession of which Jefferson was convicted.

On appeal, Jefferson argues that he did not abandon the vehicle. Rather, he

argues that he had to flee due to Barthelemy’s unreasonable use of force.

      Rulings on motions to suppress involve mixed questions of fact and law.

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United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir.1994). Abandonment

involves a factual issue which is generally reviewed under a clearly erroneous

standard. United States v. McKennon, 814 F.2d 153 (11th Cir. 1987).

      The government bears the burden of proving abandonment, and seizure of

evidence may not be contested as violative of the Fourth Amendment if the

evidence has been abandoned. United States v. Cofield, 272 F.3d 1303, 1306

(11th Cir. 2001). Evidence may be deemed abandoned upon an individual’s

relinquishment of possession or control over it. Id. at 1306-07. The critical

inquiry in determining whether property has been abandoned is “whether the

person prejudiced by the search . . . voluntarily discarded, left behind, or otherwise

relinquished his interest in the property in question so that he could no longer

retain a reasonable expectation of privacy with regard to it at the time of the

search.” Ramos, 12 F.3d at 1022 (quotations and citations omitted) (emphasis in

original).

      Although abandonment that is merely the product of police misconduct

may not be voluntary, United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir.

1982), “[p]olice pursuit or the existence of a police investigation does not of itself

render abandonment involuntary.” United States v. Colbert, 474 F.2d 174 (5th

Cir. 1973). Here, the magistrate judge found that Jefferson did not retain a

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reasonable expectation of privacy in his vehicle because his flight from the scene

was not prompted by an excessive use of force by the police officer. Rather,

Jefferson’s abandonment was deemed voluntary, even crediting Jefferson’s

version of events. The magistrate found that Barthelemy was authorized to: (1)

order Jefferson to exit the vehicle; (2) take action to physically remove Jefferson

when he failed to comply; and (3) use pepper spray when it became obvious that

Jefferson was refusing to comply with Barthelemy’s orders and was physically

resisting. Further, the magistrate found that Jefferson had initiated the physical

confrontation by pushing Barthelemy’s arm out of the car window, and had

continued physically resisting during the struggle to get out of the car. On this

record, we find no clear error in the district court’s finding that Jefferson

abandoned his vehicle voluntarily, and not as a result of a police officer’s

excessive use of force.

      We have held that police officers may carry out warrantless inventory

searches of vehicles, provided that the search is conducted “pursuant to explicit

and comprehensive procedures,” such that officers have guidance in performing a

task that is not an investigatory technique, but instead aims to protect individuals’

possessions. United States v. Williams, 936 F.2d 1243, 1248 (11th Cir. 1991).

The government must establish, first, that the officers had the authority to

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impound the defendant’s vehicle, and second, that the officers complied with

departmental policy in conducting the search. Id. The reasonableness of an

inventory search depends on the particular facts and circumstances. United States

v. Laing, 708 F.2d 1568, 1571 (11th Cir. 1983).

      Here, the inventory search of Jefferson’s vehicle was conducted pursuant to

an APD policy allowing for the impounding and inventorying of vehicles

abandoned on city streets with expired tags. Accordingly, because Jefferson’s

abandonment of his vehicle was properly deemed voluntary, we affirm his

conviction.

      AFFIRMED.




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