                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50130

              Plaintiff-Appellee,                D.C. No. 3:16-cr-01249-H-1

 v.
                                                 MEMORANDUM*
LAMONTE DIONDRE GASTON, AKA
Crazy L,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                       Argued and Submitted August 8, 2018
                               Pasadena, California

Before: GRABER, WARDLAW, and CHRISTEN, Circuit Judges.

      Lamonte Gaston, Sr. (Gaston) was convicted of being a felon in possession

of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Gaston appeals the district court’s order denying his motion to suppress evidence




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
discovered during a warrantless search of his vehicle.1 We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      The district court’s findings of fact at a suppression hearing are reviewed for

clear error. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986).

      1.     A reasonable inventory search is “a well-defined exception to the

warrant requirement” because “[t]he policies behind the warrant requirement are

not implicated in an inventory search.” Colorado v. Bertine, 479 U.S. 367, 371

(1987). “[A]n inventory search must conform to a standardized and established

local procedure.” United States v. Bowhay, 992 F.2d 229, 230 (9th Cir. 1993).

Inventory search procedures can be formed by “standardized criteria or established

routine.” Florida v. Wells, 495 U.S. 1, 4 (1990) (emphasis added) (citation

omitted).

      In this case, officers from the San Diego Police Department (“SDPD”)

arrested Gaston in his vehicle pursuant to a valid misdemeanor arrest warrant and

then impounded the car he had been driving. SDPD policy provides that

“[p]ersonnel ordering a tow shall conduct an inventory.” Section (a) of the policy

authorizes officers to search “all areas of the vehicle where valuables are likely to



      1
             The parties are familiar with the facts so we recite only those
necessary to resolve Gaston’s appeal.
                                           2
be stored, including any containers within the vehicle.” While conducting an

inventory search of Gaston’s car, officers opened the trunk and found a lock box.

When the officers asked Gaston about its contents, he responded that “there was a

whole bag of jewelry inside.”

      At an evidentiary hearing, SDPD officers testified that they routinely open a

locked container if it is “reasonably available to be opened at the scene” and “as

long as they’re not damaging the box or breaking it.” The district court found,

based in part on the officers’ testimony, that the SDPD had a routine practice of

opening locked containers if they can be readily opened during an inventory

search. This finding was not clearly erroneous and the routine practice does not

conflict with the SDPD’s written policy. Accordingly, the district court’s finding

that the search was conducted within the framework of sufficiently established

policy and practice was not clearly erroneous. See Wells, 495 U.S. at 4.

      2.     As the dissent rightly observes, the facts suggest that one of the

searching officers’ motives was an ongoing criminal investigation. Although “an

inventory search is invalid if it was a pretext for an investigative search,” a search

conducted with the dual motives of inventory and investigation is permissible.

Bowhay, 992 F.2d at 231. The district court found that the officers were motivated,

at least in part, by policy requiring an inventory search for valuable items. On the


                                           3
record before us, we cannot say that this finding was clearly erroneous.

      SDPD policy requires officers to search areas where “valuable items” are

likely to be kept during an inventory search. The inventorying officers testified

that they were “looking for valuables” when they opened the lock box because

“usually people keep valuable stuff in lock boxes.” Notably, the officers’ actions

were consistent with Gaston’s statement that the lock box contained jewelry. The

officers “wanted to make sure that if there was a whole bag of jewelry in there that

it needs to be itemized and documented prior to any impounds.”

AFFIRMED.




                                          4
                                                                         FILED
United States v. Gaston, No. 17-50130
                                                                          OCT 23 2018
WARDLAW, Circuit Judge, dissenting:                                   MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

      I respectfully dissent. The district court clearly erred by finding that the

officers’ search of the car was “reasonably designed to produce an inventory.”

Most significantly, the officers did not in fact produce an “inventory.” There is

nothing in the record that even remotely resembles an “inventory,” a “caretaking

procedure[] . . . to itemize the property to be held by the police.” South Dakota v.

Opperman, 428 U.S. 364, 370–71 (1976) (internal quotation marks and citation

omitted).

      By contrast, as the officers’ incident reports reveal, the search took place as

part of an “investigation.” Written department inventory policy requires officers to

list all “items of value” in the vehicle report. The officers here failed to do so. The

vehicle report cross-references the arrest report, which describes the lock box and its

contents under the section heading for “investigation.” Moreover, the officers

neglected to report any of the other items of value they found while searching

Gaston’s car, including a Wii video game player, a DVD player, a leather jacket, and

tools. And under the heading for “related reports,” where one would expect officers

to account for inventory, the arrest report simply reads: “NONE.”

      By way of explanation, an officer testified that the omission of other items

found in the car from the vehicle report signified that they “didn’t have value.”

                                          1
The officer’s post hoc rationalization strains credulity. For one, the officer had,

seconds earlier, testified that jewelry, cash, and electronics are among the types of

valuables officers would have listed on a vehicle report. But a DVD player and

Wii video game player are unequivocally “electronics.” For another, the same

officer also testified that they decided to open the lock box because when asked

about its contents, Gaston answered that “there was a whole bag of jewelry inside,”

and, therefore, the officers wanted to ensure they inventoried the jewelry before

impounding the car. Video footage of the incident, however, proves otherwise. It

shows that the officers did not inquire further as to the type of jewelry in the lock

box. Instead, one officer shook the box and handed it to another officer, who said,

“Sounds like there’s something heavy like a gun. Come on, Guy, tell me.” The

officers’ “inventory” search was but “a ruse for general rummaging in order to

discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990).

      We provide an exception for inventory searches because unlike investigative

searches, inventory searches serve to protect the owner’s property while in police

custody, guard the police from danger, and insure the police against claims of lost,

stolen, or vandalized property. Opperman, 428 U.S. at 369. Here, the officers

knew Gaston was homeless. It was therefore much more probable that the

electronics and other valuable items in Gaston’s car that the officers declared

“didn’t have value” were in fact the kind of valuables the officers should have

                                           2
inventoried to protect them against property claims. By failing to safeguard

Gaston’s valuables, then, the officers’ actions undermined a key purpose for

permitting warrantless inventory searches in the first place.

      The panel majority misstates the district court’s finding. The district court

did not find dual motives for the search. The district court instead ruled that “the

totality of the circumstances show that it was an inventory search.” The panel

majority’s reliance on United States v. Bowhay, 992 F.2d 229 (9th Cir. 1993), is

thus misplaced. The district court clearly erred in finding that the officers acted

here solely to conduct an inventory search. See United States v. Johnson, 889 F.3d

1120, 1126–27 (9th Cir. 2018). I would therefore reverse the district court’s denial

of the motion to suppress.




                                          3
