                                                                           FILED
                                                                            NOV 19 2010
                             NOT FOR PUBLICATION                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                      UNITED STATES COURT OF APPEALS

                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 09-30424

                Plaintiff - Appellee,           D.C. No. 4:08-cr-00239-BLW

  v.
                                                MEMORANDUM *
JOSEPH PATRICK MULLANEY,

                Defendant - Appellant.


                     Appeal from the United States District Court
                               for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding **

                            Submitted November 4, 2010 ***
                                  Portland, Oregon




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   Although Judge Winmill entered Mullaney’s conviction, Judge Dale
A. Kimball, United States District Judge, District of Utah, denied Mullaney’s
suppression motion while sitting by special designation in the District of Idaho.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          1
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
Judge.****

      Joseph Patrick Mullaney appeals his conviction for conspiring with intent to

distribute methamphetamine. Mullaney argues that the district court erred by

refusing to suppress evidence obtained during a search of Mullaney’s vehicle by a

state trooper in which drugs were found in the car’s ashtray. Mullaney maintains

that the search of the vehicle was in violation of the Fourth Amendment because it

was neither a valid inventory search nor a search incident to arrest in compliance

with Arizona v. Gant, 129 S. Ct. 1710 (2009).

      The trial court’s factual findings underlying a decision on a suppression

motion are reviewed for clear error. United States v. Bowhay, 992 F.2d 229, 230

(9th Cir. 1993). Whether the facts establish a valid inventory search of the property

is reviewed de novo. Id. Probable cause determinations present mixed questions

of law and fact in which the legal issues predominate and are therefore subject to

de novo review. Ornelas v. United States, 517 U.S. 690, 697-98 (1996). Because

the evidence was obtained during a valid inventory search, we affirm.

      Mullaney’s vehicle was impounded after a traffic stop because neither

Mullaney nor his passenger had a valid driver’s license. An inventory search prior



       ****
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.

                                          2
to vehicle impoundment serves three functions: (1) to protect the owner’s property

while it remains in police custody; (2) to protect the police against claims or

disputes over lost or stolen property; and (3) to protect the police from potential

danger. South Dakota v. Opperman, 428 U.S. 364, 369 (1976). Compliance with a

standard impoundment procedure tends to ensure that the intrusion is limited to the

extent necessary to carry out the caretaking function. Id. at 374-75. In this case,

the applicable state procedure required officers to search any container, whether

locked or unlocked, within the vehicle.

      The state trooper complied with the procedure. Testimony from the trooper

and his supervisor indicated that it was proper under that procedure to search an

ashtray in a vehicle and to search under the ashtray if it looked askew. Based on

this testimony, the area searched was consistent with the procedure’s “any

container” provision. There is no basis to conclude that the inventory search was

outside of the scope of what was necessary to carry out the caretaking function.

      Furthermore, the presence of an investigative motive does not invalidate an

inventory search unless the inventory was pretext for an investigative search.

Bowhay, 992 F.2d at 231. Here, as in Bowhay, there were dual bona fide motives.

Moreover, like the procedure in Bowhay, the inventory and impoundment

procedure here did not provide officers with any discretion. In such circumstances,



                                           3
an investigative motive does not invalidate the inventory search. Id. The district

court’s decision denying the motion to suppress is thus affirmed.

AFFIRMED.




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