     Case: 10-11072     Document: 00511680299         Page: 1     Date Filed: 11/30/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 30, 2011
                                     No. 10-11072
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCUS MOTTON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-16-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        On appeal from his convictions for being a felon in possession of firearms,
in violation of 18 U.S.C. § 922(g), Marcus Motton challenges the district court’s
denial of his pretrial motion to suppress the firearms discovered in his vehicle
at the time of his arrest. The parties conceded at the suppression hearing that
the search was invalid following Arizona v. Gant, 556 U.S. 332 (2009), and
Motton argues that the district court erred in determining that the search was
a valid inventory search. The Government counters that the search of Motton’s

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-11072

vehicle was done incident to his arrest, that the officers acted in good-faith
reliance on pre-Gant caselaw, and that the search must therefore be upheld
under the good-faith exception to the exclusionary rule. Motton makes no
argument regarding the good-faith exception.
      We review the district court’s factual findings for clear error and its legal
conclusions de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); United
States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010). “A factual finding is not
clearly erroneous as long as it is plausible in light of the record as a whole.”
Gomez, 623 F.3d at 268 (internal quotation marks and citation omitted). The
evidence and inferences therefrom are reviewed in the light most favorable to
the Government as the prevailing party. Id.
      Viewing the evidence in the light most favorable to the Government, the
record demonstrates that the officers searched Motton’s vehicle incident to his
lawful arrest, relying in good faith on then-binding caselaw holding such
searches to be valid. Although that caselaw has since been overturned by Gant,
the good-faith exception to the exclusionary rule applies to preclude suppression.
See Davis v. United States, 131 S. Ct. 2419, 2428-29 (2011); United States v.
Curtis, 635 F.3d 704, 713-14 (5th Cir.), cert. denied, ___ S. Ct. ___, 2011 WL
4532104 (Oct. 3, 2011).
      Alternatively, and assuming arguendo that the search in this case was not
done incident to arrest but was an inventory search in the first instance, the
inventory search was valid. See United States v. Prescott, 599 F.2d 103, 105 (5th
Cir. 1979) (recognizing inventory searches of automobiles as an exception to the
Fourth Amendment’s warrant requirement).             Motton contends that the
inventory search was unlawful because impoundment of his vehicle was
unnecessary, urging that his car could have been left locked on the side of the
road until a family member arrived to pick it up. Motton additionally contends
that the record is devoid of evidence that standard inventory police procedures
were in place or were followed in this case.

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                                  No. 10-11072

      Motton has not demonstrated any clear error in connection with the
district court’s finding that the officers reasonably concluded that his car should
be impounded and acted pursuant to department policy in conducting an
inventory of the vehicle prior to having it towed. See Gomez, 623 F.3d at 268.
The undisputed testimony established that Officer Kendrick called for a tow
truck to impound Motton’s vehicle because it was blocking traffic on a busy
highway and could not be released to Motton’s passenger as he had a suspended
driver’s license. It similarly demonstrated that Officer Kendrick performed the
inventory pursuant to established departmental policy without any suspicion of
criminal activity. See Florida v. Wells, 495 U.S. 1, 4-5 (1990); United States v.
Andrews, 22 F.3d 1328, 1334-35 (5th Cir. 1994).            Although no written
impoundment policy was admitted, the officers’ testimony about the existence
of such policy was sufficient. See Andrews, 22 F.3d at 1334-35. Moreover,
Motton’s conclusional assertion notwithstanding, there is no contrary evidence
to suggest that Officer Kendrick did not follow appropriate procedures for
impounding Motton’s vehicle. See United States v. Bullock, 71 F.3d 171, 178 (5th
Cir. 1995).
      The district court properly denied Motton’s suppression motion.
Accordingly, its judgment is AFFIRMED.




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