     Case: 06-11374 Document: 00511286200 Page: 1 Date Filed: 11/05/2010




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

                                                 FILED
                                                                          November 5, 2010
                                     No. 06-11374
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

CLINTON WADE DUNSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                             USDC No. 4:06-CR-97-ALL


                  ON REMAND FROM THE SUPREME COURT
                        OF THE UNITED STATES

Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Clinton Wade Dunson appeals his guilty-plea conviction for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g), and his resulting
120-month sentence. The case returns to us following a limited remand to the
district court for the purpose of conducting an evidentiary hearing and any other
proceedings deemed necessary for a determination on the issue of inevitable
discovery after the Supreme Court of the United States vacated our initial


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 06-11374 Document: 00511286200 Page: 2 Date Filed: 11/05/2010

                                    No. 06-11374

judgment and remanded the case for further consideration in light of Arizona v.
Gant, 129 S. Ct. 1710 (2009). Following the evidentiary hearing, the district
court found that the warrantless search of Dunson’s vehicle, which was done
incident to his arrest and is now invalid under Gant, was nevertheless valid as
an inventory search done pursuant to standard police procedures. It therefore
found by a preponderance of the evidence that the inevitable discovery exception
to the exclusionary rule applied.
      We accept a district court’s findings made on a motion to suppress based
on live testimony “unless clearly erroneous or influenced by an incorrect view of
the law.” United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). “Under the
clearly erroneous standard, we will uphold a finding so long as it is plausible in
light of the record as a whole.” United States v. Ekanem, 555 F.3d 172, 175 (5th
Cir. 2009). The evidence is to be evaluated in the light most favorable to the
party prevailing in the district court, in this case, the Government. Foy, 28 F.3d
at 474.
      The district court found as a factual matter that the truck Dunson was
driving at the time of his arrest had the indicia of being stolen and that the
suspicion that Dunson was driving a stolen vehicle was one of the reasons that
Officer Stillman called for it to be impounded under the standard Bedford,
Texas, Police Department policy for impounding vehicles and conducting
inventory searches. Dunson now argues that, to the extent that the policy
permits officers to impound and conduct an inventory search of a vehicle on the
suspicion of theft without probable cause or a warrant, the policy violates the
Fourth Amendment. Specifically, he contends that the seizure of a vehicle on
the suspicion of theft fails to invoke the police’s caretaking function and is so
broad as to allow evidentiary searches under the guise of inventory searches. He
further contends that the facts failed to show that Officer Stillman had a
reasonable suspicion of theft in this case, particularly as Officer Stillman’s
memory was uncertain, making his testimony little more than mere speculation.

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                                  No. 06-11374

      Dunson cites no authority for his argument that the policy of impounding
a vehicle suspected to be stolen does not implicate the community caretaking
function of the police. The argument is unpersuasive. As the Government
contends, a critical aspect of the community caretaking function is to protect
property, which, in the case of a suspected theft, necessarily involves securing
the vehicle until the rightful owner is located. Cf. United States v. Andrews, 22
F.3d 1328, 1334 (5th Cir. 1994); United States v. Staller, 616 F.2d 1284, 1289
(5th Cir. 1980).   The district court’s implicit finding that the BPD policy
permitting impoundment of suspected stolen vehicles serves a proper community
caretaking purpose is plausible in light of the record and is therefore not clearly
erroneous. See Ekanem, 555 F.3d at 175.
      Similarly, when viewed in the light most favorable to the Government,
Officer Stillman’s uncontroverted testimony established a valid suspicion that
the truck Dunson was driving was likely stolen, given the following: Dunson
was not the owner of the truck; the truck bore a false registration sticker which
had been issued to a Cadillac, removed from that vehicle, and placed on the
truck; the truck also bore an obviously forged inspection sticker; and Dunson
was unable to answer questions about his authority to drive the vehicle in a
satisfactory manner. The district court’s finding that Officer Stillman had a
reasonable suspicion that Dunson was driving a stolen truck is plausible in light
of the record and will be upheld. See Ekanem, 555 F.3d at 175.
      Thus, Officer Stillman acted pursuant to normal police procedures in
impounding the truck Dunson was driving based on his suspicion that the truck
was stolen, which fact would have resulted in an inventory search of the truck;
the inventory search in turn would have inevitably uncovered the gun and the
drugs at issue. See Florida v. Wells, 495 U.S. 1, 4-5 (1990); Andrews, 22 F.3d at
1334. As the district court determined, its denial of Dunson’s motion to suppress
may therefore be upheld under the inevitable discovery doctrine, despite the



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                                  No. 06-11374

invalidity of the search as incident to Dunson’s arrest under Gant. See Jackson,
596 F.3d at 241.
      Dunson urges that because Officer Stillman offered two possible reasons
for impounding the truck, suspicion of theft and the poor condition of the vehicle,
but was unable to specify on which reason he actually relied, this court must find
that both proffered reasons warranted an inventory search before the district
court’s ruling can be affirmed. However, he misconstrues the nature of the
district court’s findings. Although Officer Stillman testified that he could not
recall exactly which of the two proffered reasons was the basis for his having
called a tow truck to impound the vehicle, the district court found that it could
infer from his testimony that the suspicion of theft was a reason, if not the sole
reason, that Officer Stillman impounded the vehicle. Because the district court
definitively found that suspicion of theft was one of the reasons Officer Stillman
acted, because the finding is plausible in light of the record, and because the
officer’s suspicion authorized the impoundment and inventory search under
normal police procedures, this court need not address the validity of the
additional proffered reason, the poor condition of the vehicle.
      The district court’s judgment is AFFIRMED.




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