                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-3405
                                    ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *   Appeal from the United States
      v.                                  *   District Court for the Eastern
                                          *   District of Arkansas.
Tony Cornelius Best,                      *
                                          *
             Appellant.
                                    ___________

                              Submitted: January 13, 1998
                                  Filed: February 5, 1998
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit
      Judges.
                          ___________

BRIGHT, Circuit Judge.

      Tony Cornelius Best appeals the order denying his motion to suppress marijuana
seized from the door panel in the automobile he was driving. On February 25, 1997,
Best pleaded guilty by plea agreement to possession of marijuana with intent to
distribute, 21 U.S.C. § 841(a)(1). The conditional plea agreement reserved Best's right
to appeal the district court's denial of his motion to suppress. Because the motion to
suppress should have been granted if the district court determines Best has standing,
we vacate and remand for further proceedings.
                                I. BACKGROUND

      On August 6, 1996, Arkansas State Trooper Karl Byrd stopped Best's
automobile for weaving in Little Rock, Arkansas at approximately 12:30 a.m. Best,
heading back to Washington, D.C. after visiting his daughter in San Antonio, Texas,
was driving a Ford Taurus rented from Budget Car Rental at Washington Dulles
Airport. Best's friend Susan Thomas had rented the automobile.

       When Trooper Byrd started to issue a warning ticket for improper lane usage,
he performed a driver's license check on Best. The check showed that Best's driver's
license had been suspended for failure to appear on a ticket. Trooper Byrd wrote Best
a ticket for driving with a suspended license and informed Best that because he was not
a licensed driver, the automobile had to be towed. Trooper Byrd then conducted an
inventory search of the car. According to the government, Trooper Byrd looked
particularly for damage to protect the government and the wrecker service from false
claims against them.

       While checking the automobile, Trooper Byrd discovered the right front window
would only roll down part of the way and the back windows would not roll down at all.
When Trooper Byrd shined his flashlight into the right front window to see if there was
an obstruction, he saw what appeared to be a bundle of marijuana. Trooper Byrd then
pulled the inside door panel away from the right front door and saw a bundle of
marijuana. Trooper Byrd arrested Best and ordered the car towed to the Arkansas
State Police Troop A headquarters where the police completed the search. The police
seized a total of nineteen bundles of marijuana from the automobile.

       On December 8, 1996, at the conclusion of the suppression hearing, the district
court denied Best's motion to suppress the evidence. On February 25, 1997, Best
entered a conditional plea of guilty to the charge in the indictment. On August 27,
1997, the district court sentenced Best to a term of twenty-two months imprisonment,

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a four-year term of supervised release and a $100 special assessment. Best appeals the
district court's denial of his motion to suppress the evidence.

                   II. VALIDITY OF INVENTORY SEARCH

       We review the district court's factual findings on the motion to suppress for clear
error. United States v. Holloway, 128 F.3d 1254, 1255-56 (8th Cir. 1997). The district
court's ultimate ruling on a motion to suppress represents a legal ruling reviewed de
novo. Id.

       Best argues that the inventory search performed by Trooper Byrd exceeded the
permissible scope of a warrantless inventory search. The government contends that
Trooper Byrd reasonably searched in an effort to protect the police against damage
claims once he determined the automobile's windows would not operate properly.

       A warrantless inventory search of an automobile in police custody does not
violate the fourth amendment. United States v. Marshall, 986 F.2d 1171, 1173-74 (8th
Cir. 1993) (citing South Dakota v. Opperman, 428 U.S. 364, 369 (1976)). The
Supreme Court in South Dakota v. Opperman articulated the following three
justifications for an inventory search: (1) protection of the owner's property while in
police custody; (2) protection of the police from claims of lost, stolen or damaged
property; and (3) protection of the police from potential danger. 428 U.S. at 369.
However, these justifications for an inventory search do not justify an unlimited search
of the automobile. "The fourth amendment requires that an inventory search be
reasonable in scope." United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir. 1980).

      A warrantless inventory search must be done pursuant to "standard police
procedures" and for the purpose of "protecting the car and its contents." Opperman,
428 U.S. at 372, 373. The Tenth Circuit concluded in a case similar to the present case


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that a search exceeded the proper scope of an inventory search and suppressed cocaine.
Specifically, the Tenth Circuit opined:

      [a]lthough the permissible scope of an inventory search has not been well-
      defined, searching behind the door panel of a vehicle does not qualify as
      "standard police procedure," and does not serve the purpose of
      "protecting the car and its contents" under any normal construction of
      those terms, at least on the evidence in this record.


United States v. Lugo, 978 F.2d 631, 637 (10th Cir. 1992) (footnote omitted) (citing
Opperman, 428 U.S. at 372, 373).1

        We conclude that Trooper Byrd's search of Best's automobile does not fall within
the permissible scope of an inventory search. Trooper Byrd at the suppression hearing
testified that the Arkansas State Police inventory policy includes inventory of the
contents of the automobile including the opening of any opaque containers but does not
specifically allow looking inside door panels. More importantly, Trooper Byrd's use
of a flashlight to look inside the window and his opening Best's door panel did not
serve the purpose of "protecting the car and its contents." Best would not have a
legitimate claim for protection of property hidden in the door panel and therefore
Trooper Byrd did not have a legitimate interest in seeking such property. Trooper Byrd
could have simply indicated that the power windows did not work properly.
Accordingly, Trooper Byrd's continued search exceeds the permissible scope of an
inventory search and constitutes an unreasonable search under the fourth amendment.




      1
        The government in Lugo presented additional favorable facts not present in this
case including that the officer had already removed a gun from the automobile and had
noticed an ajar door panel. Id. at 633. In this case, the door panel had no obvious
damage and the police had not found any contraband before the search at issue.

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                                  III. STANDING

       At the suppression hearing, the government argued that Best lacked standing to
challenge the validity of the search because the rental agreement did not list Best as an
authorized driver. In United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)
(per curiam), this court concluded that the defendant lacked standing to challenge the
search of his rental vehicle because the automobile was leased in another person's name
and the defendant presented no evidence of permission to use the vehicle. See also
United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994).

        In this case, the district court did not rule on the standing issue. Instead, the
district court agreed to leave the record open on the standing issue. At the suppression
hearing, Trooper Byrd testified that Best had stated that Susan Thomas had rented the
car for him. The district court did not make a factual determination whether Best had
permission to use the rental automobile. If Thomas had granted Best permission to use
the automobile, Best would have a privacy interest giving rise to standing. See
Muhammad, 58 F.3d at 355. We therefore remand this case to the district court for a
factual determination whether Best has standing.

                                 IV. CONCLUSION

      The search of Best's door panel exceeded the scope of a permissible inventory
search. The search, therefore, violated the fourth amendment and the evidence seized
improperly admitted. The district court must make a factual determination whether
Best has standing to challenge the search. Accordingly, we vacate the order denying
the motion to suppress and remand for further proceedings consistent with this opinion.




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A true copy.


      Attest:


               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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