                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3367
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *     Appeal from the United States
     v.                               *     District Court for the Northern
                                      *     District of Iowa.
Jeremy Ray Hall,                      *
                                      *
           Defendant - Appellant.     *
                                 ___________

                            Submitted: February 14, 2007
                                Filed: August 15, 2007
                                    ___________

Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

      Jeremy Ray Hall was charged in a four-count indictment alleging drug and gun
crimes. Hall moved to suppress evidence seized during an inventory search of his
vehicle. The district court1 denied Hall’s motion, adopting the report and
recommendation of the magistrate judge.2 Thereafter, Hall entered a conditional plea

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
      2
        The Honorable John A. Jarvey, Magistrate Judge, United States District Court
for the Northern District of Iowa, now United States District Judge for the Southern
District of Iowa.
of guilty to manufacturing and attempting to manufacture five grams or more of
methamphetamine after a prior felony drug conviction, and possessing a firearm as a
felon. Having reserved his right to appeal, Hall now does so, arguing that the district
court erred in denying his motion to suppress evidence. We affirm.

I.    Background

       On August 18, 2003, at approximately 1:30 a.m., the Cedar Rapids Police
Department (“CRPD”) received a call about a possible sexual assault victim at St.
Luke’s Hospital (“the Hospital”). In response, CRPD Officer Thai Nguyen went to
the hospital and interviewed the alleged victim. The alleged victim told Officer
Nguyen that Hall and another man sexually assaulted her, that they were involved in
the manufacture of methamphetamine, and that they had outstanding warrants. She
also told officers that Hall had sold her methamphetamine and that there may be items
associated with the manufacture of methamphetamine in Hall’s vehicle.

       Around 2:30 a.m., shortly after Officer Nguyen left the Hospital, dispatch
notified him that the suspects in the alleged sexual assault had arrived at the Hospital.
Officer Nguyen returned to the Hospital. CRPD Officers Jeffrey Herbert and Cody
Estling were already there. As Officer Estling was approaching the emergency room
doors, Hospital security identified the two suspects and another man exiting the
emergency room doors as the possible suspects. Officer Estling stopped the three men
and asked for identification. Two of the men verbally identified themselves, and one
produced a non driver’s identification card. Hall initially provided Officer Estling
with a false name. Officer Nguyen then approached the group, and told Officer
Estling that Hall may be providing a false name. When asked by Officer Estling
whether the information he had given was correct, Hall stated, “maybe you should try
running ‘Jeremy Hall.’” After running Hall’s real name, Officer Estling discovered
that there was an outstanding warrant for Hall for a probation violation. Hall was



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placed under arrest at the exit of the emergency room around 2:45 a.m., and
transported to the police station.

       At some point before Hall was transported to the police station, officers learned
that Hall’s vehicle was parked on the first floor of the Hospital’s private parking lot.
There was a sign in the parking ramp indicating that it was a private parking ramp for
the use of the Hospital’s patients and guests only. When officers asked Hall for
permission to search his car, Hall refused. Hall did not ask either of the two men who
had accompanied him to the hospital to move his car from the ramp, nor did either of
the men offer to take possession of the vehicle for him. One of the individuals had
produced a non driver identification card, possibly indicating that he did not have a
valid driver’s license.

       Officer Herbert found Hall’s car in the Hospital parking lot, and he stood watch
over it. According to Officer Estling’s testimony at the suppression hearing, the
vehicle was being secured because of reports by the alleged victim that the vehicle
may contain items associated with the manufacture of methamphetamine. During this
time, Officer Herbert was waiting for further directions from investigators, detectives,
or commanders. There was no one in or around Hall’s car while the officers were
securing it. Eventually, Officer Rob Kasper relieved Officer Herbert, and Officer
Herbert left the scene.

       Officer Kasper was standing near Hall’s vehicle when members of the
Hospital’s security team approached him and asked him why he was there. Officer
Kasper told the security officers that the vehicle was possibly connected to a
methamphetamine lab, and that its owner was not present and appeared to have left
the vehicle in the ramp. Officer Kasper testified that the Hospital had previously been
notified that Hall had been arrested.




                                          -3-
       The security officers then asked Officer Kasper to tow Hall’s car from the
Hospital’s private parking lot. Officer Kasper testified that although he knew Hall
was at the police station and there was a warrant out for his arrest, he had no contact
with Hall, did not know if the warrant had been confirmed, and at the time the
Hospital asked to have the vehicle towed, he could not conclude that Hall was under
arrest simply because Hall was at the police station. Officer Kasper also testified that
Officer Herbert had not informed him that Hall was under arrest. Accordingly,
Officer Kasper treated the tow as a private property tow request.

       The CRPD has a policy regarding the towing and/or impounding of vehicles
(“the Policy”). The Policy includes procedures related to private property towing. In
relevant part, the Policy provides:

             f.     Vehicles towed from private property upon the property
                    owner’s request requires the following:

                    1.     The lot must be posted with proper signs at each
                           entrance or posted so signs can be seen from
                           anywhere in the lot stating “Private Property-
                           Unauthorized Vehicles Will Be Towed.” (Signs
                           must have been posted for at least 24 hours before
                           we will enforce)
                    2.     A Vehicle Removal or Impounding Report (CRPD
                           328) will be filled out with the property owner or
                           person in charge filling out and signing Part 2.
                    3.     A parking ticket will be issued.
                    4.     A wrecker from the towing company which has the
                           city contract will be used to tow this vehicle.

      The Policy also states that “[a]ny officer causing a vehicle to be towed,
removed, or impounded will inventory the contents and record the inventory in the
appropriate space on the VEHICLE REMOVAL OR IMPOUNDING REPORT.”
Further, the Policy provides that:


                                          -4-
      1.     A visual inventory will be taken when the vehicle is locked and no
             keys are available. This will include such items as tape decks,
             speakers, tools, and clothing.
      2.     An inventory of all accessible areas will be taken when the vehicle
             is unlocked and no keys are available. This will include the area
             under the seats and the glove compartment.
      3.     A complete inventory, to include the trunk, will be taken when the
             keys are available.
              ...

            When an officer makes an inventory in accordance with
      procedures outlined in 1. and 2. above, and then finds it necessary to
      obtain a search warrant, any additional items found will be recorded on
      a separate sheet and attached to the record room copy of the VEHICLE
      REMOVAL OR IMPOUNDING REPORT containing the initial vehicle
      inventory.

       Pursuant to the Policy, Officer Kasper called for a tow truck to come pick up
Hall’s vehicle. The vehicle was to be towed, but not impounded. Officer Kasper then
conducted an inventory search of the vehicle. Officer Kasper testified that, as is his
routine, he started on the outside of the vehicle, noting any exterior damage. He
moved to the interior of the vehicle, starting with the driver’s side, then moving to the
front passenger compartments, and then to the rear passenger compartments. Officer
Kasper testified that he did not find anything illegal in the interior of the car. Because
the keys were available, Officer Kasper also inventoried the contents of the trunk. In
the trunk, Officer Kasper found parts of firearms and several blister packs of
pseudoephedrine. Once he found the methamphetamine-related items, Officer Kasper
notified CRPD and requested backup from the Detective Bureau.

       Around 6:00 a.m., detectives George Aboud and Anthony Robinson, who had
earlier interviewed both the alleged victim of sexual assault and Hall, arrived at Hall’s
vehicle. Detective Robinson testified that he helped complete the search of the
vehicle. Inside the trunk, the officers found items associated with the manufacture of

                                           -5-
methamphetamine,3 a complete shotgun, and parts of two other shotguns. The officers
found the gun and gun parts inside a zipped-up duffel bag, and found blister packs of
pseudoephedrine inside partially-translucent, tied shopping bags. None of the items
were found in locked containers. Officers Kasper and Robinson both testified that it
was their standard routine to open closed, unlocked containers during an inventory
search.

        Officer Kasper documented his findings from the inventory search on a CRPD
vehicle impounding report. He testified that he also issued a parking ticket, although
he acknowledged that there is no record or evidence of the ticket. Officer Kasper also
testified that he was unaware that Hall had denied officers’ previous requests to search
his vehicle.

      Based on the evidence from the search of his vehicle, Hall was charged in a
four-count indictment. Count One alleged that Hall manufactured and attempted to
manufacture five grams or more of methamphetamine after having previously been
convicted of a felony drug offense. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846. Count
Two alleged that Hall possessed 67.7 grams of pseudoephedrine with the intent to
manufacture methamphetamine. 21 U.S.C. § 841(c)(1). Count Three alleged that Hall
was a felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1). Finally, Count Four
alleged that Hall possessed firearms as an unlawful drug user. 18 U.S.C. §§ 922(g)(3).

      Hall moved to suppress the evidence found in his vehicle, arguing that the
warrantless search violated the Fourth Amendment. Specifically, Hall argued that the


      3
       The officers found plastic bottles containing methamphetamine and
pseudophedrine residue, coffee filters containing sludge, a gallon pitcher containing
sludge, empty glass jars, heavy rubber gloves, a hydrochloric acid generator made
with a plastic soda bottle, empty lithium battery containers, camping fuel, an empty
paint thinner container, and numerous empty blister packages and boxes for 30
milligram pseudoephedrine tablets.

                                          -6-
search was not a valid inventory search because the Policy allowed the searching
officers to exercise too much discretion. Following an evidentiary hearing, the
magistrate judge recommended the denial of Hall’s motion to suppress evidence. The
district court adopted the magistrate judge’s report and recommendation over Hall’s
objections and denied Hall’s motion to suppress. The court found that the officers did
not violate the Fourth Amendment because they followed standard police procedure
during their inventory search of Hall’s vehicle.

       Hall thereafter entered into a conditional plea agreement, pleading guilty to
Count One and Count Three of the indictment but reserving his right to appeal the
district court’s denial of his motion to suppress evidence found in the inventory search
of his vehicle. Hall now brings his appeal, arguing that the search was
unconstitutional because the Policy left excessive discretion in the hands of the
searching officers. He also argues that the officers involved in the search of his
vehicle did not comply with the Policy in several respects and that the totality of the
circumstances show that the sole motive for the search of his vehicle was
investigatory. We address each of Hall’s arguments in turn.

II.   Analysis

       “When considering the denial of a motion to suppress evidence, we review the
district court’s factual findings for clear error and its legal conclusions de novo.”
United States v. Le, 474 F.3d 511, 514 (8th Cir. 2007) (quotation omitted). “Police
may conduct a warrantless search of a lawfully-impounded vehicle even in the
absence of probable cause.” United States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir.
2005). The practice of securing and inventorying the contents of vehicles in police
custody is a “response to three distinct needs: the protection of the owner’s property
while it remains in police custody, the protection [of] the police against claims or
disputes over lost or stolen property, and the protection of the police from potential



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danger.” South Dakota v. Opperman, 428 U.S. 364, 369 (1976) (internal citations
omitted).

       “The central question in evaluating the propriety of an inventory search is
whether, in the totality of the circumstances, the search was reasonable.” Kennedy,
427 F.3d at 1143. Inventory searches that are “conducted according to standardized
police procedures” are reasonable. Id. Standardized police procedures are necessary
to “ensure that the search is not merely ‘a ruse for general rummaging in order to
discover incriminating evidence.’” Id. (quoting Florida v. Wells, 495 U.S. 1, 4
(1990)).

       The requirement that officers follow standard procedures in conducting
inventory searches does not foreclose the use of some discretion by officers “so long
as that discretion is exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity.” Colorado v. Bertine,
479 U.S. 367, 375 (1987). “So long as the officer’s residual judgment is exercised
based on legitimate concerns related to the purposes of an impoundment, his decision
to impound a particular vehicle does not run afoul of the Constitution.” United States
v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004). Further, police “may keep their eyes
open for potentially incriminating items that they might discover in the course of an
inventory search, as long as their sole purpose is not to investigate a crime.” United
States v. Marshall, 986 F.2d 1171, 1176 (8th Cir. 1993). Even if the officer “suspects
he might uncover evidence in a vehicle,” the police can still “tow[] a vehicle and
inventory[] the contents, as long as the impoundment is otherwise valid.” Petty, 367
F.3d at 1013.




                                         -8-
      A.     Discretion

       Hall first contends that the Policy allows officers to perform inventory searches
in an unconstitutional manner because it leaves “excessive discretion to the searching
officer.” A policy that allows this much discretion, Hall argues, does not satisfy the
constitutional requirement of standardized police procedures. Hall specifically
challenges, inter alia, the Policy language that allows the inventorying officer to
decide whether to treat the case as an in-custody arrest4 or a private-property tow case.

        We find “no indication that the [P]olicy permits officers to perform inventory
searches in an unconstitutional manner.” United States v. Beal, 430 F.3d 950, 954
(8th Cir. 2005) (discussing the CRPD policy governing inventory searches). It is true
that the Policy allowed Officer Kasper to exercise some discretion. Officer Kasper
testified at the suppression hearing that he “probably” could have treated the towing
of Hall’s vehicle as an in-custody arrest, rather than as a private-property tow. Officer
Kasper stated that he guessed that decision was within his discretion, “but at the time
of [the search he] did not know that [Hall] was currently under arrest.” With one
exception, the Policy would have required an inventory search of Hall’s vehicle even
if Officer Kasper had treated the case as an in-custody arrest.5 Therefore, we doubt

      4
        The Policy states that: “A vehicle shall be towed in connection with an in
custody arrest. The only exceptions are that the vehicle may be released to another
sober, licensed operator in the vehicle at the time of the arrest if the driver/owner so
requests, or with commander’s approval. . . .”
      5
        Hall argues that officers should have asked one of the individuals at the
Hospital with Hall to remove his vehicle from the Hospital’s parking lot. Even
assuming that Officer Kasper should have treated this case as an in-custody arrest tow,
this argument has no merit. First, there were no people in or around Hall’s vehicle
when it was being secured. Second, it is unclear from the record whether either of the
two individuals fit the description of a “sober, licensed operator.” One of the
individuals was taken to the police station at the same time Hall was. Also, one of the
individuals gave the officers a non driver’s identification card, which suggests that he
did not have a driver’s license.

                                          -9-
that the way the case was labeled had any impact. Regardless, “a decision to impound
or inventory” does not need to be “made in a ‘totally mechanical’ fashion.” Petty, 367
F.3d at 1012 (quoting Wells, 495 U.S. at 4). Officers are allowed “some latitude and
exercise of judgment,” as long as “those decisions are based on concerns related to the
purposes of an [inventory search].” Id. (quotations omitted). That the Policy allows
some discretion as to whether to treat a case as an in-custody arrest tow or a private-
property tow does not make the inventory search unconstitutional. Likewise,
regarding Hall’s other arguments, the minimal discretion afforded searching officers
is not constitutionally significant.

      B.     Compliance with the Policy/Bad Faith

       Hall next argues Officer Kasper violated the Fourth Amendment by conducting
the inventory search in bad faith, as evidenced by his failure to comply with the Policy
in several respects. See, e.g., United States v. Rowland, 341 F.3d 774, 780 (8th Cir.
2003) (holding that the searching officers “failed to follow [the department’s] own
procedures” by failing to make a record of all property within the inventoried vehicle).
The district court found that the searching officers complied with the Policy in all
respects. Hall first urges us to find that the district court’s findings of fact regarding
Officer Kasper’s compliance with the Policy are clearly erroneous. Hall argues that
the government was not able to prove that Officer Kasper issued Hall a ticket, as
required by the Policy, and that Officer Kasper did not follow Policy instructions
regarding closed containers in the vehicle.

       Hall’s argument fails for two reasons. First, the district court found Officer
Kasper credible, and a district court’s credibility determinations are “virtually
unassailable on appeal.” United States v. Watson, 479 F.3d 607, 611 (8th Cir. 2007)
(internal quotation omitted). Second, even if we were to determine that the district
court’s findings of fact are clearly erroneous, the failure to abide by standardized




                                          -10-
procedures does not necessarily require the suppression of evidence discovered in
Hall’s vehicle. “There must be something else; something to suggest the police raised
‘the inventory-search banner in an after-the-fact attempt to justify’ a simple
investigatory search for incriminating evidence.” Rowland, 341 F.3d at 780 (quoting
Marshall, 986 F.2d at 1175). That “something else” is not present here. The Hospital
asked Officer Kasper to remove Hall’s vehicle. Officer Kasper thus had a legitimate
reason to treat the case as a private-property tow, and acted accordingly. Pursuant to
the Policy, Officer Kasper called a tow company and conducted an inventory search.
In doing so, he completed a CRPD vehicle impounding report, cataloguing both the
lawful and incriminating contents of the vehicle. Cf. Id. 341 F.3d at 782 (finding an
inventory search invalid when “law enforcement sifted through the vehicle’s contents
searching only for and recording only incriminating evidence”). Officers Kasper
testified that he knew Hall’s vehicle was linked to the manufacture of
methamphetamine and that the reason officers were securing the vehicle was because
of this suspicion. As we stated above, however, provided that the search is conducted
according to standard procedures, officers “may keep their eyes open for potentially
incriminating items that they might discover in the course of an inventory search, as
long as their sole purpose is not to investigate crime.” Marshall, 986 F.2d at 1176.
The search here was conducted pursuant to the Policy, and, looking at the totality of
the circumstances, we find no evidence that the searching officers acted in bad faith.



III.   Conclusion

       For the foregoing reasons, we affirm the judgment of the district court.
                       ______________________________




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