USA v. Dunson

Filing

UNPUBLISHED OPINION ORDER FILED. [06-11374 Affirmed ] Judge: EGJ , Judge: FPB , Judge: CES Mandate pull date is 11/29/2010 for Appellant Clinton Wade Dunson [06-11374]

USA v. Dunson

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

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 06-11374 S u m m a r y Calendar November 5, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C L I N T O N WADE DUNSON, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:06-CR-97-ALL

O N REMAND FROM THE SUPREME COURT O F THE UNITED STATES B e fo r e JOLLY, BENAVIDES, and STEWART, Circuit Judges. P E R CURIAM:* C lin t o n 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 1 2 0 -m o n t h sentence. The case returns to us following a limited remand to the d is t r ic t court for the purpose of conducting an evidentiary hearing and any other p r o c e e d in g s deemed necessary for a determination on the issue of inevitable d is c o v e r y 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 06-11374 Document: 00511286200 Page: 2 Date Filed: 11/05/2010 No. 06-11374 ju d g m e n t and remanded the case for further consideration in light of Arizona v. G a n t, 129 S. Ct. 1710 (2009). Following the evidentiary hearing, the district c o u r t found that the warrantless search of Dunson's vehicle, which was done in c id e n t to his arrest and is now invalid under Gant, was nevertheless valid as a n inventory search done pursuant to standard police procedures. It therefore fo u n d by a preponderance of the evidence that the inevitable discovery exception t o the exclusionary rule applied. W e accept a district court's findings made on a motion to suppress based o n live testimony "unless clearly erroneous or influenced by an incorrect view of t h e law." United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). "Under the c le a r ly erroneous standard, we will uphold a finding so long as it is plausible in lig h t of the record as a whole." United States v. Ekanem, 555 F.3d 172, 175 (5th C ir . 2009). The evidence is to be evaluated in the light most favorable to the p a r ty prevailing in the district court, in this case, the Government. Foy, 28 F.3d a t 474. The district court found as a factual matter that the truck Dunson was d r iv in g at the time of his arrest had the indicia of being stolen and that the s u s p ic io n that Dunson was driving a stolen vehicle was one of the reasons that O ffic e r Stillman called for it to be impounded under the standard Bedford, T e x a s , Police Department policy for impounding vehicles and conducting in v e n t o r y searches. Dunson now argues that, to the extent that the policy p e r m it s officers to impound and conduct an inventory search of a vehicle on the s u s p ic io n of theft without probable cause or a warrant, the policy violates the F o u r t h Amendment. Specifically, he contends that the seizure of a vehicle on t h e suspicion of theft fails to invoke the police's caretaking function and is so b r o a d as to allow evidentiary searches under the guise of inventory searches. He fu r t h e r contends that the facts failed to show that Officer Stillman had a r e a s o n a b le suspicion of theft in this case, particularly as Officer Stillman's m e m o r y was uncertain, making his testimony little more than mere speculation. 2

Case: 06-11374 Document: 00511286200 Page: 3 Date Filed: 11/05/2010 No. 06-11374 D u n s o n cites no authority for his argument that the policy of impounding a vehicle suspected to be stolen does not implicate the community caretaking fu n c tio n of the police. The argument is unpersuasive. As the Government c o n t e n d s , a critical aspect of the community caretaking function is to protect p r o p e r t y , which, in the case of a suspected theft, necessarily involves securing t h e vehicle until the rightful owner is located. Cf. United States v. Andrews, 22 F .3 d 1328, 1334 (5th Cir. 1994); United States v. Staller, 616 F.2d 1284, 1289 (5 t h Cir. 1980). The district court's implicit finding that the BPD policy

p e r m it t in g impoundment of suspected stolen vehicles serves a proper community c a r e t a k in g purpose is plausible in light of the record and is therefore not clearly e r r o n e o u s . See Ekanem, 555 F.3d at 175. S im ila r ly , when viewed in the light most favorable to the Government, O ffic e r Stillman's uncontroverted testimony established a valid suspicion that t h e truck Dunson was driving was likely stolen, given the following: Dunson w a s not the owner of the truck; the truck bore a false registration sticker which h a d been issued to a Cadillac, removed from that vehicle, and placed on the t r u c k ; the truck also bore an obviously forged inspection sticker; and Dunson w a s unable to answer questions about his authority to drive the vehicle in a s a t is fa c t o r y manner. The district court's finding that Officer Stillman had a r e a s o n a b le suspicion that Dunson was driving a stolen truck is plausible in light o f the record and will be upheld. See Ekanem, 555 F.3d at 175. T h u s , Officer Stillman acted pursuant to normal police procedures in im p o u n d in g the truck Dunson was driving based on his suspicion that the truck w a s stolen, which fact would have resulted in an inventory search of the truck; t h e inventory search in turn would have inevitably uncovered the gun and the d r u g s at issue. See Florida v. Wells, 495 U.S. 1, 4-5 (1990); Andrews, 22 F.3d at 1 3 3 4 . As the district court determined, its denial of Dunson's motion to suppress m a y therefore be upheld under the inevitable discovery doctrine, despite the

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Case: 06-11374 Document: 00511286200 Page: 4 Date Filed: 11/05/2010 No. 06-11374 in v a lid it y of the search as incident to Dunson's arrest under Gant. See Jackson, 5 9 6 F.3d at 241. Dunson urges that because Officer Stillman offered two possible reasons fo r impounding the truck, suspicion of theft and the poor condition of the vehicle, b u t was unable to specify on which reason he actually relied, this court must find t h a t both proffered reasons warranted an inventory search before the district c o u r t 's ruling can be affirmed. However, he misconstrues the nature of the d is t r i c t court's findings. Although Officer Stillman testified that he could not r e c a ll exactly which of the two proffered reasons was the basis for his having c a lle d a tow truck to impound the vehicle, the district court found that it could in fe r from his testimony that the suspicion of theft was a reason, if not the sole r e a s o n , that Officer Stillman impounded the vehicle. Because the district court d e fin it iv e ly found that suspicion of theft was one of the reasons Officer Stillman a c t e d , because the finding is plausible in light of the record, and because the o f f i c e r 's suspicion authorized the impoundment and inventory search under n o r m a l police procedures, this court need not address the validity of the a d d it io n a l proffered reason, the poor condition of the vehicle. T h e district court's judgment is AFFIRMED.

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