NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0257n.06 No. 08-3551 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. KENN ETH L . HUGHES, Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: GU Y, CLAY and McK EAGU E, Circuit Judges. CLAY, Circuit Judge. Def endant Kenne th Hug hes appea ls his conviction and sentenc e for being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g )(1)

. Def endant argues that the district court incorre ctly calc ulated his sentenc e when it ref used t o ap p l y an offe nse level reduc tion for accep t an ce of responsibili ty due to Def endant’ s pre- sentenc ing conduct. Def endant also argues that the district cour t erre d when it denied his motion to suppress the fire arm. For the re asons set for

th be low, we REVERSE in pa rt, and AF F IRM in pa

rt, the dec ision of the district cour

t. BACK GR OUND I. P roce dural Hi story On November 20, 2007, Def endant Ke nneth Hug hes wa s indicted on one count of being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g )(1)

. On J anuar y 20, 2008, Hug hesNo. 08-3551

filed a motion to suppress the firea rm. After an evidentiar

y hear ing, the district court orally denied the motion to suppress on Febr uary 5, 2008. The nex t d ay , Hug hes enter ed a conditional g uilty plea, pursuant to a plea ag ree ment. Hug hes rese rved the rig ht to challeng e the imposit ion of a sentenc e in excess of h i s p ro p er ly calc ulate d a d

v isor y sentenc ing rang e under the Sentencing Guidelines (“U .S.S.G.” or “Guidelines” ); he also re serve d the rig ht to appeal the district c ourt’s denia l of his suppression motion. I n Hug hes’ plea ag ree ment, the parties ag ree d that Hug hes’ base offe nse level would be set at 24, under U.S.S.G. § 2K2.1(a )(2)

. The parties also ag ree d that the g overnme nt would rec ommend that Hug hes rec eive a three level reduc tion for acc eptanc e of responsibility , “so long as Def endant’ s conduct c ontinues to refle ct his acc eptanc e of r esponsibility .” On Fe bruar

y 21, 2008, Hug hes was arr ested for drug possession and traff icking , and his bond was violated. Hug hes’ Presentenc e I nvestig ation Report (“PSR”) ref lected the base offe nse level of 24, as stipulated in the plea ag ree ment. The PSR did not ref lect the three level adjustment for acc eptanc e of responsibility

. Hug hes had four criminal history points, which cor r e s p o n d ed to a Criminal History Categ ory I I I

. There fore , the PSR rec ommended a Guidelines rang e of imprisonment of 6 3 t o 78 months. On April 22, 2008, the district court adopted the Guidelines rang e rec ommended in the PSR and sentenc ed Hug hes to 70 months of incar cer ation. Hug hes now appea ls both his sentenc e and the district court’s de nial of his motion to s uppress.

2No. 08-3551

II. F acts On October 16, 2007, Cleveland Police Offic ers David Skrletts and Rob er t J anusz ewski (tog ether , “the office rs”) observe d a g ree n Acur a trave ling on 14 3rd Street in Cleveland, Ohio. When the Acur a acc eler ated from a stop at a traff ic signa l, the office rs noticed that t h e ca r wa s emittin g a t h i ck plume of white smoke. At that time, Offic ers Skrletts activate d the patrol car ’s signa l and siren a

nd, at 9:59 a.m., ca lled the ca r’s lice nse plate numbe r into police dispatch. 1 The drive r of the Acur a, later identified as Def endant Kenne th H ug hes, pulled the car over and the office rs initiated the traff ic stop. Both office rs approa ched the vehicle, and Offic er Skrletts asked Hu gh es for his driver’ s license and auto reg istration. Hug hes responde d by telling Offic er Skrletts that his name was “Shadid Abdul Walid,” but that he did not have identification or the car ’s reg istration. 2 At that time, the office rs reque sted that Hug hes exit the vehicle. Hug hes complied, Offic er Skrletts perf

ormed a safe ty frisk, and then both office rs escor ted Hug hes to the back seat of the patrol

car , wher e he was place d. Once in the back of the patrol car , Hug hes provided the office rs with his

rea l name and social secur ity number. Offic er J anuszewski called the information into dispatc h at 10:13 a.m., and one minute later the dispatcher repor ted that Hug hes was driving under a suspended license.

Cleveland police dispatch rec ording s indicate the call was made “on a roll,” or while the

1 office rs wer e still following the Ac ura in their patrol car

. Shadid Walid i s Hug hes’ br other, who w as also the leg al owner of the ve hicle. 2 3No. 08-3551

Acc ording to the office rs’ testimony , Hug hes was then “tec hnically ” arr ested for driving under suspension (“D US”), though neither office r informed him at that time. Offic er Skrletts exit ed the cruiser and beg an an invento ry s ea rc h of the Acur a in prepa ration for a tow. During this inventory , Offic er Skrletts discovere d a firear m under the front seat of t he ca r. Shortly there afte r, the office rs informed Hug hes that he was under arr est for a conce aled wea pons violation. They then

remove d Hug hes from the back seat of the cruiser , handcuf fed him, and place d him back in the patrol

car . L ater that day , Offic er Skrletts completed a field repor t and a “vehic le/tow supplemen t ” relating to the arr est. I n that repor t, Office r Skrletts noted the time of ar rest as 10:05 a .m. O ffice r Skrletts also indicated “ar rest” as the “re ason for tow.” I n the same sec tion of the form, Offic er Skrletts identified violations of “43507a/437.20" as the a rre st violations. 3 Whil e Hughe s larg ely ag ree s with the rendition of events g i v en by the officers, he notably differ s in his claim t hat Officer Skrletts began to sear ch the Acur a “almost instantly ” after he was place d in the patrol car . Acc ording to Hug hes, he did not provide the office rs his rea l name until they had alre ady discovere d the we ap o n, and he only did so to preve nt his brother from being implicated in the g un char g e. (R. 26: Hug hes at 42.) Under this fac tual scena rio, it would have been impossibl e for the officers t o have rec eived information about the DUS prior to conducting the

sear ch. 4

Offic er Skrletts testified that a “[v] iolation 435.07A is driving under suspension, and 3 437.20 would be the e x cessive smoke .” (R. 26: Skrletts at 15.) The district court found the office rs’ testimony reg arding the order of events more cre dible 4 than that of Hug hes. T h e timing of the radio calls to dispatch also larg ely supports the office rs’ 4No. 08-3551 ANALYSIS I. Sentencing: Reduction for Acce ptance of Responsi bili ty A. Stand ard of Review We revie w the district court’s leg al conclusions reg arding the appropr iate application of the Sentencing Guidelines de novo . United States. v. Montanez , 442 F.3d 485, 488 (6th Cir. 2006). We may reje ct the district court’s deter mination on the “pure ly fac tual components of the acc eptanc e of responsibility deter

mination” only if it is clea rly err oneous. United States v. Bolden , 479 F.3d 455, 464 (6th Cir. 2007). B. Appli cation Under the Guidelines, a defe ndant is entitled to a two level reduc tion to his base offe nse level if he “cle arly demonstrates acc eptanc e of responsibility for his offe nse.” U.S.S.G. § 3E1.1(a)

. The defe ndant may

qualify for a n additional one level re duction if, among other c riteria, the defe ndant “timely notifie[s] authorities of his intention to enter a plea of g uilty , th er eb y p er mitti ng the g overnme nt to avoid p repa ring for trial and permitting the g overnme nt and the court to allocate

resour ces eff

iciently .” U.S.S.G. § 3E1.1(b). The additional reduc tion outlined under subsection (b) may only be g rante d upon motion of the g overnme nt. Id. I n the instant case , Hug hes enter ed a co n d i t i o n al g uilty plea the day afte r his motion to

s u p p ress the firearm was denied. As a prerequisite for timely pleading g uilty , Hug hes ex ecute d a

v er s i on of events. “A factua l finding will only be clearly err oneous when, althoug h ther e m ay b e evidenc e to support i t, the reviewing court on the entire evidenc e is left wit h the definite and firm conviction that a mistake has been committed.” United States v. Navarro-Camacho , 186 F.3d 701, 705 (6th Cir.1999). We are not left with a convic tion of that streng th. 5No. 08-3551

plea ag ree ment with the g overnme nt wher ein the g overnme nt “ag ree [d] to rec ommend a three level redu ct i o n fo r the acc eptanc e of responsibility under 3E1.1(a) , so long as the defe ndant’s conduct continue[d] to refle ct his acc eptanc e of r esponsibility .” Approxim ately two wee ks afte r Hug hes enter ed his plea, he was obs erve d by law enfor ceme nt officia ls dealing drug s on the streets of Cleveland. Offic ers arr ested him on Fe bruar y 21, 2008, and he was indi cted on d ru g possession and trafficking char g es on Marc h 17, 2008. At Hug hes’ sentenc ing for the instant offe nse, the district court used this post-plea, pre- sentenc ing drug conduct to justify not applying a reduc tion to Hug hes’ offe nse level for acc eptanc e of responsibility

. Hug hes now argues that “[t] he district court err ed by using [hi s] unrelated post-plea drug

arr est to deny acc eptanc e of responsibility for the firea rms offe nse.” The g overnme nt acknow ledg es this err or and “conc edes that this Court should rema nd to the district court for re- sentenc ing so that t h e d i s t rict court may have the opportunity to corr ect the err or and to make a final deter m i n at i o n about what is an appropriate sentence in this ca s e. ” W e agr ee that the di strict court erre d when it failed to a pply the t hree level ac cepta nce of responsibility

reduc tion to Hughe s’ offe nse leve l, and conseque ntly

improperly

calc ulated his advisory

Guidelines ra

ng e. We have consistently held t hat “c onsideration of unr elated post-ple a charg es as a factor in deter mining whether the defe ndant ha[s] acc epted responsibility fo r t h e s entenc ing offe nses was improper.” United States v. Ack erman , 246 F. App’x. 996, 999 (6th Cir. 2007) (citing United States

v. Banks , 252 F.3d 801, 807 (6th Cir. 2001) ); see also Bank s , 252 F.3d 801 (holding that post-plea conduct of assault and destruction of proper ty could not be considere d under U.S.S.G. § 3E1.1 for sentenc ing on drug traff

icking and firea

rm possession char g es); United States. v. Morrison , 983 F.2d

6No. 08-3551

730 (6th Cir. 1993) (finding post-plea conduct of theft and drug use unrelated to the firea rms offe nse for whic h defe ndant was be ing se ntence d). Hug hes’ post-plea conduct of drug dealing is “wholly distinct” from his illega l possession of a firea rm. See Morrison , 983 F.2d at 733. Hug hes was arr ested for making a hand-to-ha nd sale

o f cr ack coca ine to a confide ntial informant. At the time of his arr est, he was fo u n d t o b e i n possession of the “buy ” m o n ey , an additional $80 and a piece of paper on which sever al phone numbers wer e written. There is no alleg ation that Hug hes possessed or utiliz ed a firea rm as part of this activity

. Consequently , the district court err ed when it declined to apply the three level reduc tion for Hug hes’ acc eptanc e of responsibility , as contemplated in his plea ag ree ment. Proper application of the reduc tion would have yielded an adjusted offe nse level of 21 and an advisory Guidelines rang e of 46 to 57 months of imprisonment. C. Conclusion Be cause the district court err ed in calc ulating Hug hes’ advisory sentenc ing ra n ge, we VACATE the district court’s sentenc e, and REMAND the case for rese ntencing in acc ordanc e with this opini on. II. Conviction: Motion to Supp ress t he F irear m A. Stand ard of Review We revie w the fac tual basis of a district court’s denial of a motion to suppress evidenc e for clea r error, and its lega l conclusions de novo

. United St ates v. Davis , 430 F.3d 345, 351 (6th Cir.

7No. 08-3551

2005). “In revie wing the di s t ri ct court’s finding s of fac t, we consider evidenc e in the light most favor able to the g overnme nt.” United States v. Hill , 195 F.3d 258, 264 ( 6th Cir. 1999). B. Analysis Hu gh es argues that the district court err ed in denying his motion to suppress the fire ar m beca use, while “[t] he firea

rm was rec overe d during what was purportedly a sear ch i n ci d en t to an

arr est for a traff

ic m i s d emeanor . . . Mr. Hug hes was never arr ested for the traff ic violation that supposedly prompted the sear ch,” rende ring the sear ch of Hug hes’ vehicle “unre asonable under the Four th Amendment.” Alternativ el y , Hu gh es argues that the police office rs at the scene diverg ed from depar

tmental policy reg arding invent o ry i n g a car in prepa ration for a tow, so “[t] he sear ch cannot be justified as a non-a rre st inventory

sear ch.” We f ind tha t it is not nece ssary for this Court to rea ch the issue of whether a vehicle sear ch incident to arr est wo uld have been valid under the Four th Amendment, as the sear ch of Hug hes’ vehicle was rea sonable pursuant to the inventory exception to the war rant require ment of the Four th Amendment. 1. Whether Hughes was P laced Under Ar restP rior t o the Searc h “The fede ral standard under the Four th Amendment for an arr est or seizure involves deter mining whether ‘in view of all of the circ umstances surround ing the incident, a rea sonable person would have believed that he was not fre e to leave .’” Skousen v. Brighton High School , 305 F.3d 520, 529 (6th Cir. 2002) (quoting United States v. Mende nhall , 446 U.S. 544, 554 (1980)) ; see also Kaupp v. Texas , 538 U.S. 626, 629 (2003) (citing Florida v. Bostick , 501 U.S. 429, 437 (1991)) (ar rest occur s when “taking into acc ount all of the circ umstances surrounding the encounte r, t h e

8No. 08-3551

police conduct would have communicated to a rea sonable person that he was not at liberty to ignor e the police pr esenc e and g o about his business.”) Hug hes ar g ues that “[t] he re cord r efle cts that the off icer s only arr ested Mr. Hug hes for

the firea rm they found during the sear ch, but never arr ested Mr. Hug hes for the traff ic offe n s e. ” I n support of the claim that he was not arr ested for the DUS, Hug hes highlig hts the fac t that the office rs did not inform hi m, at t he ti me t hat di spatch reported the DUS, that he wa s u n d er ar re st. Hug hes argues that Stansbury v. Calif ornia , 511 U.S. 318 , 325 (1994), stands for the proposition that a

nece ssary component of eff ectuating an arr est is that an office r inform the suspect that he is officia lly under a rre st. Stansbury does not support Hug hes’ argument. I nstead, Stansbury addr es s es a police office r’s subjective perspe ctive reg arding whether a person is in custody , as it applies in the context of the Fifth Amendment and the duty to provide a Miranda war ning. Clearly , these are not the issues prese nt in this case . I n the context of the Four th A mendment, it is clea

r that “[i] t doe s not ta

ke formal words of

arr est or booking at a police station to complete an arr est. I t simply takes the deprivation of liberty under the law.” Manning v. Jarnigan , 501 F.2d 408, 410 (6th Cir. 1974). Fur thermore , “[i] t is quite plain that the Four

th A mendment g overns ‘seizures’ of the person which do not eventuate in a trip to the station house and prose cution for c rime . . . .” Terry v. Ohio , 392 U.S. 1, 16 (1968). Hug hes does not argue that the office rs lacke d probable cause to arr est him afte r they beca me

awa re of the DUS. See Atwater v

. City of Lago Vista , 532 U.S. 318, 354 (2001) (“I f an office r has probable cause to believe that an individual has committed even a very minor criminal offe nse in his

9No. 08-3551

p r e s e n c e , he may , without violating the Four th Amendment, arr est the offe nder.” ). I nstead, he argu e s that the office rs made the discretionar y choice to arr est him only on the firea rm offe nse, and to issue a citation for

the ar restable DUS offe nse. 5 The fac ts, when viewed in the light most favor able to the g overnme nt, show that while Hug hes was not under arre st when the office rs initially place d him in the rear of the patrol car , he

was place d under arr est when the office rs rec eived the information from dispatch that his license was suspended. The weig ht of the evidenc e supports this conclusion. First, when the office rs discovere d that Hug hes was DUS, they did not proce ed by issuing Hug hes a citation and rele asing him. Nor did they inform him that they wer e only citing him f or the DUS; instea d they g ave him no information at all. Secondly , afte r lear ning of the DUS, the office rs beg an the proce dures for an inventory sear ch and they called for a tow truck. T h i rdl y , Offic er Skrletts completed the requisite field repor t and t o w supplement, which was behavior consistent with an inventory sear ch. Finally , it is clea r t h at Hug hes di d not have liberty to leave or i g nore the office rs af ter they lear

ned of his DUS. Eac h of these fa cts is consistent with the testimony of the office rs and the field repor t, a s further

discussed below. There fore , we f

ind that the office rs ar

rested H ug hes upon receiving probable cause that he

was driving under suspension. The rema ining question is whether Offic er Skrletts ’s inventory

sear ch, which unc overe d the illeg al fire arm, wa s perf ormed pursua

nt to a standardized policy

.

We note that a person may be arres ted, but not later char g ed, for a crime. There fore , 5 whateve r results occur subsequent to an arr est are not dispositi ve of the question of whether an arr est occur red. 10No. 08-3551 2. Whether the Inventory Search was Violative of the F ourth Am endm ent I t is well-e stablish ed t h at a wa rra ntless sear ch of a vehicle, if it is done pursuant to an inventory and not for investiga tive purposes, may be re asonable under the Four th Amendment. Colorado v. Bertine , 479 U.S. 367, 371 (1987); see also South Dakota v. Opperman , 428 U.S. 364 (1976); United States v. Tack ett , 486 F.3d 230 ( 6th Cir. 2007). When suc h inventory sear ches a

re conducte d pursuant to standardized proce dures, those “re asonable police reg ulations relating to inventory proce dures administered in g ood faith satisfy the Four th Amendment, even though courts might as a matter of hindsight b e able to devise equally rea sonable rules requiring a differ ent proce dure.” Bertine, 479 U.S. at 374. A police depar

tment’s “policy or prac tice g overning inventory sear ches should be desig ned to produce an inventory

. The individual police office r must not be allowed so much latitu d e t h at inventory sear ches are turned into a purposef ul and g ener al means of d is c o v e r in g e v id e n ce of crime.” Florida v. W

ells , 495 U.S. 1, 4 (1 9 9 0 ) (i n t erna l quotations omitted). Yet, while “off icer s do not enjoy their acc ustomed discretion” in conducting an inventory , they “may exercise some judgme nt based on conce rns related to the purpose s of an inventory sear ch .

. . .” Tackett , 486 F.3d at 232. Those purposes are , among other thing s, “to protec t an owner ’s prope rty while it is in the custody of the police, to insure ag ainst claims of lost, stolen, or vandalized proper ty , and to g uard the police from dang er.” Bertine , 479 U.S. at 372. Hug hes argues that the office rs failed to conduct an inventory sear ch in acc ordanc e with the standard proce dures established by the Cleveland police depar tment, beca

use they did not 1) attempt to contact the le g al owner of the ve hicle, or 2) remove valuables f rom the vehic le bef

ore the tow.

11No. 08-3551

The Clevela

nd Police Gene ral Or der on Vehicle Tow or Rele ase ( “Tow Policy ”) se ts forth the g uidelines for office rs order ing th e t o w o f a v ehicle. The Tow Policy is structure d in the following manner : the first section (including subsections “A” thr o u g h “G” ) outlines the g ener al tow policies. The immediately following section descr ibes the towing of fice r’s proc essing (for

ms that

m u s t be completed) and communication control (information that must be radioe d to dispatch) duties. Next are sec t i o ns that set forth additional proce dures that must be completed for specific ty pes of tows— for “fatal and serious non-fatal acc idents,” “eme rg ency tows,” and “towing vehicles for safe keeping .” The Tow Policy then outlines the conditions under which a tow can be canc elled and the vehicle rele ased at the scene . I n t h e final sections, the Tow Policy sets forth specia l proce dures f

or aba ndoned and “

junk” vehicle s. I t is clea r from the “Ve hicle/Tow Supplement” to the standard Cleveland field repor t that an office r may order a tow for an arr est. (App. 12 (Unde r “Rea son for Tow” form lists “ar rest” as one of twelve bases for order ing the tow).) When an office r deter mines that a car will be towed for

arr est, the first section of the Tow Policy appli es . Under this section, an office r is require d to: 1) complete a “Ve hicle/Tow S upplement For m”; 2) obtain a vehicle chec k from the district dispatch

or mobile data computer; 3) complete the “vehic l e d amag e” section of the supplement; and 4) complete a

n inventory

of items in the vehicle. Turning to Hug hes’ first argument, the Tow Policy is clea r that office rs are only require d to attempt to contac t the leg al owner of a vehicle when the vehicle is being towed for safe keeping

. The Tow Policy define s a safe keeping tow as one wher e the vehicle is “ leg ally parke d and in dang er of damag e by obstructing s af et y forces or public works.” Hug hes appar ently misunderstood the

12No. 08-3551

testimony of Offic er Skrletts, who reiter ated throug hout both direc t and cross-e x amination that the tow of Hug hes’ car was incident to the arr est, and was not for safe keeping

. (R. 26: Skrletts at 26-27 (“Q

. Would this be what I ref er to as a safe keeping tow, meaning he couldn’t leave the car there ? A. This is a tow for an arr est.”); id. at 36-37 (“Q

. Was this vehicle being towed for safe keeping ? A. No. This vehicle wa s being towed bec ause the person in contr ol of the vehic le was unde r ar rest”) .) I n addition to Offic er Skrletts’ testimony that Hug hes’ car was not towed for safe k ee p i n g , there is no indication that Hug hes’ vehicle met the other criter ia for a safe keeping tow. There fore , the office rs wer e not require d to attempt to contac t the leg al owner of the vehicle in order to proper ly eff ectuate the tow under

the Tow Policy

. Hug hes also argues that Offic er Skrletts failed to follow the Tow Policy beca use he did not

remove Hug hes’ valuables from the car . Section I , subsection G of the Tow Policy states, in rele vant part, that “[i] f possible, prior to towing, remove from the vehicle proper ty such as jewelr

y , came ras, radios, televisions, g olf clubs, ce l lular phones, computers, rada r detec tors or other valuables.” Offic er Skrletts testified, and the vehicle inventory ref lects, that he noted the prese nce of “loose DVDs and a play er, DVD play er in the passeng er compar tment.

. . . [and] a CD chang er i n the trunk.” I t is undisput ed that the of fice rs did not remove a

ny of these items fr om the car

. The g overnme nt argues that the “tow po l i cy au t h orizes, rathe r than mandates, that cer tain valuables be remove d from the vehicle.” Whil e this argument is technica lly corr ect, it is somewhat less than compelling

. More convincing is Offic er Skrletts’ testimony , wher ein he explained that the prac tice of the Cleveland police depar tment is to interpre t the phrase “whe re possible” to ref er only

13No. 08-3551

to removing items “at the request of the owner .” Otherw ise, Offic er Skrletts testified, the 6 depar tment interpre ts the policy to leave it to t h e t o wi ng office r’s discretion to either remove the proper ty , or document it on the inventory supplement form, as “the vehicle inventory is an inventory of things left in the vehicle.” (R. 26: Skrletts at 17.) See U nited States v. Lumpkin , 159 F.3d 983, 987-88 (in the absenc e of written policy in the rec ord, cre diting office r’s testim o n y re g arding standard operating p ro ce d u re ). This rea ding of the pol icy is consistent with the s tated purpose of conducting the inventory , which is “to protec t citiz ens and the division from false c laims.” Fur thermore , beca

use Def endant has “fa iled to demonstrate that the office rs impounded and inventoried the c ar ‘ in bad fa ith or for the sole purpose of investigation,’ the inventory sear ch wa s proper ly held lawful.” United States v. Hurst , 228 F.3d 751, 758 (6th Cir. 2000) (cit i n g United States v. Harve

y , 16 F.3d 109, 112 (6th Cir.1994)). There is no indication that Offic er Skrletts acte d in bad faith o r t h at t h er e was a serious depar ture from the require ments of the Tow Policy , considere d in its entirety , suffic i en t t o show that the inventory sear ch was “a prete x t conce aling investigatory

police motive.” Opperman , 428 U.S. at 376. Consequently , we find th a t th e o f f ic e r s p e r formed the inventory sear ch pursuant to the written policies of the Cleveland police depar tment, which comply with F ourth Amendment require ments for a war rentless inventory

sear ch.

Under this interpr etation, “whe re possible” is understood to mean when, at the time of the 6 i n v en t o ry and tow, there is someone available on the scene who is willing to take possession and store the va luables for

the owner

. 14No. 08-3551

C. Conclusion Be cause police had probable cause to arr est Hug hes for driving under suspensi o n , and did eff ect an arr est for that offe nse; and beca use they conducte d an inventory sear ch in acc ordanc e with the standardized tow policy of the Cleveland police depar tm en t , the require ments of the Four th Amendment are satisfied. Thus, we find that the district court did not err in deny ing Hug hes’ motion to suppress the fire arm, a nd we AF F IRM its decision.

CONCLUSION The district court did not err in denying Def endant’ s motion to suppress the firea rm, and we here by AF F IRM its suppression decision. We VACATE the sentenc e imposed by the district, and REMAND the ca se to the district court f or re sentenc ing.

15