1 In The Court of Appeals Ninth District of Texas at Beaumont

__________________ NO. 09

- 20

- 00119

- CR

__________________ JAMES BOYD AUSTIN , Appellant
V. THE STATE OF TEXAS, Appellee

__________________________________________________________________ On Appeal from the 296 th District Court Collin County, Texas Trial Cause No . 296

- 84448

- 2018

__________________________________________________________________ MEMORANDUM OPINION In this prosecution of the defendant for possessing between four and two hundred grams of methamphetamine , defendant was convicted of possessing meth police found in t he center console of his car after he was stopped by police and his car was impounded an d searched

. 1 Defendant

1 See Tex. Health & Safety Code Ann. § 481.115(d). Austin filed his appeal in the Fifth Court of Appeals , but i n Ap ril 2020 , the Texas Supreme Court signed a docket

- equalization order and transferred the2 moved to suppress the evidence police seized from his car, but the trial
court denied the motion . Several months later, the defendant pleaded guilty pursuant to a plea agreement, and the defendant appeal ed

. In a single issue , James Boyd Austin contends the search of his car violated his constitutional and statutory rights against an unreasonable search
and seizure because t he purported inventory search police performed on
his car was conducted in bad faith

. 2 Concluding Austin’s argument lack s merit , we will affirm. Background
In 201 8 , a grand jury indicted Austin for possessing between four and two hundred grams of meth. 3 Austin’s indict ment was based on meth
that an officer employed by the City of Allen Police Department found in Austin’s car after another officer stopped Austin for violating two Texas
traffic laws

. 4 After Austin was stopped , the officer who conducted the stop
arrested Austin for driving with an expired registration

. And following
Austin’s arrest , the police impounded his car as required by the Allen

appeal to the Ninth Court of Appeals to equalize the appellate dockets. See Tex. Gov’t Code Ann. § 73.0 01. 2 See U.S. C ONST . amend. IV; Tex. Const. art. I, § 9

. 3 See Tex. Health & Safety Code Ann. § 481.115(d).
4 See Tex. Transp. Code Ann. §§ 502.040(a), 502.407(a), 601.051.3 Police Department’s “Vehicle Impounds” General O rder (“the Impounds Order”). Officer Hein, who had arrived on the scene with another officer to back up the officer who placed Austin under arrest, performed the inventory search on Austin’s car
. When Officer Hein opened the car’s center console and emptied its conten t s, he discovered a baggie of meth
in side

. 5
After Austin was indicted , Austin filed a boilerplate motion to

suppress , claiming police detained and arrested him without reasonable suspicion or probable cause and seized evidence without having a valid

warrant authoriz ing police to search or seiz e evidence, which violated his statutory and constitutional rights

. Six week s after Austin filed the
motion to suppress , Austin filed a brief to support his motion , claiming
the officers who performed the inventory searc h of his car failed to
conduct the search in good faith under the written polic ies , adopted by the City of Allen, appl icable to vehicles impounded by police. In his brief,
Austin claimed the officers who performed the invento r y search of his car

5 The officer who stopped Austin and arrested him did not testify in the hearing on Austin’s motion.4 carried the purported inventory search out as a subterfuge so they could investigate whether criminal activity had occurred. When the trial court held a hearing on Austin’s motion, just one witness testif ied, the officer who performed the inven tory search on Austin’s car. During the hearing, the officer introduced him self as

“ O fficer Hein with [the] Allen Police Department.” 6 When question ed by the prosecutor, Officer Hein testified he was in training and accompan ied by another officer, Officer Ramirez , who was his training officer the day they arrived on scene to “back up Officer Pope [.] ” According to Hein, Officer Pope stopped Austin and took Austin into custody while Hein and Officer Ramirez stayed and performed the inventory search on Austin’s

car. Officer Hein explained he saw Austin at the scene , but he denied ever speaking to Austin that day. Officer Hein testified that when he performed the inventory search on Austin’s car

. he “[l]ocated narcotics
within the vehicle.” Officer Hein generally descri bed what he does when performing an inventory search. He stated: “Basically, we look any where
that valuable s could be contained.”

6 Nothing in the reporter’s record o r clerk’s record identifies Officer Hein by his first name, so we refer to him the opinion as Officer Hein.5 A copy of the City of Allen Police Department ’s Impounds Order , call it the Impounds Order, contains the policies applicable to vehicle s police employed by the City of Allen impound and inventory . The Impounds Order was admitted into evidence during the hearing. 7 We note the Impounds Order requires officers to “inve ntory closed containers that may be opened, without damage to the container.” And it requires “[a ]ll vehicles being impounded [to] be inventoried for the protection of the owner’s personal property as well as the Department.” Turning to the detail s of Of ficer Hein’s inventory of Austin’s car, the prosecutor asked Officer Hein whether the City of Allen has “an inventory policy in place

. ” O fficer Hein confirmed the City did have an inventory polic y in place . Then, the prosecutor asked: (Attorney) Q. Did you follow it according to what you needed and what you should have done? (Officer) A. I did. It was. (Attorney) Q. Did you believe that this was a narcotic investigation? (Officer) A. Not until narcotics were uncovered. (Attorney) Q. Were you surprised when you did find narcotics? (Officer) A. Yes ma’am. (Attorney) Q. Did you believe this to be an investigatory search when you started your inventory? (Officer) A. No ma’am.

7 The Impounds Order was admitted without o bjection.6 Even though Austin’s attorney ’s cross - examined Officer Hein , we find nothing in Officer Hein ’s testimony show ing that he failed to follow
the written polic y as that policy is described in the Impounds Order regarding the manner of the inventory search occurred

. T he evidence the
trial court considered during the hearing on Austin’s motion includes a videorecording from a body camera worn by Officer Hein on the scene. Nothing in the videorecording contradicts the officer’s testimony. Further, we note that during the hearing th e prosecutor told the trial court that the parties had agreed Austin did not dispute the validity of the stop or his arrest

. When the prosecutor made that statement , Austin’s attorney responded : “Yeah[.] ” Further, in the hearing Austin’s
attorney never argued or claimed that Austin’s stop or that Austin’s arrest incident to the stop violated the law

. When the hearing ended, the trial court denied Austin’s motion

. The trial court made the se three findings orally on the record in t he hearing:

• “[T]he Allen Police Department did have a v a lid policy concerning inventory searches [;] ”

• “Officer Hein’s search was pursuant to that valid policy [;] ” and

• The inventory of Austin’s car “was not an illegal search [

. ] ”7 This appeal followed.
Standard of Review
T o suppress evidence for an alleged Fourth Amendment violation,
the defendant bears the initial burden of rebutting the presumption the police acted properly. 8 A defendant satisfies his initial burden if he
establishes that the search or seizure occurred without a warrant. 9 Once
the defendant shows he was searched or his property was seized without

a warrant, the burden shifts to the State to establish that the search and
the seizure were reasonable. 10 In evaluating a trial court ’ s suppression ruling, we must keep in mind that the “ touchstone of the Fourth
Amendment is reasonableness, not individualized suspicion. ” 11 In evaluating whether a given search was reasonable, we evaluate it in
relation to the sear ch ’ s “ scope and manner of execution. ” 12

8

Amador v. State , 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v. State , 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). 9

Amador , 221 S.W.3d at 672. 10 Id. at 672

- 73; Torres v. State , 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 11 Samson v. California , 547 U.S. 843, 855 n.4 (2006). 12 Maryland v. King , 569 U.S. 435, 448 (2013).8 We use a bifurcated standard to review a trial court’s ruling on a motion to suppress

. 13 Under that standard:
The trial court is given almost complete deference in its determination of historical facts, especially if those are based on an assessment of credibility and demeanor. The same deference is afforded the trial court with respect to its rulings on application of the law to questions of fact and to mixed questions of law and fact, if resolution of t hose questions depends on an evaluation of credibility and demeanor. However, for mixed questions of law and fact that do not fall within that category, a reviewing court may conduct a de
novo review. 14 As the sole judge of the credibility and weight to give the evidence admitted in the hearing on Austin’s motion to suppress, the trial court
had the discretion to accept or to reject Officer Hein’s testimony about
the purpose and reasons he searched Austin’s car

. 15 “That same
deferential standard of review applies to a trial court’s determination of historical facts [eve n ] when that determination is based on a videotape recording admitted into evidence at a suppression hearing.” 16

13 Lerma v. State , 543 S.W.3d 184, 189

- 90 (Tex. Crim. App. 2018). 14 State v. Martinez , 570 S.W.3d 278, 281 ( Tex. Crim. App. 2019) (cleaned up). 15 See State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (noting that the trial judge acts as the trier of fact in a suppression hearing). 16 State v. Duran , 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (cleaned up).9 Analysis
The Fourth Amendment to the United States Constitution and

art icle I, section 9 of the Texas Constitution protects against
unreasonable searches and seizures. 17 While subject to several exceptions, the well

- established rule is that “‘ searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. ’” 18 An inventory
search of a vehicle that has been lawfully impounded by police is but one of the recognized exceptions to the general rule requir ing police to obtain
a warrant be fore search ing or seizing property. 19 The rationale for the exception is tied to the shared interest that exists between the government and the property ’s owner since the police,
after impound ing a car , are potentially responsible for its contents

. 20 Consequently, when authorized through a written policy identi fying

17 U.S. C ONST

. amend

. IV ; Tex. Const. art. I, § 9; Johnson v. State , 912 S.W.2d 227, 232 (Tex. Crim. App. 1995) (explaining a rticle I, section 9 offers no protections substantively differ ent from those afforded by the Fourth Amendment). 18 Unite d States v. Ross , 456 U.S. 798, 825 (1982) (citations omitted). 19 Colorado v. Bertine , 479 U.S. 367 (198 7 ) ; South Dakota v. Opperman , 428 U.S. 364 (1976)

. 20 See Bertine , 479 U.S. at 372; Opperman , 428 U.S. at 370

.10 what an officer may inventory after impounding a car , the search that
results serves “ to protect the owner’s property while it is in the custody of the polic e , to insure against claims of lost, stolen, or vandalized property, and to guard the police from [the] danger [the contents in the

car may pose to the police or to others.]” 21 Still the department’s policy “should be designed to produce an inventory[,] ” and under the policy “the individual police officer must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime.” 22 That said, courts need not apply an all or nothing requirement to a department’s written policy authorizing an inventory search to find that a given inventory search an officer carried out pursuant to departmental policy was reasonable

. 23 So , police need not “affirm that they had absolutely no hopes or expectation of finding contraband or other inculpatory material ” to justify inventorying a vehicle when the vehicle
has been lawfully impounded. 24

21 Bertine , 479 U.S. at 380. 22 Florida v. Wells , 495 U.S. 1, 4 (1990) (cleaned up). 23 Id

. 24 Vargas v

. State , 542 S

. W

. 2d 151 , 154 (Tex. Crim. App. 1976); see also United States v. Prescott , 599 F.2d 103, 106 (5th Cir. 1979)11 Austin argues the trial court erred in denying his motion to suppress because the State failed to carry its burden of proof to show the officers who inventoried his car conducted the search in good faith according to the written policies of the Allen Polic e Department. Those policies, according to Allen, required Officers Hein and Ramirez to itemize “all property belonging to a person who is arrested by the department.” Austin notes the list of items that Officer Hein wrote on the inventory performed on his car lists just four items in his car

— three
De W alt ® tools and one additional general category , which is listed as
“misc. tools.” But Austin claims the itemized list in the inventory form on his car , admitted into evidence as State’s Exhibit 3, doesn’t include
twenty

- two items clearly visible in the videorecording taken from Officer
Hein ’s body camera . The videorecording from the body camera was admitted in the hearing as State’s Exhibit 1

. 25 Accordi ng to Austin,

(explaining that under the Fourth Amendment when “an inventory search is otherwise reasonable, its validity is not vitiated by a police officer’s suspicion that contraband or other evidence may be found”). 25 To be fair, Austin argues these twenty

- two items, which he listed, were only “illustrative of the prob lem [,] ” and he says the twenty

- two specific items he listed in his brief are not a comprehensive list of the items Officer Hein omitted from the inventory in the Vehicle Impound form he filled out conducting his search

.12 because the evidence shows he was arrested on a minor traffic infraction
and Officer Hein failed to follow the Department ’s written Impound s Order when searching h is car, the trial court should have inferred Officer
Hein’s purpose in searching his car was to investigate whether a crime had occurred and rejected the State’s claim that Hein was conducting the search pursuant to the requirements of the Police Department’s Impound s Order

. To support his claim the trial court ’s ruling s hould be reversed , Austin relies heavily on Cox v. State , No. 05

- 14

- 00553

- CR, 2015 Tex. App. LEXIS 3217 (Tex. App.

— Dallas Apr. 1, 2015, no pet.) ( not designated for publication). In Cox , an officer conducted an inventory search of a truck
after the officer arrested the truck’s driver for a minor traffic violation and impound ed the truck. 26 The arresting officer performed what he
described as an inventory search of the truck and found meth . The officer who arrested Cox and performed the search tes tified that under the Department’s policy for impounding vehicles, he was required to document everything of value left in a vehicle on the impound inventory

26 Cox v. State , 2015 Tex. App. LEXIS 3217, at * 2 (Tex. App.

— Dallas Apr. 1, 2015, no pet.)

.13 form. 27 Yet the inventory form the officer filled out listed only two general categories of proper ty without a description, and a videorecording from
the officer’s body camera showed the truck contained many items that
were not document ed on the form the officer filled out

. 28 Importantly, unlike Austin’s case, a copy of the written policy of the City of Collinsville’s Police Department was not admitted into evidence , so the appellate court had only the testimony of the officer employed by the City
who arrested Cox to rely on when evaluat ing what the police depar tment’s policy required

. 29 Here, the evidence before the trial court includes the written policy of the Allen Police Department . It describ es the standardized procedure s Officer Hein follows in performing inventory search es
. The Department ’s Impound s Orde r doesn’t require the City’s officer to document everything of value on the inventory form , as Austin claims . T he Vehicle Impound s form , which Hein filled out , does not require that everything in the car
be document either. Simply put, with the exception of animals and

27 Id

. at *5. 28 Id . at *2

- 3 ( “Under the section of the form for the description of any personal property left in the vehicle, Officer Aguirre wrote only that the vehicle contained miscellaneous tools and miscellaneous clothing.”). 29 Id . at *5.14 property that an officer remove s from a vehicle, the Department’s written policy appears to leave it to an officer’s discretion what items to put on
the form

. Second, Cox does not control the outcome in Austin ’s appeal
because it is an unpublished opinion

. 30 U nder the Rules of Appellate
Procedure , unpublished opinions have “no precedential value[.]” 31
Here , the parties do not dispute that Austin was lawfully stopped, his car lawfully impounded, or that the City of Allen Police Department
ha s a written policy stating what the Department’s officers are supposed to do when inventory ing the contents of car impounded by police. So t he appeal hinges on two things: (1) Does the Impounds Order require Officer
Hein to it e mize “all property belonging to a person who is arrested by the department [;] ” and (2) Are we required to defer to the trial court’s implicit finding that Officer Hein p erformed the inventory in good faith even if he
didn’t complete exhaust all procedures required by the Impounds Order? To begin, we note that the Department’s Impounds Order does not state that the officer performing the inventory must itemize “all property belonging to a person who is arrested by the [D]epartment,” as Austin

30 See Cox , 2015 Tex. App. LEXIS 3217. 31 Tex. R. App. P. 47.4(a).15 claims. Instead, Austin misquotes the sentence in the Department Impounds Order to make it fit the arg ument he makes on appeal. His claim that the Impounds Order required Officer Hein to itemize all the property in Austin’s car because Austin was arrested rests section II of
the Vehicle Impounds Order under section labeled “Policy

. ” That section

states:
T he Allen Police Department has an obligation to safeguard all property belonging to a person who is arrested by this Department , is involved in a motor vehicle accident or any other situation which renders them incapable of protecting or otherwise disposin g of the property themselves. This General Order provides the guidelines necessary for the removal or towing of vehicles that are not drivable due to accident, illegally stopped, standing or parked, stolen or abandoned or in this Department ’ s custody for a ny reason. Procedures for the removal, inventory and storage of property are also addressed. (emphasis added by the Court). Thus, Austin changed the word safeguard to itemize because the word safeguard doesn’t help his argument . Safeguard does not imply a requirement that every item in a vehicle be itemized to protect it from
harm

. For example , safeguarding all property belonging to Austin necessarily included his car. So as the term safeguard is used in the Impounds Order, the term carries its common meaning, to guarantee and16 protect the property’s safety. 32 Moreover, t he section set out the policy,
and is not the section that specifically instruct s officer s about what they
are to do in performing an inventory on a vehicle . Those instructions are
found in an other part of the Impounds Order. We turn then to the part of the Impounds Order that does describe what an officer must do on impounding a vehicle. Section III of the Impounds Order identifies the “Duties and R esponsibilities” of the Department’s officers . T hat section requires the Department’s officers to
do these four things:
1. Accurately and legibly complete an Impound Report (APD

189) on every vehicle impounded. 2. When items are removed from an impounded v ehicle, ensure they are properly maintained, tagged, and placed in prope r ty /evidence storage. 3. Ensure non

- motor vehicle items are documented on proper fo r ms. 4. Do not leave the scene until the wrecker has secured the vehicle and is ready to leave unles s the officer directs a Citizen on Patrol (COP) or a Public Safety Officer (PSO) to remain at the location. In Addition to Section III, s ection VI B of the Impounds Order describes
that if an item is remove d from a vehicle for safekeeping, such as money

32 See W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1998 (2002)

.17 or jewelry , the item must be listed in the space labeled “Items Removed from Vehicle Prior to Inventory” on the Vehicle I mpound Report (APD

189). That page is not part of Exhibit 3, and no one asked if Officer Hein
removed a ny items from Austin’s car. Lastly, Section VI C describes what officers must put on the inventory in the “Items Removed from Vehicle Prior to Inventory” should
an officer find an animal in a vehicle. When the Impounds Order is viewed as a whole, the Dep artment’s Impounds Order demonstrates its procedures are designed to allow an officer to produce an inventory of
what an officer views as the significant items found in a vehicle along
with any items removed from a vehicle

. From examining the written Impounds Order , t he trial court could have reasonably conclude d it was not designed to allow an officer to search a vehicle for incriminating evidence without probable cause and that instead it was designed to produce an inventory of the items the officer, in the officer’s discretion, viewed as having a significant value sufficient to note the item on the inventory form.
The trial court could also reasonably conclude from the evidence that Officer Hein complied with the Department’s procedures in filling18 out the Impound Report (APD

- 189) . The Impound Report was admitted into evidence in the hearing. According to Officer Hein, he complied with the Department’s policies when he filled out the report , and as previously noted, nothing in the Department ’s written policies required Officer Hein

to list every item he found and left in the vehicle on the form. When
Officer Hein was examined and asked what he did, Officer Hein testified
he just went through the car “to make sure there is nothing of value in there. If there is, then we annotate it.” When asked what he listed in the Impound Report , Hein testified he listed “some high value power tools, et cetera, and tools.” Importantly, no one asked Officer Hein whether , in hindsight and after having viewed the items in the videorecording, he l e ft items of value off the Impound R eport that, in hindsight, he believed he should have included on the form. And there is no testimony placing any value on any of the items in Austin’s car. Austin complains that the fact Officer Hein was opening things inside his car, like the car’s center console, shows he was looking for
evidence of a crime. But t he Impounds Order authorizes City of Allen police officers to open closed containers when inven torying car s
. The Impounds Order, Section IV A 3, states: “The inventory shall include the19 inventory of closed containers that may be opened, without damage to
the container.” During the hearing, Austin did not prove ( and he does not

argue ) on appeal that Officer Hein damaged anything in his car , including the center console. Thus, the trial court could reasonably reject
Austin’s claim that Officer Hein opened the center console of the car and
other closed containers because he was looking for evidence of a crime

. Instead, the trial court was entitled to accept Officer Hein ’s testimony
that he was following the Department’s Impound s Order in carrying out
his search. It follows that the trial court could reasonably conclude the
officer based his decision to open the console on a standardized criteria applicable to conducting the inventory search at issue , not simply the
officer’s suspicion of a crim e
. 33
We conclude t he trial court’s findings

— that the Allen Police Department has a valid polic y to inventory vehicles police have impounded , and that Officer Hein carried out his search in accord with that policy

— are rationale findings from the evidence admitted in the hearing on Austin’s motion

. Austin failed to produce any evidence in the hearing to prove that Officer Hein, who was following the Impounds

33 See Bertine , 479 U.S. at 375.20 Order and filled out the information required by the Impound Report (APD

- 189), acted in bad faith or for the sole purpose of investigating
crime. 34
Conclusion
Because we conclude Austin’s arguments supporting his issue that the trial court erred in denying his motion to suppress lack merit, the trial court’s judgment is
AFFIRMED

.

_________________________ HOLLIS HORTON Justice
Submitted on J anuary 4 , 202 2 Opinion Delivered September 28, 2022 Do Not Publish
Before Golem o n, C.J., Kreger and Horton, JJ.

34 See id. at 372.