* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31079

UNITED STATES OF AMERICA

Plaintiff–Appellee

v.

MICHAEL BRADY SWAN

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Louisiana

No. 5:06-CR-50014

Before DEMOSS, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Michael Swan appeals his conviction and sentence on drug and weapon

charges. Swan challenges the district court’s order denying his motion to

suppress evidence discovered in his vehicle following a traffic stop. He also

contends that the district court erroneously grouped two counts for sentencing

purposes. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

December 17, 2007

Charles R. Fulbruge III

Clerk
No. 06-31079

2

I

Swan, a multiple felon, was indicted after a loaded Glock pistol, four handmade explosive devices, and 196 grams of seven different drugs (mostly

methamphetamine) were found during a search of his vehicle following a traffic

stop. Swan ultimately entered a conditional guilty plea on three counts of a fourcount indictment charging him with (1) being an armed career criminal in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1)

(Count 1); (2) possession with intent to distribute more than 50 grams of a

mixture or substance containing a detectable amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) (Count 2); and (3) possession of a firearm

during and in relation to a drug-trafficking offense in violation of 18 U.S.C.

§ 924(c)(1) (Count 3). A fourth count involving possession of unregistered

grenades in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 was dismissed

based on Swan’s cooperation with related investigations.

Before pleading guilty, Swan moved to suppress the drugs, gun, and

explosives along with all post-arrest inculpatory statements. Swan argued that

his car was illegally searched without a warrant, consent, or probable cause. He

moved to suppress his post-arrest statements on the grounds that those

statements (1) were fruit of the poisonous tree, (2) were not made voluntarily,

and (3) were given in exchange for a promise of immunity from the armed career

criminal charge (Count 1) if he cooperated. Swan did not elaborate on the latter

two arguments. The Government conceded that there was no valid warrant and

no consent to search Swan’s vehicle but argued thatthe search was nevertheless

valid pursuant to: (1) the automobile exigent circumstances exception; (2) a

search incident to arrest following custodial arrest for traffic violations and

marijuana possession; (3) probable cause; (4) the plain view exception; (5) the

inventory search exception; and (6) inevitable discovery. Following an

evidentiary hearing, at which a videotape recording of the traffic encounter was
No. 06-31079

1 See FED. R. CRIM. P. 11(a)(2).

2 U.S. SENTENCING GUIDELINES MANUAL § 3D1.2(a) (Nov. 1, 2005) (“USSG”).

3 See id. § 3D1.1(b)(1) (“Exclude from the application of §§ 3D1.2-3D1.5 [grouping rules]

the following: Any count for which the statute (A) specifies a term of imprisonment to be

imposed; and (B) requires that such term of imprisonment be imposed to run consecutively to

any other term of imprisonment.”).

4

Id. § 4B1.4(a), (b)(3)(A) (“A defendant who is subject to an enhanced sentence under

the provisions of 18 U.S.C. § 924(e) is an armed career criminal. . . . The offense level for an

armed career criminal is the greatest of: . . . 34, if the defendant used or possessed the firearm

or ammunition in connection with either a crime of violence, as defined in § 4B1.2(a), or a

controlled substance offense, as defined in § 4B1.2(b), or if the firearm possessed by the

defendant was of a type described in 26 U.S.C. § 5845(a) . . . .”).

5 See id. (“If an [acceptance-of-responsibility reduction] applies, decrease the offense

level by the number of levels corresponding to that adjustment.”).

3

admitted, the district court agreed with a magistrate judge’s recommendation

to deny the motion to suppress. Swan’s conditional guilty plea, which preserved

his right to appeal the suppression issue,1 was entered shortly thereafter.

In the presentencing report (PSR), Count 1 (armed career criminal in

possession of a firearm) was grouped with Count 2 (drug trafficking) as “closely

related counts” that “involve the same victim and the same act or transaction”

pursuant to sections 3D1.1(a)(1) and 3D1.2(a) of the Sentencing Guidelines.2

Count 3 (possession of a firearm in connection with a drug trafficking offense)

could not be grouped because that offense carried a mandatory five-year

consecutive sentence.3 Counts 1 and 2 each carried an adjusted offense level of

29, after a three-point acceptance-of-responsibility reduction, but because Swan

was an armed career criminal, the base offense level for the grouped counts was

elevated to 34 pursuant to section 4B1.4(b)(3)(A) of the Guidelines.4 After the

acceptance-of-responsibility reduction, the total offense level for the grouped

counts was 31.5 Applying a level VI criminal history category, Swan’s guideline

sentencing range on the grouped counts was 188-235 months. 
No. 06-31079

6 18 U.S.C. § 924(c)(1)(D)(ii) (emphasis added).

4

In written objections to the PSR, Swan asserted that Counts 1 and 2 were

improperly grouped because the sentence on Count 3 could only be imposed

consecutively to Count 2, which would have an offense level of 29 if it were not

grouped with the armed career criminal count. The probation officer rejected

Swan’s argument based on statutory language precluding the sentence on Count

3 from being imposed “concurrently with any other term of imprisonment

imposed . . . .”6

At the sentencing hearing, the district judge overruled the grouping

objection, adopted the findings and recommendations in the PSR, and sentenced

Swan to concurrent sentences of 220 months in prison on Counts 1 and 2, a

consecutive 60-month sentence on Count 3, five years supervised release, and a

$300 fine. The district court determined that an upward departure would be

warranted because the level VI criminal history category under represented the

seriousness of Swan’s criminal history and likelihood of recidivism. However,

the court elected not to impose an upward departure, concluding that the 280-

month total sentence resulting from the consecutive sentence on Count 3 was

appropriate.

Swan now appeals the suppression issue and the grouping of Counts 1

and 2. As a corollary to the grouping argument, Swan also makes a perfunctory

challenge to the “reasonableness” of the sentence on Count 2, arguing that 220

months for that offense is not reasonable and that the consecutive sentence on

Count 3 should be appended to a reasonable sentence for Count 2. Swan does

not assert on appeal that his offense levels on Counts 1 and 2 were improperly

calculated or that he was entitled to any other reductions. Likewise, Swan does

not assert error in the criminal history score calculation or assert that his

sentence, or any of its components, exceed statutory maximums. Swan has also
No. 06-31079

7 Ornelas v. United States, 517 U.S. 690, 699 (1996).

8 United States v. Lopez-Moreno, 420 F.3d 420, 429-30 (5th Cir. 2005) (quoting Payne

v. United States, 289 F.3d 377, 381 (5th Cir. 2002)), cert. denied, 546 U.S. 1222 (2006).

9 Ornelas, 517 U.S. at 699.

10 392 U.S. 1 (1968).

11 Id. at 19-20; see also United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993).

5

abandoned his claims that his post-arrest statements were involuntary and that

the Government breached an immunity agreement, but he continues to argue

that his statements must be excluded as a product of an illegal search and

seizure.

II

On appeal from the denial of a motion to suppress, the district court’s fact

findings are reviewed for clear error, “giv[ing] due weight to inferences drawn

from those facts by resident judges and local law enforcement officers.”7 A fact

finding is clearly erroneous if the evidence, viewed in the light most favorable to

the party prevailing below, leads to the “‘definite and firm conviction that a

mistake has been committed.’”8 The district court’s legal conclusions, including

determinations of reasonable suspicion and probable cause, are reviewed de

novo.

9

Considering the evidence in the record and the parties’ arguments, we

have little trouble concluding that the discovery of contraband in Swan’s vehicle

was inevitable. As an initial matter, we conclude that the traffic stop was valid

under Terry v. Ohio.

10 Under the two-prong Terry inquiry, a traffic stop is valid

if it is (1) justified at its inception and (2) reasonably related in scope to the

circumstances that justified the interference in the first place.11 The District

Court did not err in concluding that the traffic stop was justified at its inception
No. 06-31079

12 Shabazz, 993 F.2d at 435 (“Appellants do not argue, nor could they, that the initial

stop of their vehicle for speeding was improper. This is so whether or not Terry applies.”).

13 Whren v. United States, 517 U.S. 806, 813 (1996); Lopez-Moreno, 420 F.3d at 432.

14 Lopez-Moreno, 420 F.3d at 430-31.

15 Id. (quoting United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc)).

16 Id.

17 Brigham, 382 F.3d at 510.

6

by at least one traffic violation, a missing license plate.12 That traffic violation

is undisputed and evident from the videotaped encounter. Contrary to Swan’s

argument, the arresting officer’s subjective motivations for making the stop are

immaterial as long as the stop or detention is objectively justified,13 which in this

case, it plainly was.

The second prong of the Terry test is satisfied if the officer’s actions after

making a legitimate traffic stop were reasonably related to either the

circumstances that justified the stop or to dispelling reasonable suspicion

developed during the stop.14 A Terry “‘detention must be temporary and last no

longer than is necessary to effectuate the purpose of the stop,’” but if further

reasonable suspicion emerges during the stop and is supported by articulable

facts, detention may continue until the new reasonable suspicion has been

dispelled or confirmed.15 During this brief period of detention, the officer may

examine the driver’s license and vehicle registration, run a computer check on

the driver and the vehicle, and question the driver about a wide range of

matters, including those unrelated to the purpose of the traffic stop.16 There is

no specific prohibition on the scope of permissible questioning “so long as the

overall detention is justified by reasonable suspicion.”17 Moreover, this court has

eschewed any particularized limitations on the permissible investigative tools

that may be utilized in connection with a Terry stop, holding that the relevant
No. 06-31079

18 Id. at 511 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).

19 LA. REV. STAT. ANN. § 32:863.1(C)(1)(a) (emphasis added).

20 Brigham, 382 F.3d at 509.

7

inquiry is “‘whether the police diligently pursued a means of investigation that

was likely to confirm or dispel their suspicions quickly.’”18

The district court correctly concluded that the second prong of the Terry

test was satisfied. Immediately after Swan’s vehicle was stopped, Swan exited

his vehicle, intercepted the arresting officer, and volunteered that he lacked

insurance on the vehicle. Contemporaneously with this admission, the arresting

officer discovered that Swan’s documents were insufficient to establish

ownership of the vehicle. Based on these circumstances, the arresting officer

was required to impound the vehicle pursuant to LA. REV. STAT. ANN.

§ 32:863.1(C)(1)(a), which states “[i]f the operator of a motor vehicle is unable to

show compliance with the provisions of [the compulsory motor vehicle liability

insurance law] . . ., the motor vehicle shall be impounded.”19 At the suppression

hearing, the arresting officer testified that he intended to impound the vehicle

at this point, but he asked additional questions, including whether Swan had

ever been arrested. Swan admitted he was on parole, and the officer verbally

noted that he reeked of marijuana. The officer then approached the vehicle and

initiated a search, which he characterized as a “frisk” of the vehicle for weapons

prior to initiating impoundment procedures.

Swan does not contend that the length of detention was too long, and we

conclude, in any event, that it was not. The entire encounter between Swan and

the arresting officer lasted approximately five minutes; the initiation of the stop

was justified at its inception; and the officer’s subsequent actions “exemplified

a graduated response to emerging facts,”20 were reasonable under the
No. 06-31079

21 Colorado v. Bertine, 479 U.S. 367, 371 (1987).

22 United States v. Walker, 931 F.2d 1066, 1068 (5th Cir. 1991) (quoting Florida v.

Wells, 495 U.S. 1, 4 (1990) and Bertine, 479 U.S. at 374 n.6) (internal quotation marks

omitted).

23 United States v. Privett, 68 F.3d 101, 103 (5th Cir. 1995).

8

circumstances and effectuated the objectively justified purpose of the stop. Thus,

both prongs of the Terry test are met. 

Although Swan contends that the arresting officer had no cause to search

or even approach his vehicle to conduct a visual inspection, we need not consider

these arguments or the applicability of any of the other asserted exceptions to

the warrant requirement because Swan’s voluntary admission that he lacked

insurance required that his vehicle be impounded, which would have resulted

in an inventory search and, ultimately, the discovery of the drugs and weapons

in the vehicle. 

An inventory search is a well-established exception to the Fourth

Amendment’s warrant requirement,21 but it cannot be subterfuge for criminal

investigations. In order to prevent inventory searches from being used as “a

ruse for a general rummaging in order to discover incriminating evidence[,]

. . . inventories [must] be conducted according to standardized criteria”22

“consistent with the proper purpose of a noninvestigative inventory search.”23

While it is true that the arresting officer in this case was not conducting an

inventory search atthe time the contraband was discovered, an inventory search

was an inevitable consequence of Swan’s failure to maintain liability insurance

on his vehicle.

Swan does not dispute that his vehicle could lawfully be impounded, and

he does not dispute that an inventory search could be conducted in connection

therewith. Swan argues, however, that the decision to impound the vehicle was

discretionary and thus required some proof regarding the police department’s
No. 06-31079

24 LA. REV. ST. ANN. § 32:863.1(C)(1)(a).

25 Id. (C)(1)(a); see also (C)(2).

26 Id. (C)(7) (giving an officer discretion to issue a temporary sticker valid for three

calendar days in lieu of impoundment when a passenger in the motor vehicle is under age

twelve or the driver or a passenger in the motor vehicle is handicapped or when there would

be a threat to public safety or to the occupants in the vehicle under the circumstances); cf. id.

(G)(4) (“The only acceptable means of proof of a valid and current policy of insurance shall be

one of the following: . . . The law enforcement officer making the stop has a reasonable belief

that the motor vehicle is covered by a valid and current policy of liability insurance.”).

9

guidelines for exercising that discretion. Section 32:863.1(C)(1)(a) of the

Louisiana Revised Statutes unambiguously states that a motor vehicle lacking

proof of insurance “shall be impounded” and dictates certain procedures that

must be followed in connection therewith.24 Despite this rather clear language,

Swan points out that other language in subsection (C)(1) specifies different

procedures to be employed “[i]n those cases in which a motor vehicle is not

impounded,”25 and he contends thatthis language indicates thatthe term “shall”

in subsection (C)(1)(a) may be fairly read as “may.”

Swan failed to cite any Louisiana cases previously considering this issue,

but we are unconvinced that the argument has merit. The Louisiana statute at

issue specifically enumerates circumstances in which an officer has discretion

notto impound a vehicle lacking liability insurance, butthose circumstances are

limited and do not apply in this case.26 Although the statute is not a model of

clarity, the language Swan cites more reasonably refers to those specifically

enumerated situations and a plain reading of the statute does not require us to

read the term “shall”in subsection (C)(1) contrary to its ordinary meaning. Were

we to read the term “shall” in (C)(1) as discretionary, it would effectively obviate

the other procedures that the same subsection dictates “shall” be followed when

a vehicle is impounded, which is not a reasonable reading of the statute:

[T]he motor vehicle shall be impounded and the operator shall be

issued a notice of noncompliance . . . such notice may be sent by first
No. 06-31079

27 Id. (C)(1)(a); cf. id. § 32:863 (“[W]hen the secretary determines that a vehicle is not

covered by security [as required by law] . . ., he shall revoke the registration of the vehicle,

impound, or cancel the vehicle’s license plate.”).

28 See generally United States v. Lamas, 930 F.2d 1099, 1102-04 (5th Cir. 1991).

29 Walker, 931 F.2d at 1069.

10

class mail. A copy . . . shall be provided to the towing or storage

company and . . . shall be forwarded to the office of motor vehicles

within three calendar days . . . . The notice . . . shall serve as notice

of administrative hearing rights. In addition, the law enforcement

officer shall remove the license plate. The law enforcement officer

shall deliver the vehicle license plate to the chief of the agency

which employs the officer . . . .27

Thus, contrary to Swan’s argument, the arresting officer was required to

impound the vehicle, which would have resulted in an inventory search and

discovery of the weapons and drugs. Therefore, the weapons and drugs were

admissible under the inevitable discovery exception.28

To the extent Swan contends that there is no evidence concerning the

procedures for conducting an inventory search, Swan is incorrect. The arresting

officer testified that police department policy required the impounded vehicle to

be inventoried, and the appropriate forms completed, before the vehicle could be

released to the towing company. Therefore, the vehicle would have been

inventoried before leaving the scene. The officer further testified that he had the

necessary forms in his vehicle and that it would have been permissible to allow

Swan to remove personal items before impoundment, which would have

necessitated a limited inspection for weapons. Although no written policy was

admitted,there is no requirementthat a police department’s inventory policy be

written.

29 Moreover, there was no contrary evidence to suggest that the

arresting officer did notfollow appropriate procedures for impounding a vehicle.

The district court therefore correctly determined that impoundment of the

vehicle was mandatory and that discovery of the contraband was inevitable.
No. 06-31079

30 See FED. R. APP. P. 28(a)(9) (requiring appellant’s brief to include “the argument,

which must contain . . . appellant’s contentions and the reasons for them, with citations to the

authorities and parts ofthe record on which the appellant relies”); United States v. Avants, 367

F.3d 433, 442 (5th Cir. 2004) (holding that failure to adequately to brief an issue on appeal

constitutes waiver of that argument).

11

III

We do not address the merits of Swan’s argument that the district court

erroneously grouped Counts 1 and 2 because the argument in his appellate brief

is conclusory and unsupported by any authority. Swan fails to cite or discuss the

applicable grouping rules, the statutory language governing the consecutive

sentence on Count 3, and any applicable case law. This argument is therefore

waived.30

* * * *

For the foregoing reasons, Swan’s CONVICTION and SENTENCE are

AFFIRMED.