IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11374

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLINTON WADE DUNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CR-97-ALL

ON REMAND FROM THE SUPREME COURT

OF THE UNITED STATES

Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:

*

Clinton 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

120-month sentence. The case returns to us following a limited remand to the

district court for the purpose of conducting an evidentiary hearing and any other

proceedings deemed necessary for a determination on the issue of inevitable

discovery after the Supreme Court of the United States vacated our initial

United States Court of Appeals

Fifth Circuit

F I L E D

November 5, 2010

Lyle W. Cayce

Clerk

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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judgment and remanded the case for further consideration in light of Arizona v.

Gant, 129 S. Ct. 1710 (2009). Following the evidentiary hearing, the district

court found that the warrantless search of Dunson’s vehicle, which was done

incident to his arrest and is now invalid under Gant, was nevertheless valid as

an inventory search done pursuant to standard police procedures. It therefore

found by a preponderance of the evidence that the inevitable discovery exception

to the exclusionary rule applied.

We accept a district court’s findings made on a motion to suppress based

on live testimony “unless clearly erroneous or influenced by an incorrect view of

the law.” United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). “Under the

clearly erroneous standard, we will uphold a finding so long as it is plausible in

light of the record as a whole.” United States v. Ekanem, 555 F.3d 172, 175 (5th

Cir. 2009). The evidence is to be evaluated in the light most favorable to the

party prevailing in the district court, in this case, the Government. Foy, 28 F.3d

at 474.

The district court found as a factual matter that the truck Dunson was

driving at the time of his arrest had the indicia of being stolen and that the

suspicion that Dunson was driving a stolen vehicle was one of the reasons that

Officer Stillman called for it to be impounded under the standard Bedford,

Texas, Police Department policy for impounding vehicles and conducting

inventory searches. Dunson now argues that, to the extent that the policy

permits officers to impound and conduct an inventory search of a vehicle on the

suspicion of theft without probable cause or a warrant, the policy violates the

Fourth Amendment. Specifically, he contends that the seizure of a vehicle on

the suspicion of theft fails to invoke the police’s caretaking function and is so

broad as to allow evidentiary searches under the guise of inventory searches. He

further contends that the facts failed to show that Officer Stillman had a

reasonable suspicion of theft in this case, particularly as Officer Stillman’s

memory was uncertain, making his testimony little more than mere speculation.

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Dunson cites no authority for his argument that the policy of impounding

a vehicle suspected to be stolen does not implicate the community caretaking

function of the police. The argument is unpersuasive. As the Government

contends, a critical aspect of the community caretaking function is to protect

property, which, in the case of a suspected theft, necessarily involves securing

the vehicle until the rightful owner is located. Cf. United States v. Andrews, 22

F.3d 1328, 1334 (5th Cir. 1994); United States v. Staller, 616 F.2d 1284, 1289

(5th Cir. 1980). The district court’s implicit finding that the BPD policy

permitting impoundment of suspected stolen vehicles serves a proper community

caretaking purpose is plausible in light of the record and is therefore not clearly

erroneous. See Ekanem, 555 F.3d at 175.

Similarly, when viewed in the light most favorable to the Government,

Officer Stillman’s uncontroverted testimony established a valid suspicion that

the truck Dunson was driving was likely stolen, given the following: Dunson

was not the owner of the truck; the truck bore a false registration sticker which

had been issued to a Cadillac, removed from that vehicle, and placed on the

truck; the truck also bore an obviously forged inspection sticker; and Dunson

was unable to answer questions about his authority to drive the vehicle in a

satisfactory manner. The district court’s finding that Officer Stillman had a

reasonable suspicion that Dunson was driving a stolen truck is plausible in light

of the record and will be upheld. See Ekanem, 555 F.3d at 175.

Thus, Officer Stillman acted pursuant to normal police procedures in

impounding the truck Dunson was driving based on his suspicion that the truck

was stolen, which fact would have resulted in an inventory search of the truck;

the inventory search in turn would have inevitably uncovered the gun and the

drugs at issue. See Florida v. Wells, 495 U.S. 1, 4-5 (1990); Andrews, 22 F.3d at

1334. As the district court determined, its denial of Dunson’s motion to suppress

may therefore be upheld under the inevitable discovery doctrine, despite the

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invalidity of the search as incident to Dunson’s arrest under Gant. See Jackson,

596 F.3d at 241.

Dunson urges that because Officer Stillman offered two possible reasons

for impounding the truck, suspicion of theft and the poor condition of the vehicle,

but was unable to specify on which reason he actually relied, this court must find

that both proffered reasons warranted an inventory search before the district

court’s ruling can be affirmed. However, he misconstrues the nature of the

district court’s findings. Although Officer Stillman testified that he could not

recall exactly which of the two proffered reasons was the basis for his having

called a tow truck to impound the vehicle, the district court found that it could

infer from his testimony that the suspicion of theft was a reason, if not the sole

reason, that Officer Stillman impounded the vehicle. Because the district court

definitively found that suspicion of theft was one of the reasons Officer Stillman

acted, because the finding is plausible in light of the record, and because the

officer’s suspicion authorized the impoundment and inventory search under

normal police procedures, this court need not address the validity of the

additional proffered reason, the poor condition of the vehicle.

The district court’s judgment is AFFIRMED.

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