Revised February 12, 1999
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 96-40687
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDGAR CASTRO,
Defendant-Appellant.
*****************************************
______________________________
No. 96-40694 ______________________________
SUSANA GOMEZ,
Appeals from the United States District Court for the Eastern District of Texas
January 28, 1999 Before KING,* Chief Judge, POLITZ,* JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:
On November 9, 1995, an officer of the Polk County Sheriff’s
Department stopped a Chevrolet Suburban traveling north on Highway
59, in Texas, for speeding and seat belt violations. He
subsequently arrested two of the three occupants for seat belt
violations, and impounded the Suburban. At the sheriff’s
department a search of the Suburban revealed over 900 pounds of
cocaine hidden in the back of the vehicle. Edgar Castro, the
driver, and Susana Gomez, the back seat passenger, were then
charged with conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. § 846, and possession with
intent to distribute cocaine, in violation of 21 U.S.C. §
841(a)(1).2 When the district court denied their motions to
suppress evidence found during the search, Castro and Gomez pleaded
* At the time of submission and oral argument Judge Politz was Chief Judge. Judge King became Chief Judge on January 16, 1999. 2 Muriel Cristina Vicencio, the front seat passenger, was charged for the same crimes. She is not a party to this appeal, however.
2 guilty to the charges and appealed.3 In that appeal we were asked
to decide whether the district court erred in not suppressing the
evidence. A panel of this Court answered that question in the
affirmative, holding that the officer violated the Fourth Amendment
rights of Castro and Gomez by impounding the Suburban and searching
the vehicle. United States v. Castro, 129 F.3d 752 (5th Cir.
1997). We granted rehearing en banc, United States v. Castro, 143
F.3d 920 (5th Cir. 1998), and now hold that Castro and Gomez did
not suffer a violation of their Fourth Amendment rights.
I.
On the afternoon of November 9, 1995, several officers of a
joint state and federal task force were conducting surveillance of
Javier Vallejo, a suspected narcotics trafficker, at a mall in
Houston, Texas. In the course of their surveillance the officers
noticed that Vallejo was accompanied by Gomez and an unidentified
Hispanic male. Shortly after, the agents observed Gomez and the
unidentified male leaving the mall in a grey van. Gomez was
subsequently dropped off at a K-Mart, where she made a telephone
call and bought some insignificant items, while her companion
detoured to a known stash house. The unidentified male eventually
returned to K-Mart -- after engaging in several evasive maneuvers
3 Castro and Gomez reserved their right to appeal the district court’s denial of their suppression motions.
3 aimed at losing any possible surveillance -- and retrieved Gomez.
The agents then followed the pair to a local motel, where Gomez was
joined by Castro and Muriel Cristina Vicencio.
From the motel Castro drove a blue Chevrolet Suburban to the
mall, while Gomez and Vicencio followed in two separate vehicles.
After going inside the mall for roughly fifteen minutes, the trio
left the mall in the Suburban and began to travel north on Highway
59. Castro was driving, Vicencio occupied the front seat, and
Gomez occupied the rear seat. Several members of the task force
followed the Suburban for approximately 115 miles through Harris,
Montgomery and San Jacinto Counties, and into Polk County. After
the Texas Department of Public Safety informed the officers that it
did not have an available unit to stop the vehicle, officers of the
task force contacted the Polk County Sheriff’s Department for
assistance.
In a brief conversation, Lieutenant Mike Nettles of the Polk
County Sheriff’s Department was given a description of the Suburban
and informed that it was “involved in a narcotics investigation.”
He was also instructed that he would have to “develop his own
probable cause” for stopping the vehicle. Officer Nettles, who had
positioned his patrol car in the median of Highway 59, watched the
Suburban as it passed and noticed that Castro, the driver, was not
wearing his seat belt, and that the Suburban seemed to be traveling
at an excessive rate of speed. Officer Nettles then followed the
Suburban for several miles and with his speedometer paced the
4 Suburban at 67 m.p.h. in a 55 m.p.h. zone. While following the
vehicle Officer Nettles also observed that Vicencio, the front seat
passenger, was not wearing her seat belt, and that the vehicle
appeared to have a heavy rear load which was causing it to sway
sightly.
Officer Nettles then stopped the Suburban for speeding and
seat belt violations. On approaching the vehicle Officer Nettles
again observed that Castro and Vicencio were not wearing their seat
belts. In the ensuing conversation, Castro produced a valid
Maryland driver’s license and explained that all three of the
occupants were from out of state. Officer Nettles ran a check on
Castro’s license, which revealed no outstanding warrants.
Nonetheless, after receiving several conflicting statements from
the occupants, and based on their nervous demeanor, Nettles decided
to arrest Castro and Vicencio for the seat belt violations.
Officer Nettles also requested Castro’s consent to search the
Suburban, which was denied. Castro and Vicencio were then taken
into custody; the Suburban was impounded and brought to the
sheriff’s department.4
There, Castro again refused to consent to a search of the
Suburban. A trained narcotics detection dog was subsequently
4 The sheriff’s department was a building and facility located about six miles away from the place on Highway 59 where the Suburban was initially stopped. Gomez, the back seat passenger, was not taken into custody. She was taken to the sheriff’s department, however, because she was not an authorized driver on the Suburban’s rental agreement.
5 brought to the sheriff’s department and walked around the Suburban.
After the dog alerted to the rear of the Suburban, the vehicle was
entered and searched, uncovering almost 900 pounds of powder
cocaine, packaged in two-kilogram bricks contained in several large
trash bags.
On December 7, 1995, the three occupants were indicted by a
federal grand jury on one count of conspiring to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846, and
one count of possession with the intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1). Castro and Gomez subsequently
filed motions to suppress the cocaine as evidence based on the
contention that Officer Nettles had violated their rights under the
Fourth Amendment. A suppression hearing was held over the course
of two days, in which the district court heard testimony from
roughly a dozen witnesses. On March 15, 1996, the district court
denied the motions to suppress in a lengthy and detailed memorandum
order. Castro and Gomez then pleaded guilty to the two charges,
reserving their right to appeal the district court’s ruling on the
suppression issue. Castro and Gomez were sentenced to 135 months
of imprisonment for each count, to run concurrently, and a five
year term of supervised release. Gomez and Castro (“appellants”)
each filed timely notices of appeal.
II.
The sole issue we must decide in this appeal is whether the
6 district court correctly found that Officer Nettles’ conduct did
not violate the Fourth Amendment. In reviewing a district court's
ruling on a motion to suppress, we review questions of law de novo,
and accept the trial court's factual findings unless they are
clearly erroneous. United States v. Carrillo-Morales, 27 F.3d
1054, 1060-61 (5th Cir. 1994), cert. denied, 513 U.S. 1178 (1995).
We also view the relevant evidence in a light most favorable to the
party that prevailed; in this case, the government. United States
v. Nichols, 142 F.3d 857, 866 (5th Cir. 1998).
In this appeal the appellants contend that Officer Nettles
exceeded the scope of his authority under the Fourth Amendment by
arresting Castro and Vicencio for seat belt violations, and by
later searching the Suburban at the sheriff’s department. The
appellants rest that contention on three separate theories. We
review each in turn.
A.
The appellants first argue that the arrests of Castro and
Vicencio for seat belt violations were unlawful because Texas is a
party to the Nonresident Violator Compact (“NVC”), Tex. Transp.
Code Ann. § 703.002 (Vernon Pamph. 1998). That compact, the
appellants insist, requires a police officer to issue a nonresident
motorist a citation in lieu of arrest on the motorist’s promise to
7 appear.5 The appellants conclude that, because the arrests
violated the NVC, the subsequently discovered cocaine is
inadmissible as “fruit of the poisonous tree.” See Segura v.
United States, 468 U.S. 796, 804 (1984) (observing that
exclusionary rule reaches not only primary evidence obtained as
direct result of illegal search or seizure, but also evidence later
discovered and found to be derivative of illegality, or "fruit of
the poisonous tree"). We note, as an initial matter, that our
consideration of this issue is colored by the fact that the
appellants never raised this issue below. Accordingly, we review
their argument under the plain error standard.
To prevail on a claim raised for the first time on appeal, an
appellant must show (1) the existence of actual error; (2) that the
error was plain; and (3) that it affects substantial rights.
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc), cert. denied, 513 U.S. 1196 (1995). When these elements are
satisfied, a court has the discretion to correct forfeited errors
if they "seriously affect the fairness, integrity, or public
5 The NVC provides in pertinent part:
(a) When issuing a citation for a traffic violation, a police officer shall issue the citation to a motorist who possesses a driver’s license issued by a party jurisdiction and shall not . . . require the motorist to post collateral to secure appearance.
Tex. Transp. Code Ann. § 703.002 (Vernon Pamph. 1998).
8 reputation of judicial proceedings.” United States v. Calverley,
37 F.3d 160, 164 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.
1196 (1995). In Calverley we explained plain error in the
following terms: “[p]lain is synonymous with ‘clear’ or ‘obvious,’
and ‘[a]t a minimum,’ contemplates an error which was ‘clear under
current law’ at the time of trial." Id. at 162-63 (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)). Applying this
stringent standard to the facts of this case, we cannot conclude
that plain error resulted from the district court’s denial of the
motions to suppress.
Though the NVC was adopted by the Texas legislature more than
twenty years ago, there are no published decisions in the Texas
courts, in the federal courts comprising the Fifth Circuit, or in
the other state courts within this Circuit, construing the NVC as
limiting the authority of a state police officer to make an arrest
of a nonresident. The absence of clear law on the NVC existed at
the time of the suppression hearing, and persists now as we decide
this appeal.
In sharp contrast, from the time of the suppression hearing
until present, Texas statutes have expressly allowed police
officers to arrest a person for failure to wear a seat belt.6
6 The Texas Transportation Code provides that "[a] peace officer may arrest without a warrant a person found committing a [traffic] violation." Tex. Transp. Code Ann. § 543.001 (Vernon Pamph. 1998). The Transportation Code allows for only two exceptions to the above rule: speeding and open container
9 Similarly, the Texas courts have recognized that motorists may be
arrested for seat belt violations. See Valencia v. State, 820
S.W.2d 397, 399 (Tex. App.--Houston [14th Dist.] 1991, pet. ref’d)
(holding that passenger of a van was subject to arrest for a seat
belt offense); Madison v. State, 922 S.W.2d 610, 612 (Tex. App.--
Texarkana 1996, pet. ref’d) (stating that a peace officer may
arrest a driver for failure to wear a seat belt).
Thus, even if we assume for the sake of argument that error
resulted with regard to the NVC, it would be impossible to conclude
that any such error was plain at the time of the suppression
hearing. We reject the appellants’ claim that the arrests were
unlawful in light of the NVC.
B.
The appellants next argue that Officer Nettles violated the
Fourth Amendment because the actions he took after stopping the
Suburban exceeded the scope of permissible governmental intrusion
allowed under Terry v. Ohio, 392 U.S. 1 (1968). In particular, the
appellants contend that by arresting Castro and Vicencio, and
seizing the Suburban, Officer Nettles elevated what was otherwise
violations. Tex. Transp. Code Ann. § 543.004(a)(1) (Vernon Pamph. 1998) (stating that an officer shall issue a written notice to appear if the offense charged is speeding or a violation of the open container law). Therefore, a violation of the state seat belt law is not an offense which requires a citation; a motorist can be arrested for the violation. Tex. Transp. Code Ann. § 545.413 (Vernon Pamph. 1998).
10 an ordinary Terry stop into full-blown arrests that required
probable cause. That point is critical to the appellants’ argument
because in their view there was no probable cause supporting the
arrests of Castro and Vicencio.7
It is well established that under the Fourth Amendment a
warrantless arrest must be based on probable cause. United States
v. Shugart, 117 F.3d 838, 846 (5th Cir.), cert. denied, 118 S. Ct.
433 (1997). Probable cause exists when the totality of facts and
circumstances within a police officer's knowledge at the moment of
arrest are sufficient for a reasonable person to conclude that the
suspect had committed, or was in the process of committing, an
offense. Id. (quotations and citations omitted). The presence of
probable cause is a mixed question of fact and law. United States
v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995), cert. denied, 117 S.
Ct. 240 (1996). We will not disturb the factual findings of the
district court absent clear error, although the ultimate
determination of whether there is probable cause for the arrest is
a question of law we review de novo. Id.
In the present case, the district court took testimony from
nearly a dozen witnesses during a suppression hearing that lasted
7 A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional. United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993). In a case like the present, however, in which the officer acted without a warrant, the government bears the ultimate burden of proving that the officer had probable cause. Id.
11 roughly two days. At that hearing Officer Nettles testified that
Castro was not wearing his seat belt when the Suburban passed his
patrol car which was stationed on the highway median. He also
stated that he noticed that Vicencio was not wearing her seat belt
while he was pacing the Suburban. Finally, Officer Nettles
testified that he again observed that Castro and Vicencio were not
wearing their seat belts when he approached the stopped Suburban.
Although the appellants took the stand at the suppression hearing
and contradicted Officer Nettles’ testimony, the district court did
not accept their version of events. In its written memorandum
order the district court found that Officer Nettles’ testimony was
more credible, and found that Castro and Vicencio were in fact not
wearing their seat belts.
Similarly, at the suppression hearing Officer Nettles
testified that from the median he could see that the Suburban was
traveling at a high rate of speed. He further stated that he paced
the Suburban traveling 67 m.p.h. in a 55 m.p.h. zone, and watched
the Suburban pass several vehicles. The appellants contested those
findings by questioning the accuracy of the speedometer in Officer
Nettles’ patrol car, and by testifying that the speedometer in the
Suburban never registered above the legal limit. Faced with this
conflicting testimony, the district court chose to credit Officer
Nettles’ account. In its memorandum order the district court
expressly found that the Suburban was in fact speeding.
To justify a reversal of the district court’s factual
12 findings, the record would need to clearly demonstrate that those
findings were in fact wrong. But as the Supreme Court has
observed, "when a trial judge's finding is based on his decision to
credit the testimony of one of two or more witnesses, each of whom
has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error." Anderson v.
City of Bessemer City, 470 U.S. 564, 575 (1984). Here, the
district court observed the witnesses, weighed conflicting
testimony, and made a determination that Officer Nettles’ version
of events was more credible. On the record of this case we are not
prepared to say that the district court's credibility
determinations and ensuing factual findings were clearly erroneous.
Accordingly, as there is no reasonable basis for challenging
the district court’s findings that the Suburban was speeding, and
that Castro and Vicencio were not wearing their seat belts, we
conclude that Officer Nettles had reasonable suspicion to stop the
Suburban, and probable cause to arrest Castro and Vicencio for
violating the seat belt law. We affirm the district court on this
issue.
We likewise reject the appellants' vague claim that the
impoundment and search of the Suburban exceeded the scope of
permissible intrusion under the Fourth Amendment. As we have
concluded that the Suburban was lawfully stopped, and that Castro
13 and Vicencio were lawfully under arrest, the impoundment of the
Suburban was permissible so long as it was carried out in
furtherance of a community caretaking function. South Dakota v.
Opperman, 428 U.S. 364, 368 (1976); United States v. Ponce, 8 F.3d
989, 996 (5th Cir. 1993). The evidence supports the conclusion
that the Suburban was impounded in accordance with Officer Nettles'
community caretaking function. Following the impoundment, an
inventory search was authorized, was interrupted only temporarily
by the alert of a drug-sniffing dog on the vehicle, and inevitably
would have led to the discovery of the drugs.
C.
The appellants’ final argument relates to the issue of
pretext. Specifically, the appellants contend that their Fourth
Amendment rights were violated because Officer Nettles’ actions
were motivated by his suspicion that the appellants were engaged
in drug trafficking when there was no probable cause to that
effect. Although conceding that under United States v. Whren, 517
U.S. 806 (1996), Officer Nettles’ subjective beliefs have no
bearing on the legality of the initial stop of the Suburban, the
appellants insist that his motives transformed the subsequent
impoundment into an unreasonable seizure under the Fourth
Amendment. Notably, it was on this basis that the panel majority
reversed the district court. See Castro, 129 F.2d at 758 (“We
14 perforce must conclude that taking possession of the Suburban for
purposes of an inventory search was nothing more than a ruse to
perform an unauthorized search”). We now reject that contention.
The thrust of the appellants’ contention is that the
impoundment was unreasonable based on the subjective motives of
Officer Nettles. That argument, however, is intrinsically flawed.
It is well settled that the reasonableness inquiry under the Fourth
Amendment is an objective one, Ohio v. Robinette, 117 S. Ct. 417,
421 (1996), wholly divorced from the subjective beliefs of police
officers. United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.
1987). “[S]o long as police do no more than they are objectively
authorized and legally permitted to do, their motives in doing so
are irrelevant and hence not subject to inquiry.” Id. at 1184.
Accordingly, we reject the appellants’ contention that Officer
Nettles’ hidden motives invalidated what was an otherwise lawful
impoundment carried out in accordance with the standard procedures
of the Polk County Sheriff’s Department.
III.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
15 POLITZ, Circuit Judge, dissenting:
I view the fourth amendment as an invaluable part of the constitutional framework of our
American society. I am persuaded beyond peradventure that the pretextual arrest, vehicle
impoundment, and search in the instant case are constitutionally offensive. The evidence
gathered from the search of the vehicle should be suppressed for the facts as noted and the
reasons set forth in the panel opinion, United States v. Castro, 129 F.3d 752 (5th Cir. 1997).
This case presents the unique situation of an admittedly pretextual stop and arrest,
followed by a pretextual impoundment, to obtain a pretextual inventory search for drugs the
agents suspected were in the vehicle. These agents, state and federal, admittedly did not have
probable cause to make an arrest, and stood by as mere observers when the deputy made the stop
and arrest for the failure to wear seat belts. While each of the actions could be upheld if some
other lawful basis existed, as the majority is quick to note, there must be a point where the
combination of pretext and continuing bad faith cannot be tolerated if the fourth amendment
protections are to have any meaning whatsoever. In my opinion, the facts and circumstances of
this case, viewed clearly and objectively, present just such a situation.
It is my perception that technical distortions and expansion of exclusionary rule
exceptions threaten to make the fourth amendment a hollow shell of its former self. The
treatment accorded by the majority opinion belies the very essence of the fourth amendment.
Accordingly, I must dissent therefrom.
g:\opin\96-40687.ebr g:\opin\96-40687.ebr 17 DENNIS, Circuit Judge, dissenting.
I respectfully dissent from the majority opinion. I agree
fully with the conclusions and sentiments of Judge Politz’s
dissenting opinion. As he points out, this is not a typical
automobile inventory case but a “unique situation of an admittedly
pretextual stop and arrest, followed by a pretextual impoundment,
to obtain a pretextual inventory search for drugs”--“[a]
combination of pretext and continuing bad faith [that] cannot be
tolerated [under] the Fourth Amendment[].” Indeed, the evidence
demonstrates beyond any doubt that from the very beginning it was
the investigatory motive of the Houston Police-DEA-FBI law
enforcement unit to search defendants’ vehicle for illegal drugs
that instigated and orchestrated all of the federal, state and
local law officers’ actions towards the defendants. Toward this
investigatory end, the law enforcement officers in bad faith
attempted to use a pretextual traffic offense arrest, a pretextual
impoundment of the defendants’ vehicle and a pretextual inventory
of the vehicle as a ruse for a warrantless drug search. Because a
bad faith, pretextual automobile inventory does not create any
exception to the warrant requirement, the planned inventory search
in this case would have been unconstitutional had it been carried
out. Therefore, the prophesied inventory can not serve as a “lawful
g:\opin\96-40687.ebr 18 means” by which the drugs could have been discovered under the
ultimate or inevitable discovery exception to the exclusionary
rule. While I join in Judge Politz’s dissenting opinion, I add
this brief opinion to point out specifically how the Supreme
Court’s decisions clearly support our conclusions and indicate that
the panel opinion was correct and should be reinstated and
affirmed.
An ultimate or inevitable discovery exception to the
exclusionary rule was recognized by the Supreme Court in Nix v.
Williams, 467 U.S. 431 (1984). In that case, the evidence
supported a finding that a search party ultimately or inevitably
would have discovered the victim’s body even had the defendant,
whose statement directing police to the site was the result of a
postarrest interrogation in violation of his right to counsel, not
been questioned by the police. The Court succinctly defined the
exception: “If the prosecution can establish by a preponderance of
the evidence that the information ultimately or inevitably would
have been discovered by lawful means--here the volunteers’ search--
then the deterrence rationale has so little basis that the evidence
should be received.” Id. at 444 (emphasis added). Accordingly, in
the present case the prosecution, in order to avail itself of the
inevitable discovery exception, would have had to establish by a
preponderance of the evidence that the drugs in the defendant’s
vehicle would have been ultimately or inevitably discovered by the
lawful means of a lawful inventory had the police not conducted an
g:\opin\96-40687.ebr 19 unconstitutional warrantless search in the absence of exigent
circumstances.8
The inventory of the defendants’ vehicle that the majority
opinion hypothesizes that officer Nettles would have conducted (had
the unlawful warrantless drug dog assisted search not occurred)
would not have been a lawful means of discovery because it would
have been a bad faith, pretextual inventory. It is true that the
Supreme Court has “never held, outside the context of inventory
search or administrative inspection..., that an officer’s motive
invalidates objectively justifiable behavior under the Fourth
Amendment[.]” Whren v. United States, 517 U.S. 806, 812 (1996).
But the Court has repeatedly indicated for discerning readers that
improper ulterior motives will invalidate police conduct in the
context of inventory searches. In Whren, id. at 811, the Court
acknowledged that in Florida v. Wells, 495 U.S. 1, 4 (1990), it
stated that “an inventory search must not be used as a ruse for a
general rummaging in order to discover incriminating evidence”;
that in Colorado v. Bertine, 479 U.S. 367, 372 (1987), in approving
8 Because the officers did not have probable cause to search the defendants’ vehicle for drugs at the time of the arrest, the fact that such probable cause arose after the vehicle was removed from the highway and impounded did not on its own, in the absence of demonstrated exigent circumstances, provide a constitutional basis for a search of the vehicle without a search warrant. See Chambers v. Maroney, 399 U.S. 42, 51 (1970) (“Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.” Id. at 51, citing Carroll v. United States, 267 U.S. 132, 153 (1925)). Accordingly, that theory cannot be used to support the judgment herein.
g:\opin\96-40687.ebr 20 an inventory search, the Court thought it significant that there
had been “no showing that the police, who were following standard
procedures, acted in bad faith or for the sole purpose of
investigation”; and that in New York v. Burger, 482 U.S. 691, 716-
717, n. 27 (1987) the Court observed, in upholding the
constitutionality of a warrantless administrative inspection, that
the search did not appear to be “a ‘pretext’ for obtaining evidence
of...violation of...penal laws.” Significantly, the Supreme Court
in South Dakota v. Opperman, 428 U.S. 364, 376 (1976), setting
forth the high court’s first full articulation of the inventory
exception, in approving an inventory after impoundment of a car
left illegally parked for an extended period, expressed the
following caveat: “[T]here is no suggestion whatever that this
standard procedure, essentially like that followed throughout the
country, was a pretext concealing an investigatory police motive.”
(Footnotes omitted).
The evidence overwhelmingly demonstrates that everything the
police did in the present case was a pretext or ruse that was meant
to conceal the Houston-DEA-FBI unit’s investigatory police motive
and actions to search the defendants’ vehicle for evidence of
suspected illegal drug activity. The district court either
committed an error of law by assuming that the police officers’ bad
faith, pretextual motives and pretextual conduct cannot invalidate
an inventory search under the Fourth Amendment or made clearly
erroneous factual findings by ignoring the clear and convincing
g:\opin\96-40687.ebr 21 proof of such ulterior motives and bad faith conduct. Because the
majority has repeated the same constitutional errors, I
respectfully dissent.
g:\opin\96-40687.ebr 22