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 296th 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 the center console of his car after he was
stopped by police and his car was impounded and searched. 1 Defendant
1SeeTex. Health & Safety Code Ann. § 481.115(d). Austin filed his
appeal in the Fifth Court of Appeals, but in April 2020, the Texas
Supreme Court signed a docket-equalization order and transferred the
1
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 appealed. 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 the purported inventory search police performed on
his car was conducted in bad faith. 2 Concluding Austin’s argument lacks
merit, we will affirm.
Background
In 2018, a grand jury indicted Austin for possessing between four
and two hundred grams of meth. 3 Austin’s indictment 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. § 73.001.
2See U.S. CONST. amend. IV; Tex. Const. art. I, § 9.
3See Tex. Health & Safety Code Ann. § 481.115(d).
4See Tex. Transp. Code Ann. §§ 502.040(a), 502.407(a), 601.051.
2
Police Department’s “Vehicle Impounds” General Order (“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 contents, he discovered a baggie of meth
inside. 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 authorizing police to search or seize evidence, which violated his
statutory and constitutional rights. Six weeks after Austin filed the
motion to suppress, Austin filed a brief to support his motion, claiming
the officers who performed the inventory search of his car failed to
conduct the search in good faith under the written policies, adopted by
the City of Allen, applicable to vehicles impounded by police. In his brief,
Austin claimed the officers who performed the inventory search of his car
5The officer
who stopped Austin and arrested him did not testify in
the hearing on Austin’s motion.
3
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 testified, the officer who performed the inventory search on
Austin’s car. During the hearing, the officer introduced himself as
“Officer Hein with [the] Allen Police Department.” 6 When questioned by
the prosecutor, Officer Hein testified he was in training and accompanied
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 described what he does when
performing an inventory search. He stated: “Basically, we look anywhere
that valuables could be contained.”
6Nothing in the reporter’s record or clerk’s record identifies Officer
Hein by his first name, so we refer to him the opinion as Officer Hein.
4
A copy of the City of Allen Police Department’s Impounds Order,
call it the Impounds Order, contains the policies applicable to vehicles
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 “inventory 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 details of Officer Hein’s inventory of Austin’s car,
the prosecutor asked Officer Hein whether the City of Allen has “an
inventory policy in place.” Officer Hein confirmed the City did have an
inventory policy 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.
7The Impounds Order was admitted without objection.
5
Even though Austin’s attorney’s cross-examined Officer Hein, we
find nothing in Officer Hein’s testimony showing that he failed to follow
the written policy as that policy is described in the Impounds Order
regarding the manner of the inventory search occurred. The 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 the 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 these three findings orally on the record in the
hearing:
• “[T]he Allen Police Department did have a valid 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[.]”
6
This appeal followed.
Standard of Review
To 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 search’s “scope and manner of execution.” 12
8Amador 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).
9Amador, 221 S.W.3d at 672.
10Id. 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).
11Samson v. California, 547 U.S. 843, 855 n.4 (2006).
12Maryland v. King, 569 U.S. 435, 448 (2013).
7
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 those 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 [even] when that determination is based on a videotape
recording admitted into evidence at a suppression hearing.” 16
13Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018).
14State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019)
(cleaned up).
15See 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).
16State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013)
(cleaned up).
8
Analysis
The Fourth Amendment to the United States Constitution and
article 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 requiring police to obtain
a warrant before searching 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 impounding a car, are potentially responsible for its contents.20
Consequently, when authorized through a written policy identifying
17U.S. CONST. amend. IV; Tex. Const. art. I, § 9; Johnson v. State,
912 S.W.2d 227, 232 (Tex. Crim. App. 1995) (explaining article I, section
9 offers no protections substantively different from those afforded by the
Fourth Amendment).
18United States v. Ross, 456 U.S. 798, 825 (1982) (citations omitted).
19Colorado v. Bertine, 479 U.S. 367 (1987); South Dakota v.
Opperman, 428 U.S. 364 (1976).
20See Bertine, 479 U.S. at 372; Opperman, 428 U.S. at 370.
9
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 police, 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
21Bertine, 479 U.S. at 380.
22Florida v. Wells, 495 U.S. 1, 4 (1990) (cleaned up).
23Id.
24Vargasv. 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)
10
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 Police 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
DeWalt® 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 According 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”).
25To be fair, Austin argues these twenty-two items, which he listed,
were only “illustrative of the problem[,]” 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.
11
because the evidence shows he was arrested on a minor traffic infraction
and Officer Hein failed to follow the Department’s written Impounds
Order when searching his 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
Impounds Order.
To support his claim the trial court’s ruling should 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 impounded 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 testified 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
26Cox v. State, 2015 Tex. App. LEXIS 3217, at *2 (Tex. App.—Dallas
Apr. 1, 2015, no pet.).
12
form. 27 Yet the inventory form the officer filled out listed only two general
categories of property without a description, and a videorecording from
the officer’s body camera showed the truck contained many items that
were not documented 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 evaluating what the police
department’s policy required. 29
Here, the evidence before the trial court includes the written policy
of the Allen Police Department. It describes the standardized procedures
Officer Hein follows in performing inventory searches. The Department’s
Impounds Order doesn’t require the City’s officer to document everything
of value on the inventory form, as Austin claims. The Vehicle Impounds
form, which Hein filled out, does not require that everything in the car
be document either. Simply put, with the exception of animals and
27Id. at *5.
28Id. 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.”).
29Id. at *5.
13
property that an officer removes 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 Under 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
has a written policy stating what the Department’s officers are supposed
to do when inventorying the contents of car impounded by police. So the
appeal hinges on two things: (1) Does the Impounds Order require Officer
Hein to itemize “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 performed 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
30SeeCox, 2015 Tex. App. LEXIS 3217.
31Tex. R. App. P. 47.4(a).
14
claims. Instead, Austin misquotes the sentence in the Department
Impounds Order to make it fit the argument 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:
The 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 disposing 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 any 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 and
15
protect the property’s safety. 32 Moreover, the section set out the policy,
and is not the section that specifically instructs officers about what they
are to do in performing an inventory on a vehicle. Those instructions are
found in another 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 Responsibilities” of the
Department’s officers. That 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 vehicle,
ensure they are properly maintained, tagged, and placed in
property/evidence storage.
3. Ensure non-motor vehicle items are documented on proper
forms.
4. Do not leave the scene until the wrecker has secured the
vehicle and is ready to leave unless the officer directs a
Citizen on Patrol (COP) or a Public Safety Officer (PSO) to
remain at the location.
In Addition to Section III, section VI B of the Impounds Order describes
that if an item is removed from a vehicle for safekeeping, such as money
32See W EBSTER’S THIRD N EW INTERNATIONAL DICTIONARY 1998 (2002).
16
or jewelry, the item must be listed in the space labeled “Items Removed
from Vehicle Prior to Inventory” on the Vehicle Impound Report (APD-
189). That page is not part of Exhibit 3, and no one asked if Officer Hein
removed any 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 Department’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, the trial court could have reasonably concluded 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 filling
17
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 left
items of value off the Impound Report 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 the Impounds Order authorizes City of Allen
police officers to open closed containers when inventorying cars. The
Impounds Order, Section IV A 3, states: “The inventory shall include the
18
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 Impounds 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 crime. 33
We conclude the trial court’s findings—that the Allen Police
Department has a valid policy 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
33See Bertine, 479 U.S. at 375.
19
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 January 4, 2022
Opinion Delivered September 28, 2022
Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.
34See id. at 372.
20