United States v. Jonathan Anderson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50345

Plaintiff-Appellee, D.C. No.
5:20-cr-00071-
v. RGK-1

JONATHAN EDWARD CHARLES
ANDERSON, AKA Johnathan OPINION
Anderson, AKA Johnathan Edward
Anderson, AKA Jonathan Charles
Anderson, AKA Jonathan Edward
Anderson, AKA Jonathan Edward Cha
Anderson, AKA Jonathon Edward
Anderson, AKA X Rage,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Argued and Submitted En Banc September 21, 2023
San Francisco, California

Filed May 2, 2024
2 USA V. ANDERSON

Before: Mary H. Murguia, Chief Judge, and Consuelo M.
Callahan, Sandra S. Ikuta, Morgan Christen, John B.
Owens, Daniel A. Bress, Danielle J. Forrest, Lawrence
VanDyke, Gabriel P. Sanchez, Salvador Mendoza, Jr. and
Roopali H. Desai, Circuit Judges.

Opinion by Judge Forrest;
Concurrence by Judge Mendoza, Jr.;
Dissent by Judge Bress

SUMMARY*

Criminal Law

The en banc court reversed the district court’s denial of
a motion to suppress a firearm found during a warrantless
search of the defendant’s truck in a case that presented the
question whether an officer’s failure to comply with
governing administrative procedures is relevant in assessing
the officer’s motivation for conducting an inventory search.
The primary question was whether the deputies’
deviation from the governing inventory procedure indicates
that they acted in bad faith or solely for investigative
purposes. The en banc court held that an officer’s
compliance (or as is the case here, non-compliance) with
department policy governing inventory searches is part of
the totality of circumstances properly considered in

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 USA V. ANDERSON 3

determining whether a search satisfies the requirements of
the inventory-search exception to the warrant requirement.
Based on the circumstances presented here, the en banc
court concluded that the deputies who searched the
defendant’s truck acted solely for investigatory reasons, and
that the warrantless search therefore violated the Fourth
Amendment.
Concurring, Judge Mendoza agreed with the majority’s
finding that the deputies’ inventory search violated the
Fourth Amendment. Writing separately to address an issue
not reached by the majority, Judge Mendoza would reverse
the district court’s decision on the additional ground that the
deputies lacked a valid community caretaking justification
to impound the truck.
Dissenting, Judge Bress, joined by Judges Callahan,
Ikuta, Owens, and VanDyke, wrote that the majority distorts
the legal framework for inventory searches, contravenes
decades of Supreme Court and circuit precedent, and turns
hairsplitting distinctions into constitutional rules. Judge
Bress wrote that although under settled law the validity of an
inventory search depends on whether officers acted in bad
faith or for the sole purpose of investigation, the majority
instead holds that officers violated the Constitution because
they did not follow the court’s hyper-technical rules for
filling out forms—which the deputies here had to do in the
middle of the night after lawfully stopping a career criminal.
4 USA V. ANDERSON

COUNSEL

David R. Friedman (argued) and Elana S. Artson, Assistant
United States Attorneys; Byron R. Tuyay, Assistant United
States Attorney, Riverside Branch Office; Bram M. Alden,
Assistant United States Attorney, Criminal Appeals Section
Chief; Tracy L. Wilkison, Acting United States Attorney;
United States Department of Justice, Office of the United
States Attorney, Los Angeles, California; for Plaintiff-
Appellee.
Ashwini S. Mate (argued), Deputy Federal Public Defender;
Cuauhtemoc Ortega, Federal Public Defender; Federal
Public Defender’s Office, Los Angeles, California; for
Defendant-Appellant.

OPINION

FORREST, Circuit Judge:

Law enforcement may conduct warrantless inventory
searches of impounded vehicles. But the Supreme Court has
instructed that inventory searches are reasonable under the
Fourth Amendment only if they are motivated by
administrative purposes, and not solely by investigatory
purposes. The question here is whether an officer’s failure to
comply with governing administrative procedures is relevant
in assessing the officer’s motivation for conducting an
inventory search. The answer is yes. An officer’s compliance
(or as is the case here, non-compliance) with department
policy governing inventory searches is part of the totality of
circumstances properly considered in determining whether a
 USA V. ANDERSON 5

search satisfies the requirements of the inventory-search
exception to the warrant requirement. And based on the
circumstances presented here, we conclude that the deputies
who searched Defendant Jonathan Anderson’s truck acted
solely for investigatory reasons. Therefore, we reverse the
district court’s denial of his motion to suppress.
I. BACKGROUND
At two o’clock in the morning, a San Bernardino County
Sheriff’s Department (SBCSD) deputy noticed Anderson’s
truck traveling in a high-crime area with a partially
obstructed license plate in violation of California Vehicle
Code § 5201. The deputy turned on his overhead lights to
initiate a traffic stop, but Anderson accelerated and made a
series of abrupt turns ending up on a dead-end street. The
deputy called for backup, and Anderson ultimately pulled
into a residential driveway and got out of his truck less than
a minute into the encounter. Believing that Anderson was
trying to flee, the deputy confronted him at gunpoint. Soon
after, a second deputy arrived and handcuffed Anderson.
Anderson said that he was parked in “a friend[’s]” driveway
and that his driver’s license was expired. Dispatch confirmed
that Anderson’s license was expired and informed the
deputies that Anderson was a career criminal. The deputies
remarked that Anderson had a lot of money in his wallet and
questioned why he had gloves and why his truck was wet.
Anderson repeatedly told the deputies that they could not
search his truck. But the deputies responded that they had to
tow and inventory his truck because he did not have a valid
license. The parties agree on appeal that the owner of the
home where Anderson parked did not know Anderson and
wanted the truck removed. They dispute, however, whether
the deputies knew this before they searched Anderson’s
6 USA V. ANDERSON

truck. According to Anderson, the first deputy began
searching within seconds of learning Anderson’s criminal
history and then spoke with the homeowner after the search.
The deputies claim they confirmed that the homeowner did
not know Anderson before the search began. The parties
agree that the deputies refused Anderson’s request to have a
friend come retrieve his truck.
During the purported inventory search, a loaded handgun
under Anderson’s driver’s seat was found, and the deputies
arrested Anderson for being a felon in possession of a
firearm. The record indicates that between three and seven
minutes elapsed from when the first deputy initiated the stop
to when the gun was found.
The SBCSD has a standard procedure governing
impounding and inventorying vehicles. The SBCSD Manual
directs that deputies “shall[] [c]omplete two (2) CHP 180
forms . . . , including an inventory of any personal property
contained within the vehicle.” (Emphasis added.) The form
requires deputies to record details about the ownership of the
vehicle, the condition of the vehicle, and the towing
company used. It also has a separate section entitled:
“REMARKS (list property, tools, vehicle damage, arrests).”
The second deputy stayed at the scene to complete the
CHP 180 Form after the first deputy transported Anderson
to jail. The second deputy detailed the condition of the truck,
including, for example, that it had front and rear seats, an
ignition key, and a battery and that the tires were “worn.” He
also noted the registered owner and the towing company. But
even though various items of personal property in addition
 USA V. ANDERSON 7

to the gun was contained in the truck, the “REMARKS”
section of the form stated only:

Veh pulled over for obstructed plate. Driver
found to have expired CDL. Upon inventory
search firearm located. Driver is convicted
felon. Veh pulled into driveway to res. Owner
of res. doesn’t know driver[.] Veh has misc.
scratches & dents 360°, damage to pass. door
and tailgate.

(Emphasis added.) Nowhere did the deputy list Anderson’s
other personal property that included: (1) two pairs of Ray-
Ban sunglasses, (2) an iPhone cord, (3) an Android phone
charger, (4) a bottle of cologne, (5) a watch, (6) an audio
speaker, and (7) tools. The deputy took photographs of the
inside of the truck that showed some of Anderson’s personal
property, and the police report documented that a compact
disc, gun, holster, and ammunition were found in the truck.
But neither the photographs nor the police report was
referenced or incorporated into the vehicle inventory form.
And as the second deputy acknowledged, SBCSD’s
procedure does not allow personal property to be inventoried
by photographs.
Anderson was charged with one count of unlawful
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). He moved to suppress the firearm and
ammunition, arguing that the inventory search was
unconstitutional because (1) the deputies lacked a valid
“community caretaking purpose” when they searched his
truck, (2) the impoundment violated California law, and
(3) the deputies violated SBCSD’s inventory procedures and
8 USA V. ANDERSON

had an impermissible investigatory motive for conducting
the search.
The district court heard testimony from the deputies and
the homeowner and denied Anderson’s motion. It found that
Anderson did not have a valid driver’s license and that the
homeowner did not know Anderson or want Anderson’s
truck on his property. In assessing whether the deputies had
a valid community caretaking purpose, the district court
focused on “whether or not [the deputies] searched the car
before or after they talked to the homeowner” and learned
that he did not know Anderson. The district court noted that
“there[] [were] a lot of discrepancies and inconsistencies in
the testimony,” but based on “credibility and looking at what
[was] speculative and what [was] the evidence,” it found that
the record established the deputies did “talk to the
homeowner before they searched the car.”1 The district court
concluded that the search was reasonable without addressing
whether the deputies complied with California law or
SBCSD’s inventory procedure or whether they had an
impermissible motive for the search.
Anderson entered a conditional guilty plea reserving his
right to appeal the suppression order, and the district court
sentenced him to 77 months’ imprisonment and three years’
supervised release.

1
The district court noted that even if the deputies did not talk to the
homeowner first, the doctrine of inevitable discovery “may play a part in
this.” The Government does not rely on this doctrine on appeal, nor did
it below. Therefore, because “[i]t is the government’s burden to show
inevitable discovery, . . . its failure to make the argument prevents us
from upholding the denial of the suppression motion on that theory.”
United States v. Ngumezi, 980 F.3d 1285, 1291 (9th Cir. 2020).
 USA V. ANDERSON 9

II. STANDARD OF REVIEW
We review a district court’s denial of a motion to
suppress de novo and its related factual findings for clear
error. United States v. Fisher, 56 F.4th 673, 682 (9th Cir.
2022). We reverse a district court’s factual findings that are
“illogical, implausible, or without support in inferences that
may be drawn from the record.” Ashker v. Newsom, 81 F.4th
863, 878 (9th Cir. 2023) (quoting Capistrano Unified Sch.
Dist. v. S.W., 21 F.4th 1125, 1133 (9th Cir. 2021)). Where,
as here, the district court does not make specific findings on
a “factual issue relevant to the Fourth Amendment analysis,
we ‘uphold a trial court’s denial of a motion to suppress if
there was a reasonable view to support it.’” United States v.
Magdirila, 962 F.3d 1152, 1156 (9th Cir. 2020) (quoting
United States v. Gooch, 506 F.3d 1156, 1158 (9th Cir.
2007)).
III. INVENTORY-SEARCH EXCEPTION
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. This protection was “crafted . . . as a
‘response to the reviled “general warrants” and “writs of
assistance” of the colonial era, which allowed British
officers to rummage through homes in an unrestrained
search for evidence of criminal activity.’” Carpenter v.
United States, 138 S. Ct. 2206, 2213 (2018) (quoting Riley
v. California, 573 U.S. 373, 403 (2014)). “[T]he ultimate
touchstone of the Fourth Amendment is ‘reasonableness.’”
Lange v. California, 141 S. Ct. 2011, 2017 (2021) (quoting
Brigham City v. Stuart, 547 U.S. 398, 403 (2006)); see also
Camara v. Mun. Ct. of City & County of S.F., 387 U.S. 523,
539 (1967). To meet this standard, law enforcement must
10 USA V. ANDERSON

generally obtain a warrant based on probable cause before
conducting a search. See Mitchell v. Wisconsin, 139 S. Ct.
2525, 2534 (2019). “But not always: The ‘warrant
requirement is subject to certain exceptions.’” Lange, 141 S.
Ct. at 2017 (quoting Stuart, 547 U.S. at 403).
Vehicles are commonly impounded as part of law
enforcement’s “community caretaking functions.” South
Dakota v. Opperman, 428 U.S. 364, 368 (1976) (quoting
Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). “The
authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and
convenience is beyond challenge.” Id. at 369. Inventory
searches of impounded vehicles is a “well-defined exception
to the warrant requirement of the Fourth Amendment.”
Colorado v. Bertine, 479 U.S. 367, 371 (1987). The reasons
why the Supreme Court created this exception are borne out
in the history leading to its recognition.
Development of the inventory-search exception began
with the Supreme Court’s observation that “[c]ommon sense
dictates . . . that questions involving searches of motorcars
or other things readily moved cannot be treated as identical
to questions arising out of searches of fixed structures like
houses.” Preston v. United States, 376 U.S. 364, 366 (1964).
In Preston, the defendant and two associates were arrested
for vagrancy. Id. at 365. Their car was “towed to a garage”
where officers searched it and found evidence of criminal
activity. Id. at 365–66. In his subsequent bank-robbery
prosecution, the defendant sought to suppress the evidence
found in the car. Id. at 366. The government argued that the
search was reasonable for investigative purposes—either as
a search incident to a lawful arrest or a search based on
probable cause that the car was stolen. Id. at 367–68. The
Court rejected both arguments. Regarding search incident to
 USA V. ANDERSON 11

arrest, the Court explained that where the suspects had been
taken into custody and the car was in police custody, there
was neither danger that the suspects could use any weapons
or destroy any evidence located in the car, nor that the car or
its contents would be lost to law enforcement. Id.
A few years later, the Supreme Court recognized that law
enforcement could search an impounded car without a
warrant to protect the police. Cooper v. California, 386 U.S.
58, 61–62 (1967). In Cooper, the defendant was arrested for
selling heroin and his car was impounded under a California
law that required all vehicles used in narcotics trafficking to
be seized pending forfeiture proceedings. Id. at 58, 60. The
car was searched a week after the defendant’s arrest, and
evidence was found in the glove box. Id. at 58. California
conceded that the search was not conducted incident to arrest
but argued it was nonetheless reasonable. Id. at 60. The
Court noted that, unlike in Preston, the impoundment in
Cooper was related to the defendant’s drug charge. Id. at 61.
And it instructed that while “lawful custody of an
automobile does not of itself dispense with constitutional
requirements of searches thereafter made of it, the reason for
and nature of the custody may constitutionally justify the
search.” Id. (internal quotation marks and citation omitted).
The Court further concluded that “[i]t would be
unreasonable to hold that the police, having to retain the car
in their custody [pending forfeiture proceedings], had no
right, even for their own protection, to search it.” Id. at 61–
62.
Next, in Harris v. United States, the Court upheld a
warrantless vehicle search conducted under a department
policy that sought to protect personal property located in
impounded vehicles. 390 U.S. 234, 236 (1968). There, the
defendant’s car was traced after it was seen leaving the scene
12 USA V. ANDERSON

of a robbery. Id. at 235. The defendant was arrested as he
was getting in the car, and the car was impounded and towed
to the police station with its windows open and doors
unlocked. Id. Department procedure required officers to
search impounded vehicles “thoroughly,” “remove all
valuables,” and prepare a “property tag” and place it in the
vehicle. Id. The arresting officer conducted the required
search and secured the vehicle’s windows and doors after it
started to rain. Id. While securing the vehicle, the officer
discovered evidence related to the robbery victim. Id. The
Court upheld the search because “the discovery of the
[evidence] was . . . the result of a . . . measure taken to protect
the car while it was in police custody.” Id. at 236.
The Court recognized a third administrative justification
for inventorying impounded cars—concern for public safety.
Cady, 413 U.S. at 447–48. In Cady, officers arrested the
defendant for drunk driving after he wrecked his car. Id. at
435–36. The defendant told the officers that he was a
Chicago police officer, and the officers believed that
Chicago police were required to carry their service revolver
at all times. Id. at 436. They looked for the defendant’s
revolver on his person and in the front seat and glove
compartment of the car but did not find it. Id. The car was
towed to a private, unguarded garage and parked outside. Id.
Following department “standard procedure,” an officer went
to the garage where the defendant’s car was towed to search
for the service revolver, and he discovered evidence
implicating the defendant in a murder. Id. at 436–38. Tying
this case to Harris and Cooper, the Court again upheld the
warrantless search:

In Harris the justification for the initial
intrusion into the vehicle was to safeguard the
 USA V. ANDERSON 13

owner’s property, and in Cooper it was to
guarantee the safety of the custodians. Here
the the [sic] justification, while different, was
as immediate and constitutionally reasonable
as those in Harris and Cooper: concern for
the safety of the general public who might be
endangered if an intruder removed a revolver
from the trunk of the vehicle.

Id. at 447.
The Supreme Court brought all the justifications for
inventorying impounded vehicles together in Opperman.
428 U.S. at 368–70. There, the defendant violated a city
parking ordinance, and police impounded and towed his car
when he was not present. Id. at 365–66. Seeing a watch on
the dashboard and other personal property inside the car, an
officer followed standard procedures and inventoried the
property in the car, including the glovebox that contained
marijuana. Id. at 366. When the defendant attempted to
retrieve his car, he was arrested on drug charges. See id. The
Court upheld the search, explaining: “In applying the
reasonableness standard adopted by the Framers, this Court
has consistently sustained police intrusions into automobiles
impounded or otherwise in lawful police custody where the
process is aimed at securing or protecting the car and its
contents.” Id. at 373 (emphasis added). The Court further
explained that the practice of inventorying the contents of
impounded vehicles “developed in response to three distinct
needs: [1] the protection of the owner’s property while it
remains in police custody, [2] the protection of the police
against claims or disputes over lost or stolen property, and
[3] the protection of the police from potential danger.” Id. at
369 (citations omitted). And the circumstances in Cooper,
14 USA V. ANDERSON

Harris, Cady, and Opperman make clear that the searches
the officers conducted in those cases were in service of the
recognized administrative justifications for warrantless
inventory searches. See Illinois v. Lafayette, 462 U.S. 640,
644 (1983) (“A so-called inventory search is not an
independent legal concept but rather an incidental
administrative step.”).
A standard inventory procedure goes a long way in
determining the reasonableness of a search. Florida v. Wells,
495 U.S. 1, 3–4 (1990). But the Supreme Court has been
clear that not just any policy or practice will do. A proper
“policy or practice governing inventory searches should be
designed to produce an inventory,” and if the policy or
practice gives officers the ability to exercise discretion, the
Fourth Amendment requires that the exercise of such
discretion be “based on concerns related to the purposes of
an inventory search.” Id. at 4–5 (emphasis added). It
naturally follows then that the existence of an inventory
policy or practice is not itself sufficient to justify applying
the inventory-search exception. Officers relying on a
standard procedure to justify a search must not “act[] in bad
faith or for the sole purpose of investigation.” Bertine, 479
U.S. at 372; see also United States v. Johnson, 889 F.3d
1120, 1125 (9th Cir. 2018) (“[T]he purpose of the
[inventory] search must be non-investigative; it must be
‘conducted on the basis of something other than suspicion of
evidence of criminal activity.’” (quoting United States v.
Torres, 828 F.3d 1113, 1118 (9th Cir. 2016))). This is the
rare context where the Fourth Amendment analysis is not
purely objective—subjective motivations are material. See
Kentucky v. King, 563 U.S. 452, 464 (2011) (“[W]e have
never held, outside limited contexts such as an ‘inventory
search or administrative inspection . . . , that an officer’s
 USA V. ANDERSON 15

motive invalidates objectively justifiable behavior under the
Fourth Amendment.’” (quoting Whren v. United States, 517
U.S. 806, 812 (1996))); Johnson, 889 F.3d at 1125
(recognizing that “actual motivations do matter” in the
inventory search context (citation omitted)). Plainly stated,
“the exemption from the need for probable cause (and
warrant), which is accorded to searches made for the purpose
of inventory or administrative regulation, is not accorded to
searches that are not made for those purposes.” Whren, 517
U.S. at 811–12 (emphasis added).
IV. DISCUSSION
The parties presented two questions relevant to the
search of Anderson’s truck: (1) whether the deputies had a
valid community-caretaking reason for impounding the
truck, and (2) whether the inventory search was reasonable
under the Fourth Amendment. We do not address the first
question because we conclude that the Government did not
meet its burden to show that the deputies conducted an
inventory search.
It is the government’s burden to prove that the Fourth
Amendment is satisfied and the criteria for the inventory-
search exception are met. See Arkansas v. Sanders, 442 U.S.
753, 759–60 (1979), abrogated on other grounds by
California v. Acevedo, 500 U.S. 565 (1991) (“[T]he few
situations in which a search may be conducted in the absence
of a warrant have been carefully delineated and the burden
is on those seeking the exemption to show the need for it.”
(internal quotation marks and citation omitted)); see also
Torres, 828 F.3d at 1118 (“The government bears the burden
of establishing that a vehicle’s impoundment and search are
justified under an exception to the warrant requirement.”).
Anderson argues that the inventory search of his truck was
16 USA V. ANDERSON

invalid because the deputies’ failure to create an inventory
of his personal property, as required under SBCSD policy,
evidences that they searched his truck for purely
investigative reasons, not administrative reasons. Where a
defendant challenges law enforcement’s motivations for
conducting an inventory search, the defendant must point to
“objective evidence to suggest that the intrusion was not
made for the purpose of enforcing the administrative
inspection scheme.” Johnson, 889 F.3d at 1126 (citation
omitted). This production requirement does not, however,
shift the ultimate burden of proof regarding application of
the inventory-search exception to the defendant. Instead,
when a defendant produces objective evidence of pretext, the
court must assess the officers’ subjective intent to determine
whether the requirements of the inventory-search exception
are met. Id.
A.
The primary question is whether the deputies’ deviation
from the governing inventory procedure indicates that they
acted in bad faith or solely for investigative purposes. The
parties agree that SBCSD had a standard procedure for
inventorying impounded vehicles. Anderson does not
challenge the validity of this procedure per se. Rather, he
argues that the deputies failed to follow the procedure to
such a degree that they did not “produce an inventory” and,
therefore, are not entitled to rely on the inventory-search
exception. Wells, 495 U.S. at 4. The Government, on the
other hand, argues that the deputies substantially complied
with SBCSD’s standard procedure, relying on our precedent
upholding imperfect inventories. The Government also
argues that “something more” than administrative error is
necessary to prove that the deputies relied on the inventory-
search exception as a pretext.
 USA V. ANDERSON 17

As explained, the inventory-search exception applies
“where the process is aimed at securing or protecting the car
and its contents.” Opperman, 428 U.S. at 373. “[A]n
inventory search must not be a ruse for a general rummaging
in order to discover incriminating evidence.” Wells, 495 U.S.
at 4. And because an officer’s subjective motivations have
constitutional significance in this context, an officer’s degree
of compliance with the governing procedure is relevant in
determining whether the officer acted in furtherance of
administrative purposes or solely for investigatory purposes
under the guise of conducting an inventory. The Supreme
Court has explained that whether an officer conducts an
inventory search “in accordance with standard procedures
in the local police department . . . [is] a factor tending to
ensure that the intrusion would be limited in scope to the
extent necessary to carry out the caretaking function.”
Opperman, 428 U.S. at 375; see also United States v. Garay,
938 F.3d 1108, 1111 (9th Cir. 2019) (explaining that
department “policies . . . assist courts to determine whether
an inventory search is legitimate, as opposed to pretextual”).
This is a matter of common sense. But it is not just the
existence of a standard procedure, but also its application,
that informs an officer’s motives. It matters not that there is
a standard procedure that cabins an officer’s discretion if it
is not followed.
Of course, inventory procedures need not “be conducted
in a totally mechanical ‘all or nothing’ fashion.” Wells, 495
U.S. at 4. An officer may exercise reasonable discretion in
conducting inventory searches so long as such discretion is
“exercised according to standard criteria” that serve the
administrative goals of inventory searches, rather than solely
to search for evidence. Id. (quoting Bertine, 479 U.S. at 375);
Torres, 828 F.3d at 1120 (same). And perfect compliance
18 USA V. ANDERSON

with standard criteria is not required. We previously have
held that “minor noncompliance with department policies
does not invalidate an otherwise lawful inventory search.”
Magdirila, 962 F.3d at 1157. But there is a limit to how far
an officer can stray from a standard procedure that is adopted
to serve the recognized administrative purposes underlying
the inventory-search exception and still justify the search as
a good-faith, administrative action. Id. The circumstances of
this case force us to wrestle with the established principle
that an inventory search that “materially deviate[s] from
department policy can be invalid.” Id.
It cannot be forgotten that the “purpose of [an inventory]
search is to ‘produce an inventory’ of the items in the car, in
order ‘to protect an 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
danger.’” Johnson, 889 F.3d at 1125 (emphasis added)
(quoting Wells, 495 U.S. at 4). An officer’s failure to create
an inventory can, but may not always, suggest that
something else drove the search. Id. at 1127–28. In the
Fourth Amendment context, the facts matter. See, e.g.,
Lange, 141 S. Ct. at 2018 (considering the totality of the
circumstances when analyzing a warrantless intrusion). And
our prior decisions upholding imperfect inventories are
distinguishable from this case.
In Garay, the defendant led law-enforcement officers on
a high-speed chase that ended when he crashed in a ditch.
938 F.3d at 1110. Before towing the defendant’s totaled
vehicle, the officers conducted an inventory search and
found two loaded firearms, ammunition, and cell phones that
they removed and booked into evidence. Id. Although the
applicable inventory procedure required the officers to list
the property found in the car on an inventory form, id. at
 USA V. ANDERSON 19

1111, they listed only the firearms, id. at 1110–11. But the
officers noted on the form “that items of potential value were
in the car before identifying and booking the items recovered
from the car as ‘evidence/property.’” Id. at 1112. The
defendant challenged the inventory search because the
officers failed to provide a complete property list, as required
by their department procedure. Id. at 1111.
We disagreed, concluding that the officers had complied
with the department procedure “in material respects.” Id. at
1112. Where “the site was in effect a crime scene, the items
in the car were sensibly treated as evidence.” Id. at 1111–12.
And we noted that the purposes of the inventory-search
exception were served because “remov[ing] and
safeguard[ing]” the contents of an impounded vehicle “is the
essence of an inventory search.” Id. at 1111. Because the
officers recorded the required information about the tow,
obtained an inventory file number, and “checked a box on
the relevant inventory form indicating that items of potential
value were in the car before identifying and booking the
items recovered from the car as ‘evidence/property,’” we
concluded that the failure to prepare a complete list of the
defendant’s property on the inventory form “[wa]s not, on
its own, a material deviation from policy.” Id. at 1112.
Similarly, in Magdirila, officers impounded and
searched a vehicle after the defendant admitted that he did
not have a driver’s license. 962 F.3d at 1154–55. The
relevant department inventory procedure required officers to
make an “accurate” inventory of the vehicle’s contents on an
inventory form, to list “[a]ll property,” and to “be as
thorough and accurate as practical in preparing an itemized
inventory.” Id. at 1155 (alteration in original). In the
“REMARKS” section of the inventory form, the officer
listed “IPHONE/APPLE WATCH” and cross-referenced the
20 USA V. ANDERSON

police report. Id. On the referenced police report, the officer
listed several more items, “including, but not limited to, a
black backpack, air pistol, ink cartridges, USB flash drive,
and an American Express credit card.” Id. Although the
officers did not provide a complete inventory on the
inventory form itself, we held that they “complied
substantially” with department procedure by incorporating
the police report into the inventory report. Id. at 1158.
Taken together, these decisions establish that an
incomplete inventory form is not inherently fatal. An
incomplete inventory is valid if other actions taken by the
officers indicate that they were acting, at least in part, for
administrative reasons. See Opperman, 428 U.S. at 373
(noting the “Court has consistently sustained police
intrusions into automobiles impounded . . . where the process
is aimed at securing or protecting the car and its contents”);
Whren, 517 U.S. at 811–12 (noting the inventory exception
from warrant requirement only extended to searches made
for administrative purposes).
Turning to the present case, we must determine if the
facts demonstrate that the Government met its burden to
show that the deputies were at least partially motivated by
administrative purposes to search Anderson’s truck, or
whether they acted solely for investigative purposes. See
Johnson, 889 F.3d at 1127. To begin with, it cannot
reasonably be disputed that the deputies failed to inventory
Anderson’s personal property as mandated by SBCSD’s
standard procedure. SBCSD’s procedure requires deputies to
record “any personal property contained within the
vehicle.”2 This is important because this policy, unlike

2
The inventory report form also expressly instructs deputies to “list
property[] [and] tools.”
 USA V. ANDERSON 21

others that have been considered, does not afford deputies
discretion to pick and choose what to inventory. Cf. United
States v. Garner, 181 F.3d 988, 992 (8th Cir. 1999) (holding
officer’s failure to create an inventory list was not indicative
of bad faith where the applicable procedure did not require
the inventory search “be conducted in a particular manner”).
Yet, the only item that the deputies here recorded and
safeguarded was the firearm used as evidence against
Anderson. They did not inventory a speaker, tools, two pairs
of sunglasses, a watch, cologne, and other miscellaneous
items. And unlike in Garay and Magdirila, the inventory
report here did not otherwise record this omitted property.
See Garay, 938 F.3d at 1112 (“[The officer] checked a box
on the relevant inventory form indicating that items of
potential value were in the car before identifying and
booking the items recovered from the car as
‘evidence/property.’”); Magdirila, 962 F.3d at 1158
(officers listed some items and incorporated the police report
listing additional items); see also Garner, 181 F.3d at 991–
92 (upholding inventory search where policy did not dictate
manner of the inventory and the officer “did not complete a
specific inventory form to document the items seized”
because “the vehicle’s contents were recorded in other
ways,” including “a towing report” and “property record”).
Moreover, the deputies’ identification of the firearm and
ammunition taken from Anderson’s truck as “evidence” on
the crime report indicates that these items “were seized and
treated specifically as evidence of a crime—not as property
held for safekeeping.” Johnson, 889 F.3d at 1128.
To begin with, the dissent dismisses our attention to
SBCSD’s policy because it contends that the governing
inventory-search policy is irrelevant apart from its mere
existence because such policies “do not define constitutional
22 USA V. ANDERSON

rights.” Dissent at 48. The dissent further contends that an
officer’s failure to comply with the terms of the governing
policy cannot establish bad faith or pretext. These
propositions are untenable as a matter of precedent and logic.
If these propositions were true, the administrative purposes
that an inventory policy must serve to be valid, see Wells,
495 U.S. at 4, would be rendered meaningless so long as the
policy permitted an impoundment and inventory under the
factual circumstances presented. This is inconsistent with the
clear direction that an inventory policy’s application, as well
as its existence, is relevant to whether the inventory-search
exception justifies a warrantless search. See Opperman, 428
U.S. at 375–76. And if courts ignore whether law
enforcement officers comply with their department’s policy
“designed to produce an inventory,” then officers will not
have to serve the administrative purposes for which the
inventory-search exception was created in conducting
warrantless searches and instead will have a license to use
inventory searches as “a ruse for a general rummaging in
order to discover incriminating evidence.” Wells, 495 U.S.
at 4.
The Government and the dissent further argue that the
lack of a complete property list on the inventory form the
deputies prepared is immaterial because one of the deputies
took photographs of the inside of Anderson’s truck, which
depict personal property found in the truck. SBCSD’s
procedure does not contemplate inventory-by-photograph,
but regardless, the photographs did not record all the
property found in the truck. And different from Garay and
Magdirila, there is no indication that the photographs were
made part of the administrative inventory record. Rather, the
photographs were part of the separate investigative police
 USA V. ANDERSON 23

report,3 which was not referenced in the inventory report.
This is not a meaningless technicality, as the dissent
suggests. It is relevant in assessing the deputies’ motivation
because it indicates that the photographs were treated as
evidence. See Johnson, 889 F.3d at 1127–28 (the officers
and government attorneys’ actions made clear the search was
investigatory). There is no indication that SDCSD’s crime
reports are maintained in a manner to ensure the safekeeping
of personal property and to protect the department against
claims of theft or loss, and we cannot assume that they are.
The Government also argues that the incomplete
inventory report is immaterial because the deputy who
prepared the form could have decided to list only the firearm
because he saw nothing else of “significant value” in the
truck. This is unpersuasive. As discussed, SBCSD’s
inventory-search policy does not give deputies discretion to
decide what property should be listed. Additionally, the
record belies the Government’s argument that Anderson’s
property was not inventoried because it was deemed not to
have sufficient value. The deputy who prepared the
inventory form in this case listed tools and other items like
those he found in Anderson’s truck on inventory reports that
he prepared in other cases.
Finally, the dissent contends that our analysis of the
inventory search is inconsistent with Bertine, where the
Supreme Court upheld an inventory search that omitted
valuable items from the inventory. The inventory policy at
issue in that case “mandated a detailed inventory involving

3
The property listed in the police report also was limited to items with
apparent evidentiary value—a holster, a firearm, and ammunition. And
the police report describes the photographs as “digital photographs of the
vehicle, the obstructed license plate and the firearm located.”
24 USA V. ANDERSON

the opening of containers and the listing of [their] contents,”
and the primary question posed was whether officers could
open closed containers as part of an administrative inventory
search. Bertine, 479 U.S. at 370 (alteration in original). The
Court concluded that closed containers could be searched in
an inventory and further noted that “there was no showing
that the police, who were following standardized procedures,
acted in bad faith or for the sole purpose of investigation.”
Id. at 372. No doubt, the inventory prepared in that case was
far from complete. See id. at 383 (Marshall, J., dissenting).
But the point is not that the deputies here prepared an
incomplete inventory, as in Bertine and other cases that we
have discussed. The point is that they inventoried only the
evidence used to convict Anderson. Those were not the
circumstances in Bertine. There, the officers did inventory
non-evidentiary “items found in the vehicle,” including
“jumper cables, a tire, a shovel, and some sandbags.” People
v. Bertine, 706 P.2d 411, 413 (Colo. 1985) (en banc), rev’d,
479 U.S. 367 (1987). Stated another way, our concern with
the deputies’ inventory here does not go to their competence,
but to their purpose.4 See Johnson, 889 F.3d at 1125–26.

4
The dissent reads Bertine as suggesting that major deviations from
governing inventory policy are permissible, but that was not the issue the
Supreme Court confronted in that case. While the Colorado lower courts
addressed whether the “somewhat slipshod” manner of the inventory
search comported with federal and state constitutional requirements, the
Colorado Supreme Court premised its ruling on the federal constitution
alone and concluded that searches of closed trunks and containers
violated the Fourth Amendment. Bertine, 479 U.S. at 369–70. In
reversing the Colorado Supreme Court, Bertine held that an officer,
pursuant to a standard inventory policy, may open closed containers
during a routine inventory search. Id. at 374 (“We conclude that here, as
in Lafayette, reasonable police regulations relating to inventory
 USA V. ANDERSON 25

The bottom line is simple: the deputies’ recording of a
single item used as evidence, despite SBCSD’s procedure
requiring that they inventory “any personal property
contained within the vehicle” was not mere “minor” or
“slipshod” noncompliance. Bertine, 479 U.S. at 369;
Magdirila, 962 F.3d at 1157. It was a material deviation
from SBCSD’s standard inventory procedure, see
Magdirila, 962 F.3d at 1157, and the “inventory” that they
produced was incapable of serving the non-investigative
purposes of protecting an owner’s personal property and
protecting officers against accusations of theft or loss of an
owner’s property, see Opperman, 428 U.S. at 369. This
combination is relevant in assessing the deputies’ motives
for searching Anderson’s truck and strongly suggests that
they acted for purely investigatory reasons.5

procedures administered in good faith satisfy the Fourth Amendment.”);
see id. at 376 (Blackmun, J., concurring). Justice Marshall dissented
because in his view there was no standardized criteria to guide the
officers’ discretion in deciding whether to impound the vehicle or allow
it to be parked and locked, and no criteria guiding what items need to be
inventoried. Id. at 379–81 (Marshall, J., dissenting). The disputed
question, therefore, was whether the governing department policy
allowed for unfettered police discretion. Id. When Justice Marshall
discussed the slipshod inventory, id. at 382, he did so to make the point
that only one of the three governmental interests described in
Opperman—protecting an owner’s property in police custody—might
justify any automobile inventory search, and that even that factor did not
justify the search in Bertine because of how deficient it was, id. at 384.
In short, the Bertine court did not confront the question presented here—
whether major deviations from the governing administrative policy
inform the officers’ subjective motivations.
5
It is undisputed that the deputies searched Anderson’s truck for
investigatory reasons. The dispute is whether this was their sole reason
26 USA V. ANDERSON

B.
Other circumstances surrounding the search, considered
in the totality, also suggest that the deputies were not
motivated to search Anderson’s truck for administrative
purposes. See Lange, 141 S. Ct. at 2018. The deputies
decided to impound Anderson’s truck because he did not
have a valid license. Before the search began, the deputies
had discovered what they viewed as a “[l]ot of . . . money”
in Anderson’s wallet (around two hundred dollars),
questioned why Anderson had gloves and why his truck was
wet, and learned from dispatch that he was a career criminal.
The deputies clearly were suspicious that Anderson had
engaged in criminal behavior.
When the search was conducted, the deputies had not
arrested Anderson, although he was detained in handcuffs in
one of the deputy’s vehicles. These circumstances are
different from those presented in the Supreme Court’s cases
upholding inventory searches where law enforcement
arrested the defendant before searching the vehicle. See, e.g.,
Cooper, 386 U.S. at 58, 60–62 (vehicle impounded at arrest
and searched days later); Harris, 390 U.S. at 235 (vehicle
impounded at arrest and searched after it was towed to the
police precinct); Cady, 413 U.S. at 435–36 (defendant was
arrested and jailed for DUI before his wrecked car was
impounded); Bertine, 479 U.S. at 368–69 (search conducted
after defendant arrested for DUI); see also Garay, 938 F.3d

for searching. Much of what the dissent focuses on in concluding that the
deputies acted for an administrative purpose relates to the impoundment
of the truck—a seizure. But here we are concerned with the search of the
truck. A seizure and a search are different acts, which implicate different
interests. See Segura v. United States, 468 U.S. 796, 806 (1984) (“A
seizure affects only the person’s possessory interests; a search affects a
person’s privacy interests.”).
 USA V. ANDERSON 27

at 1110 (car impounded after defendant crashed following a
high-speed chase).
Additionally, the deputies conducted the search almost
immediately after they discovered a basis for impounding
Anderson’s truck. Cf. Cooper, 386 U.S. at 60–62; Harris,
390 U.S. at 235; Cady, 413 U.S. at 436–37 (search was
conducted after vehicle was towed); Wells, 495 U.S. at 2
(same); Johnson, 889 F.3d at 1123 (search conducted after
tow ordered). And the deputies did not remove or otherwise
secure Anderson’s personal property for safekeeping. Cf.
Harris, 390 U.S. at 235 (closed the vehicle’s windows to
protect against rain per departmental procedure and saw
evidence of a crime in plain view); Opperman, 428 U.S. at
366 (deputy inventoried and removed defendant’s personal
property for safekeeping).
By themselves, these facts have limited force, but where
Anderson was secured in the back of a patrol car and there
was no immediate exigency related to securing the truck and
its contents, they are part of the totality informing whether
the “inventory” search conducted here was an excuse “to
rummage for evidence.” Garay, 938 F.3d at 1111. There
may be cases where the surrounding circumstances are
inconsistent with the conclusion that law enforcement was
acting for investigatory purposes such that the lack of a
property inventory may be insufficient to demonstrate a
purely investigative motive, but that is not this case.
The dissent argues that the ordering of events is of no
moment because there are numerous cases where inventory
searches were upheld when the search occurred before the
defendant was arrested. None of the authority the dissent
cites on this point is from the Supreme Court. And the
dissent is incorrect to suggest that the ordering of events
28 USA V. ANDERSON

surrounding an inventory search is irrelevant. In Opperman,
for example, the Supreme Court specifically noted in support
of its conclusion that the officers were searching for
administrative purposes that “[t]he inventory was conducted
only after the car had been impounded” and the owner was
not present to arrange “for the safekeeping of his
belongings.” 428 U.S. at 375. The Fourth Amendment
inquiry is always based on the totality of the
circumstances—inventory searches are no exception.
For these reasons, the district court’s conclusion that the
deputies’ warrantless inventory search was valid is not
supported by the record. Ashker, 81 F.4th at 878; see also
Magdirila, 962 F.3d at 1156 (absent specific factual findings
related to the Fourth Amendment issue, there must be a
reasonable view to support a district court’s denial of a
motion to suppress).
*****
The Fourth Amendment, not policies governing
administrative searches, defines the constitutional right
against unreasonable searches and seizures. But given the
nature of the inventory-search exception to the warrant
requirement, law enforcement’s compliance with the
governing inventory procedure or policy can be material. To
satisfy the Fourth Amendment, an inventory search must
serve administrative, not solely investigatory, goals. Bertine,
479 U.S. at 371–72. And whether law enforcement officers
have complied with their governing inventory procedure can
inform their motivations for conducting an inventory search.
See Opperman, 428 U.S. at 376 (“[I]n following standard
police procedures, . . . the conduct of the police was not
‘unreasonable’ under the Fourth Amendment.”); Garay, 938
F.3d at 1111 (“If [an inventory search is] done according to
 USA V. ANDERSON 29

standardized criteria and not in ‘bad faith or for the sole
purpose of investigation,’ police inventory procedures
satisfy the Fourth Amendment.” (quoting Bertine, 479 U.S.
at 372)). Accordingly, deviation from the governing
inventory policy can evidence bad faith or that officers were
acting solely for investigative purposes.
The dissent laments that Anderson “goes free” as a result
of our decision. Dissent at 38. But, of course, one does not
lose his Fourth Amendment rights upon being convicted of
a felony—or even multiple felonies. And we do not enforce
the Fourth Amendment based on whether an underlying
conviction will be invalidated. See Riley, 573 U.S. at 401
(“We cannot deny that our decision today will have an
impact on the ability of law enforcement to combat
crime. . . . Privacy comes at a cost.”).
REVERSED and VACATED.

MENDOZA, Circuit Judge, concurring:

After pulling Jonathan Anderson over, police officers
performed a warrantless inventory search of his truck and
found a firearm underneath his driver’s seat. Mr. Anderson
maintains that this search violated the Fourth Amendment
because (1) the deputies lacked a valid community
caretaking justification to impound Mr. Anderson’s truck,
and (2) their subsequent inventory search was unreasonable
under the Fourth Amendment. The majority only reaches
the latter issue, addressing whether the deputies’ inventory
search violated the Fourth Amendment, correctly finding
that it did. I write separately to address the community
caretaking question. As with so many Fourth Amendment
30 USA V. ANDERSON

issues, determining whether the community caretaking
exception applies in this case is a fact-intensive inquiry.
Although we owe great deference to the trial court’s finding
of fact, when it makes a clear error that impacts its legal
analysis, we are obligated to correct it. Here, the trial court
made such an error, and I would reverse its decision on this
basis as well.
I.
Deputy Daniel Peterson noticed Mr. Anderson driving
with a partially obstructed license plate at around 2:00 a.m.
on November 13, 2019. After Mr. Anderson sped into a
residential neighborhood, the deputy initiated a traffic stop
and called for back-up. Mr. Anderson drove about a
thousand feet, pulled into a driveway, exited his truck, and
tossed his keys onto the front lawn. Deputy Peterson drew
his gun and ordered Mr. Anderson to get on his knees. While
Mr. Anderson complied with the deputy’s orders, a second
officer, Deputy Kyle Schuler, arrived and placed
Mr. Anderson in handcuffs. Mr. Anderson told the deputies
that he was parked in “a friend[’s]” driveway and that his
driver’s license was expired. Deputy Peterson called
dispatch, which relayed that Mr. Anderson was a “career
criminal.” Meanwhile, Deputy Schuler searched through
Mr. Anderson’s wallet; asked him why he had a “lot of
. . . money” in it; questioned him about his truck, which
appeared freshly washed, and commented on the gloves that
Mr. Anderson was wearing.1 All this interaction and
discussion occurred before any contact was made with the

1
As the majority notes, the clear implication of these questions was that
Deputy Schuler suspected Mr. Anderson of criminal behavior, well
before the search of his truck.
 USA V. ANDERSON 31

owner of the home where Mr. Anderson had parked,
Mr. Michael Wallace.
At some point later, Deputy Schuler spoke with
Mr. Wallace who asked the deputies to remove
Mr. Anderson’s truck from his driveway. According to
Mr. Anderson, this conversation occurred after Deputy
Peterson had already searched his truck and found the
firearm. But the government contends that Deputy Schuler
spoke to Mr. Wallace before the search began. The district
court resolved this factual dispute in favor of the
government, noting that the “only evidence before [it] at
[the] time, other than speculation, from the testimony of the
witnesses, is that [the deputies] did talk to the homeowner
before they searched the car.” For the reasons explained
below, this finding is clearly erroneous.
II.
Although we owe great deference to a trial court’s
factual findings—particularly when, like here, the district
court takes testimony on the subject, United States v.
Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008)—we need
not affirm a “clearly erroneous” decision if we are “left with
the definite and firm conviction that a mistake has been
committed,” United States v. Hinkson, 585 F.3d 1247, 1260
(9th Cir. 2009) (en banc) (cleaned up). We reverse a district
court’s finding if it is “illogical, implausible, or without
support in inferences from the record.” Oakland Bulk &
Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603,
613 (9th Cir. 2020). We should not cosign a district court
finding that is contradicted by objective evidence and
common sense.
The court’s finding that the officers spoke to the
homeowner before searching Mr. Anderson’s car is clearly
32 USA V. ANDERSON

erroneous for two reasons. First, the court’s finding requires
us to believe that the deputies questioned Mr. Anderson,
placed him in the back of the patrol car, spoke with the
homeowner, located the firearm, and called it in to dispatch
in roughly two minutes. In my view, this is an implausible
timeline of events, given the testimony and verifiable
dispatch log and audio recording. Second, the district
court’s proffered explanation—that there was no
nonspeculative evidence that the deputies searched the
vehicle before speaking to Mr. Wallace—is unsupported by
the record. See, e.g., Reber v. United States, 951 F.2d 961,
969 (9th Cir. 1991) (finding that mischaracterization of
evidence constitutes clear error). Contrary to the district
court’s suggestion, there was more than mere speculation in
the record that the officers searched the vehicle before
speaking to Mr. Wallace.
Based on Deputy Peterson’s audio recording and
dispatch log,2 we know that Deputy Schuler could not have
spoken to Mr. Wallace until after 2:06:36 a.m.3 We also
know that Deputy Peterson found the gun in Mr. Anderson’s
car and reported its serial number to dispatch at 2:08:46 a.m.

2
To construct an accurate timeline of events, we reviewed (1) Deputy
Peterson’s audio-belt recording, which was translated into a roughly
five-minute transcript, and (2) the dispatch log bearing a timestamp for
Deputy Peterson’s calls to dispatch. Viewing these two records together,
we can deduce the timing of events that are heard in the belt recording.
3
The record reflects that Deputy Peterson called dispatch to inquire
about Mr. Anderson’s expired license two minutes and thirty-nine
seconds (2:39) into Deputy Peterson’s belt recording—which
corresponds with the 2:04:48 a.m. mark of the dispatch log. Using these
datapoints as a baseline, and running the clock concurrently, we know
that Deputy Schuler spoke to Mr. Anderson until around 2:06:36 a.m.,
before leaving to speak with Mr. Wallace.
 USA V. ANDERSON 33

If we were to adopt the district court’s factual finding—that
Deputy Schuler spoke with Mr. Wallace before Deputy
Peterson searched the truck—then the following events
would have had to occur in a two minute and ten second
window: (1) the deputies lead Mr. Anderson, who was
vocally objecting to the search of his truck, to the back of the
patrol car; (2) Deputy Schuler walked up the driveway to the
front door of Mr. Wallace’s house; (3) he knocked twice on
the door; (4) he woke Mr. Wallace in the middle of the night;
(5) he waited for Mr. Wallace to wake up and answer the
door; (6) he spoke to Mr. Wallace, who confirmed that he
did not know Mr. Anderson; (7) he signaled to Deputy
Peterson to search the truck; (8) Deputy Peterson
acknowledged the signal, and searched Mr. Anderson’s
truck; (9) Deputy Peterson found a gun underneath the
driver’s seat; (10) he located the car’s serial number and read
it, at night; and (11) he called the serial number in to
dispatch.
Even after giving special deference to the district court’s
credibility determinations, Craighead, 539 F.3d at 1082, that
timeline of events is, simply put, implausible. Particularly
when Mr. Wallace testified that it took him at least a minute
or two to wake up and answer the door. He also testified that
he spoke to Deputy Schuler for approximately three to five
minutes, and that he did not see Deputy Schuler signal to
Deputy Peterson. After being questioned about the accuracy
of his recollection of these details, Mr. Wallace stated: “I’m
positive, I’m sure.” Even if Mr. Wallace overestimated the
length of time it took him to wake up and answer the door,
which is certainly possible, the district court’s finding of fact
inexplicably allots a matter of seconds for Mr. Wallace to
jump out of bed in the middle of night to give officers the
green light to search Mr. Anderson’s truck. His testimony is
34 USA V. ANDERSON

direct, non-speculative evidence that the deputies did not
speak to him before searching Mr. Anderson’s truck.
The record also shows that Deputy Peterson called
dispatch to inquire about Mr. Anderson’s expired license at
2:04:48 a.m. Mr. Anderson submitted an affidavit attesting
that Deputy Peterson entered and searched his truck without
permission at 2:06:19 a.m.4 According to the district court’s
finding of fact, the deputies had not yet spoken to
Mr. Wallace at this point. In fact, Deputy Schuler can still
be heard speaking to Mr. Anderson, and it would be another
two minutes and twenty-seven seconds before Deputy
Peterson called dispatch to report the firearm at 2:08:46 a.m.
There are two explanations for why Mr. Anderson can
be heard objecting to a search of his truck prior to the
moment when the court determined that the deputies had
spoken to Mr. Wallace: either the deputies had
predetermined that they would search Mr. Anderson’s truck
before confirming whether it was in fact legally parked, or
they had already begun to search the truck and the court’s
factual finding is incorrect. Either way, Mr. Anderson’s
declaration, combined with the belt recording and dispatch
log, is direct, non-speculative evidence that the search
occurred before the officers spoke to Mr. Wallace, and that
the officers were motivated by investigatory rather than
administrative purpose.
Taken together, the direct, disinterested testimony of
Mr. Wallace and the unimpeachable dispatch log and audio

4
This is an imputed time, based on Mr. Anderson’s declaration that the
search began four minutes and ten seconds (4:10) into the belt recording,
around the same time Mr. Anderson can be heard objecting to a search
of his truck.
 USA V. ANDERSON 35

recording amount to more than mere speculation. Even if
the court discredits Mr. Wallace’s testimony and
Mr. Anderson’s attestations, the court is still left with a
finding of fact that leads to an implausible timeline of events.
For all these reasons, I am left with the “firm conviction”
that the district court’s finding that the deputies spoke to
Mr. Wallace before searching the truck is clearly erroneous.
Hinkson, 585 F.3d at 1260.
III.
The district court’s factual finding led to the conclusion
that the deputies had a valid exception to the warrant
requirement to seize and search Mr. Anderson’s truck.
Finding that the deputies spoke to Mr. Wallace after
searching Mr. Anderson’s truck compels us to conclude
otherwise. Warrantless searches and seizures “are per se
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357
(1967). The community caretaking exception is one such
exception, allowing officers to seize vehicles that pose a
hazard to other drivers, impede the flow of traffic, or are
targets of vandalism or theft. See Miranda v. City of
Cornelius, 429 F.3d 858, 864 (9th Cir. 2005). Officers may
not use this exception, however, as a pretext to investigate
suspected criminal activity, see Cady v. Dombrowski, 413
U.S. 433, 441 (1973), because “[t]he police’s authority to
search and seize property when acting in its role as
‘community caretaker’ has a different source than its
authority to search and seize property to investigate criminal
activity,” Miranda, 429 F.3d at 863. As is true in the case of
any warrantless search and seizure, “the government bears
the burden” of proving an exception applies, United States
v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2010), and this
36 USA V. ANDERSON

burden is a “heavy” one, United States v. Howard, 828 F.2d
552, 555 (9th Cir. 1987) (reasoning that the government’s
burden cannot be “satisfied by speculation”); see also
Cervantes, 703 F.3d at 1142 n.1 (collecting cases).
The government contends that Deputy Schuler spoke to
Mr. Wallace before the search began. Adopting this version
of events, the district court held that the deputies had a valid
community caretaking justification to impound
Mr. Anderson’s truck, search his vehicle, and locate the
firearm underneath the driver’s seat. See United States v.
Torres, 828 F.3d 1113, 1119 (9th Cir. 2016) (holding that a
community caretaking seizure is justified to “promote other
vehicles’ convenient ingress and egress to the parking
area”). But the court’s factual finding is clearly erroneous
for the reasons explained above, and based on the facts in the
record, I find that the officers did not speak to Mr. Wallace
until after searching the vehicle. Thus, at the time deputies
searched Mr. Anderson’s truck, they had no basis to disprove
Mr. Anderson’s claim that he was parked at a friend’s house,
and therefore, had no community caretaking reason to
impound and search his truck. See Miranda, 429 F.3d at 866
(holding that a community caretaking seizure is unjustified
when “the location of the vehicle does not create any need
for the police to protect the vehicle or to avoid a hazard to
other drivers”).
Though the deputies later discovered a valid community
caretaking purpose to seize the truck, the facts show that the
deputies did not have a valid administrative purpose at the
moment they decided to search Mr. Anderson’s truck.5 See
Miranda, 429 F.3d at 864 (holding that in assessing whether

5
As the majority correctly notes, the doctrine of inevitable discovery is
waived.
 USA V. ANDERSON 37

a seizure was justified by the community caretaking
exception, “we must examine whether this seizure is
reasonable based on all of the facts presented”). The
government may not rely on post-hoc justifications to meet
its heavy burden of proving an exception to the warrant
requirement; particularly when the deputies were
purportedly acting under a community caretaking function,
which the Supreme Court has described as being “totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.”
Cady, 413 U.S. at 441. Permitting otherwise would endorse
a search-first-and-find-ample-justification-later approach
that is incompatible with our well-established precedent.
See Byars v. United States, 273 U.S. 28, 29 (1927) (“A
search prosecuted in violation of the Constitution is not
made lawful by what it brings to light[.]”); United States v.
Taheri, 648 F.2d 598, 600 (9th Cir. 1981) (holding that to
permit “post hoc justification[s] for using information that
had [] been illegally obtained . . . would encourage police
officers to ignore the dictates of the fourth amendment in
conducting initial investigations”).
IV.
By the time the deputies began their investigatory relay
race, Mr. Anderson was safely handcuffed, posing no threat
to himself or others, his car was turned off and safely parked
in a driveway, and the deputies were under full control of the
situation. The district court found that the deputies spoke to
the homeowner before they searched the truck, leading the
court to conclude that the community caretaking exception
applied. That finding was erroneous, and counter to witness
testimony, the verifiable evidence, and, frankly, common
sense. Thus, lacking a factual edifice, the government failed
to meet its burden of demonstrating that the deputies’
38 USA V. ANDERSON

subsequent search was motivated by a valid community
caretaking purpose. In addition to the reasons outlined in the
majority, I would reverse the district court’s decision below
on the ground that the government also failed to establish
that the community caretaking exception applied.

BRESS, Circuit Judge, with whom CALLAHAN, IKUTA,
OWENS, and VANDYKE, Circuit Judges join, dissenting:

Jonathan Anderson, a six-time convicted felon, had a
loaded gun in his truck. This meant serious federal charges
and a surefire conviction. But today Anderson goes free.
The en banc court holds that evidence of the gun should be
suppressed because police violated the Fourth Amendment
when preparing the inventory form for Anderson’s validly
impounded vehicle. In so ruling, the court distorts the legal
framework for inventory searches, contravenes decades of
Supreme Court and circuit precedent, and turns hairsplitting
distinctions into constitutional rules.
Under settled law, the validity of an inventory search
depends on whether officers acted in bad faith or for the sole
purpose of investigation. With an inspector’s clipboard, the
majority instead holds that officers violated the Constitution
because they did not follow the court’s new hyper-technical
rules for filling out forms—which the deputies here had to
do in the middle of the night after lawfully stopping a career
criminal. The touchstone of the Fourth Amendment is
reasonableness. In scrutinizing the minutiae of officer
paperwork, the majority loses sight of this core
constitutional principle. This decision is not only wrong as
a matter of law but will seriously jeopardize public safety,
 USA V. ANDERSON 39

invalidating entirely lawful searches and resulting
convictions, just like those here.
I respectfully dissent.
I
I begin with the majority’s warping of the legal
standards. Until today’s decision, those standards were very
clear.
Inventory searches of automobiles are a longstanding
exception to the Fourth Amendment’s warrant requirement.
Colorado v. Bertine, 479 U.S. 367, 371 (1987). When police
lawfully impound a vehicle, as they did here, they may
conduct an inventory search pursuant to a standardized
policy. Id. at 375–76; see United States v. Mancera-
Londono, 912 F.2d 373, 375–76 (9th Cir. 1990). In this
context, an individual’s expectation of privacy as to the
contents of his vehicle—which is a “diminished expectation
of privacy” to begin with—is outweighed by the “strong
governmental interests” in “protect[ing] an owner’s property
while it is in the custody of the police,” “insur[ing] against
claims of lost, stolen, or vandalized property,” and
“guard[ing] the police from danger.” Bertine, 479 U.S. at
372; see also Illinois v. Lafayette, 462 U.S. 640, 647 (1983);
South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
When officers act pursuant to a valid standardized
policy—which they indisputably did here—an inventory
search will be upheld unless it is conducted “in bad faith or
for the sole purpose of investigation.” Bertine, 479 U.S. at
372. That is the legal standard that has governed us for
many, many years. “[R]easonable police regulations
relating to inventory procedures administered in good faith
satisfy the Fourth Amendment,” the Supreme Court has held.
40 USA V. ANDERSON

Id. at 374. As we have said, “[i]f done according to
standardized criteria and not in ‘bad faith or for the sole
purpose of investigation,’ police inventory procedures
satisfy the Fourth Amendment.” United States v. Garay, 938
F.3d 1108, 1111 (9th Cir. 2019) (quoting Bertine, 479 U.S.
at 372).
Critically, because “a department’s policies do not define
constitutional rights,” we have held that “the failure to
complete an inventory form does not invalidate an inventory
search.” Id. at 1111–12. Instead, to establish bad faith there
must be “something else” beyond the asserted non-
compliance with an inventory policy’s administrative
requirements. Id. at 1112 (quotations omitted). And
because police are prohibited only from conducting
inventory searches for the “sole purpose” of investigation, a
search is not vitiated simply because a motive for the search
is crime detection: “Importantly, ‘the mere presence of a
criminal investigatory motive or a dual motive—one valid,
and one impermissible—does not render’” an inventory
search invalid. United States v. Magdirila, 962 F.3d 1152,
1157 (9th Cir. 2020) (quoting United States v. Johnson, 889
F.3d 1120, 1126 (9th Cir. 2018) (per curiam)). These are the
principles and foundations on which the bad faith inquiry
rests.
Curious then, that the majority does not recite the usual
“bad faith” test until almost halfway into its opinion. The
majority opinion instead begins by claiming that “[t]he
question here is whether an officer’s failure to comply with
governing administrative procedures is relevant in assessing
the officer’s motivation for conducting an inventory search.”
But that facially modest question is not at all the question the
majority goes on to answer. Instead, the majority treats the
deputies’ compliance with department inventory search
 USA V. ANDERSON 41

policies—and the specific requirement to write items on an
inventory form—as dispositive. The majority tells us that
“[t]o satisfy the Fourth Amendment, an inventory search
must serve administrative, not solely investigatory, goals.”
And because the deputies did not list enough items on the
inventory form, the majority concludes that “the ‘inventory’
that they produced was incapable of serving the non-
investigative purposes of protecting an owner’s personal
property and protecting officers against accusations of theft
or loss of an owner’s property.” All of this explains why
despite opening with an unassuming question of
“relevance,” we are later told midway through the opinion
that the question is actually much different: “The primary
question is whether the deputies’ deviation from the
governing inventory procedure indicates that they acted in
bad faith or solely for investigative purposes.”
What is happening here is a not-so-subtle shifting of the
legal inquiry. In orienting its analysis around deputies’
compliance with one part of their department’s inventory
search policy, the majority’s opinion massively alters the
long-established “bad faith” test. By marrying the officers’
non-compliance with departmental policy with whether the
resulting inventory “serve[s] the administrative purposes for
which the inventory-search exception was created,” the
majority has effectively turned non-compliance with
inventory search procedures into the test for bad faith. The
majority is not requiring a showing that the deputies acted in
bad faith through actions beyond non-compliance with their
department’s administrative procedures. But see Garay, 938
F.3d at 1112 (making clear that “something else” is
required). The majority is instead examining whether an
inventory that results from such non-compliance is serving
42 USA V. ANDERSON

the purposes of the administrative search exception. That
has never been the inquiry.
Indeed, it contradicts long-settled law. In Bertine, the
Supreme Court’s seminal precedent on inventory searches,
police prepared a “somewhat slipshod” inventory, 479 U.S.
at 369, that, among other things, “failed to list $150 in cash
found in respondent’s wallet or the contents of a sealed
envelope marked ‘rent,’ $210, in the relevant section of the
property form,” made “no reference to other items of value,
including respondent’s credit cards, and a converter, a
hydraulic jack, and a set of tire chains, worth a total of $125,”
and failed to include the “$700 in cash found in respondent’s
backpack, along with the contraband.” Id. at 383 (Marshall,
J., dissenting).
If the test were whether this inventory served the non-
investigative purposes of an inventory search, as the
majority here claims, Bertine should have come out the other
way. Indeed, that was the view of the Bertine dissent, which
followed the majority’s same rationale in concluding that the
officer’s “inventory . . . would not have protected the police
against claims lodged by respondent, false or otherwise.” Id.
But this was decidedly not the view of the Bertine majority,
which held that “reasonable police regulations relating to
inventory procedures administered in good faith satisfy the
Fourth Amendment.” Id. at 374. The test, in other words, is
whether the officers acted in good faith, not whether (as the
majority claims) the inventory they produced serves the
purposes of the inventory search exception.
By reorienting the inquiry into the officers’ compliance
with departmental policy, the majority runs roughshod over
our longstanding precedent—which the majority does not
expressly overrule—as well as the precedent of the other
 USA V. ANDERSON 43

circuits. As we previously held, “[t]hat [an] officer did not
complete the inventory list that ordinarily would be
completed as part of a department inventory search is not, on
its own, a material deviation from policy.” Garay, 938 F.3d
at 1112. Instead, “[t]here must be something else; something
to suggest the police raised ‘the inventory search banner in
an after-the-fact attempt to justify’ a simple investigatory
search for incriminating evidence.” Id. (quoting United
States v. Rowland, 341 F.3d 774, 780 (8th Cir. 2003)).
Indeed, as we favorably pointed out in Garay, “[o]ther
circuits have expressly recognized that the failure to
complete an inventory form does not invalidate an inventory
search.” Id. (citing, e.g., United States v. Loaiza-Marin, 832
F.2d 867, 869 (5th Cir. 1987) (per curiam); United States v.
Trullo, 790 F.2d 205, 206 (1st Cir. 1986); United States v.
O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985)); see also,
e.g., United States v. Williams, 777 F.3d 1013, 1016 (8th Cir.
2015); United States v. Cartwright, 630 F.3d 610, 616 (7th
Cir. 2010). “[I]t is a long leap from the proposition that
following regular procedures is some evidence of lack of
pretext to the proposition that failure to follow regular
procedures proves (or is an operational substitute for)
pretext.” Whren v. United States, 517 U.S. 806, 816 (1996).
But it is that latter proposition that the court embraces today.
The majority also commits a further legal error in
holding that “[i]t is the government’s burden to prove that
the Fourth Amendment is satisfied and the criteria for the
inventory-search exception are met.” This statement is
overbroad and only partially correct as it pertains to this
case. It is the government’s burden to show that the
threshold criteria for the inventory search exception are met,
namely, that there was a sufficient community caretaking
reason for impounding the vehicle and that the police
44 USA V. ANDERSON

department had a sufficiently standardized inventory search
policy. See, e.g., United States v. Cervantes, 703 F.3d 1135,
1141 (9th Cir. 2012) (government must establish community
caretaking function for the impoundment); United States v.
Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991) (government
must establish the existence of a sufficiently standardized
inventory search policy).
But when the allegation is that the officers who
performed the inventory search did so in bad faith, we have
said that it falls to the defendant to “produce[] evidence that
demonstrates the officers would not have searched and
seized items from the car he was driving but for an
impermissible motive.” Johnson, 889 F.3d at 1126; see also
id. at 1135 (Paez, J., specially concurring) (a defendant “may
only succeed in challenging the [inventory] search . . . by
showing that [the officer’s] search was motivated by an
‘investigatory police motive’”) (quoting United States v.
Banks, 482 F.3d 733, 741 (4th Cir. 2007)); see also United
States v. Orozco, 858 F.3d 1204, 1213 (9th Cir. 2017)
(permitting, in analogous administrative search context,
inquiry into an officer’s subjective motivations “where the
defendant has come forward with objective evidence to
suggest that the intrusion was not made for the purpose of
enforcing the administrative inspection scheme”). As the
First Circuit has recognized, our circuit holds that “the
burden is on the defendant” to prove pretext. United States
v. Sylvester, 993 F.3d 16, 24 n.6 (1st Cir. 2021) (citing, inter
alia, the Ninth Circuit’s decisions in Johnson and Orozco);
see also Banks, 482 F.3d at 741 (explaining that “Banks may
only succeed in challenging the search of the bags, then, by
showing that Det. Gunn’s search was motivated by an
‘investigatory police motive,’” and upholding the inventory
search because “Banks presented no evidence that Det. Gunn
 USA V. ANDERSON 45

initiated the search of the bags or conducted the inventory
search because he suspected that he would find incriminating
evidence therein”); United States v. Maestas, 2 F.3d 1485,
1491 (10th Cir. 1993) (explaining that for border checkpoint
stops, which are administrative searches in which officer
subjective motivation is relevant, “the defendant bears the
burden of proving that a legally sufficient basis asserted as a
justification for a search or seizure was pretextual”); 6
Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 11.2(b) (6th ed. 2022) (explaining that
most Fourth Amendment pretext cases suggest that the
defendant has the burden to show pretext).
The majority opinion cites the standard rule that “the
burden is on those seeking the exemption [from the warrant
requirement] to show the need for it.” Arkansas v. Sanders,
442 U.S. 753, 760 (1979) (quoting United States v. Jeffers,
342 U.S. 48, 51 (1951)). But that default rule does not
extend to what the majority agrees is the rare context in
which an officer’s subjective motivations are relevant. See
Kentucky v. King, 563 U.S. 452, 464 (2011) (“[W]e have
never held, outside limited contexts such as an ‘inventory
search or administrative inspection . . . , that an officer’s
motive invalidates objectively justifiable behavior under the
Fourth Amendment.’”) (quoting Whren, 517 U.S. at 812). In
that situation, it is the party making the claim of bad faith
who should naturally bear the burden of proving it. It is not,
as the majority appears to suggest, the burden of law
enforcement officers to prove a negative.
The majority acknowledges our precedents holding that
the defendant must “come forward with objective evidence
to suggest that the intrusion was not made for the purpose of
enforcing the administrative inspection scheme.” Johnson,
889 F.3d at 1126 (quoting Orozco, 858 F.3d at 1212–13).
46 USA V. ANDERSON

But the majority then asserts, without any citation, that
“[t]his production requirement does not, however, shift the
ultimate burden of proof regarding application of the
inventory-search exception to the defendant.” We have
never suggested there is any distinction in this area between
the defendant’s burden of proof and his burden to come
forward with evidence showing pretext. It is unclear from
the majority opinion if the burden of proof on the bad faith
issue now lies with the government or with no one. But it is
clear it no longer lies with the person who always bore it
until today: the defendant. This is yet another point of law
in the majority opinion where our previously clear legal
standards have now become scrambled.
II
Applying the proper legal standards, it is obvious that the
deputies complied with the Fourth Amendment and that the
gun found during the search of Anderson’s truck should not
be suppressed. Deputies validly detained Anderson after he
sped away from a lawful traffic stop and upon learning that
Anderson had an expired license and was a career criminal
(he had six prior felony convictions). Deputies had a valid
basis for impounding Anderson’s vehicle because Anderson
lacked a valid driver’s license and was parked in the
driveway of a random home on a dead-end street, with the
homeowner telling deputies he wanted Anderson’s truck
removed. The truck had to be towed, and so deputies, under
department policy, had to perform an inventory search.
 USA V. ANDERSON 47

Indeed, they explicitly told Anderson this was what they
were doing before commencing the search.1
There is no indication that the deputies conducting the
inventory search were operating “in bad faith or for the sole
purpose of investigation.” Bertine, 479 U.S. at 372. And it
is simply remarkable for the majority to conclude that the
deputies’ search was not even “at least partially motivated
by administrative purposes”—that everything the deputies
did that night in searching the truck and documenting their
findings was somehow a giant ruse to cover up an improper
investigatory objective.
None of this is consistent with law. The majority’s
holding turns on fine-grained criticisms of how the deputies
documented what was in the truck and the order in which
they handled matters. But the Fourth Amendment does not
elevate such technicalities into constitutional prohibitions.
In blaming the officers for their skills in filling out
paperwork in the middle of the night, the majority ushers in

1
Anderson also challenges the inventory search on the ground that the
officers, in the first place, lacked a valid community caretaking purpose
for impounding his vehicle. He claims that deputies searched his truck
before talking to the homeowner on whose driveway the truck was
parked. The deputies, in contrast, maintain they did not search the truck
until after the homeowner told them he did not know Anderson and
wanted the truck removed. Because the majority does not reach this
issue, I do not address it further except to note that I would hold that the
impoundment of Anderson’s vehicle was valid. After hearing testimony
at a suppression hearing, the district court found that the deputies spoke
to the homeowner before searching the truck. The district court’s factual
finding was not clearly erroneous. United States v. Hylton, 30 F.4th 842,
846 (9th Cir. 2022). “Review under the clearly erroneous standard is
significantly deferential, requiring for reversal a definite and firm
conviction that a mistake has been committed.” Id. That standard is not
met here.
48 USA V. ANDERSON

a jurisprudence of silly faults that will confound courts and
impede the valid enforcement of our criminal laws.
A
The majority’s central problem with the officers’
conduct is the degree to which they deviated from
departmental policy in preparing the inventory form. It bears
repeating that the majority’s intense focus on this issue is
seriously misplaced and contrary to precedent that the
majority never says it is overturning. A department’s
inventory policies “do not define constitutional rights,” so
“the failure to complete an inventory form does not
invalidate an inventory search.” Garay, 938 F.3d at 1111–
12. And because “administrative errors should not, on their
own, invalidate inventory searches,” “there must be
something else” to suggest that the inventory search was
pretextual. Id. at 1111–12 (quoting Rowland, 341 F.3d at
780). That is the clear teaching of Bertine, Garay, and so
many other cases. The majority therefore seriously errs in
claiming that the “primary question” in this case concerns
“the deputies’ deviation from the governing inventory
procedure.”
But even under the majority’s misguided view that
compliance is king, the government should still prevail. The
San Bernadino County Sheriff’s Department policy requires
officers when impounding vehicles to fill out a California
Highway Patrol (CHP) 180 vehicle report. I am attaching as
Appendix A to this dissent the form that was filled out in this
case. The deputies who prepared the form took substantial
efforts in doing so.
On the CHP 180 form, which indicates that it was filled
out shortly after 2:00 a.m., deputies checked numerous
boxes reflecting the condition and contents of Anderson’s
 USA V. ANDERSON 49

truck. They noted, for instance, that the truck contained
front and rear seats, two radios, and a battery, but lacked a
tape deck, tapes, a registration form, or a camper. Deputies
initially marked down that Anderson’s truck contained an
ignition key, but then revised the form to reflect that it did
not. Deputies complied with the department’s requirement
to “[o]btain the signature, date, and time of the arrival of the
tow truck driver,” recording those details on the form. In the
form’s “Remarks” section, which directs officers to “List
Property, Tools, Vehicle Damage, Arrests,” deputies wrote
that Anderson’s vehicle displayed “misc. scratches & dents
360°” and “damage to pass. door and tailgate,” sketching the
location of those imperfections on graphics of a generic
vehicle that are printed at the bottom of the form. In the
same section, in addition to chronicling the circumstances of
Anderson’s arrest, they also wrote: “upon inventory search
firearm located.” Did the officers write all of this down as a
cover for their pretext and bad faith?
And that was just the CHP 180 form. A deputy also took
five photos of the interior of Anderson’s truck, which he
testified were taken in part for the purpose of inventorying
the contents of the vehicle. I am attaching these photos as
Appendix B to this dissent. The photos depict the front seats
and back seats of the truck, with close-ups of the driver and
passenger sides. The photographs depict a speaker, an
iPhone cord, a Ray-Ban sunglasses box, a lint roller, a box
of tampons, stray papers, and various pieces of trash,
including empty water bottles, a Dr. Pepper can, and a half-
finished glass bottle of Starbucks Frappuccino. Officers
referenced the photos in their police report prepared on the
same day, describing them as “several digital photographs of
the vehicle.” Officers also booked as “property/evidence” a
CD containing the photographs, along with the holster of
50 USA V. ANDERSON

Anderson’s gun. They booked the gun itself and the
ammunition it contained under the separate category of
“gun.” Was it pretextual and in bad faith for the officers to
take photos documenting the interior of Anderson’s truck
and to then note, in a formal police report, that they had done
so?
Looking for fault wherever it can be found, the majority
finds some. The majority first seizes upon the fact that the
department’s policy states that officers should include on the
CHP 180 form “an inventory of any personal property
contained within the vehicle.” See, says, the majority: “any
property.” We know this is critical to the majority because
its opinion italicizes the word “any” three times, every time
it quotes the policy. We are thus told it is significant that the
CHP 180 form omitted other property in Anderson’s truck,
such as a speaker, an iPhone cord, tools, an Android phone
charger, sunglasses, a watch, cologne, and “other
miscellaneous items.”
The majority’s analysis is fundamentally misdirected. Is
the majority opinion really suggesting that officers acted in
bad faith because they did not include every item in the truck
on the inventory form? The answer appears to be yes
because the majority explicitly rejects the theory that the
inventory search policy has any value limitation, because,
after all, it does say “any personal property.” So it would
apparently be just as problematic if officers had listed the
sunglasses but neglected to include the lint roller, if they had
mentioned the cologne but not the box of tampons. What
about all the trash? Like many people, Anderson had a lot
of stuff in his vehicle. The message to convicted felons in
San Bernadino is that if they want to drive armed, it is best
to have a very messy car. But is the officers’ failure to
inventory every single item at two o’clock in the morning
 USA V. ANDERSON 51

truly the basis for a finding of bad faith, by which a six-
times-over convicted felon will avoid a 77-month federal
sentence for unlawfully possessing a loaded gun? This
vision of the Fourth Amendment is unrecognizable to me.
Of course, a closer inspection of the items that the
majority lists shows that many were in fact accounted for.
The speaker and iPhone cord are clearly visible in the
photographs that a deputy took of the interior of Anderson’s
truck. Although the sunglasses are not themselves shown in
the photographs, a Ray-Ban sunglasses box plainly is.
Another photo may depict a bag of tools (the bag is in the
distinctive shape of a jack handle set for removing tires).
The majority criticizes the deputies for not listing on the
form “other miscellaneous items,” but many such items are
seen in the photographs. The deputy who prepared the form
testified that he did not recall seeing a watch. Anderson’s
fiancée, who the next day accompanied him to the tow yard
to pick up the truck, did not recall a watch being in the truck
when they retrieved it, nor did she allege a watch was
missing.
That leaves us with an Android charger (Anderson’s
fiancée didn’t recall that either) and a bottle of cologne
(which, by the way, was partially empty). These items were
of minimal value. The majority’s rejoinder is, once again,
that the department’s policy requires “any” property to be
inventoried and “does not give deputies discretion to decide
what property should be listed.” But the test here is not
whether officers failed to comply with the inventory policy.
See Garay, 938 F.3d at 1111–12. The items we are talking
about wouldn’t go for much at a garage sale. Yet they are
now Fourth Amendment linchpins.
52 USA V. ANDERSON

But let’s return to the photographs that the deputy took.
The photos clearly show the deputy’s effort to document
items contained in the truck. The photos are not limited to
illegal items (i.e., the gun), and they depict items that the
majority faults the officers for omitting from the CHP 180
form. But the photographs, too, turn out to be wholly
insufficient. The problem, the majority tells us, is that the
photographs “did not record all the property found in the
truck,” the department’s procedure “does not contemplate
inventory-by-photograph,” and “there is no indication that
the photographs were made part of the administrative
inventory record.”
But the simple answer to this under the Fourth
Amendment is: who cares? The question we are trying to
answer is whether deputies conducting the inventory search
acted in bad faith or for the sole purpose of investigation.
Bertine, 479 U.S. at 372. Taking imperfect photos in the
dark does not violate the Constitution. That deputies
recorded items through photographs rather than jotting them
down is also of zero constitutional significance. The
department policy that the majority references does not say
inventories can be performed through photography, but
neither does it say photographs may not be used. Indeed,
photographs are often the best way to memorialize things
(think how many times we pull out our phones and snap
quick photos). The majority takes pains to point out that the
deputies did not formally reference the photos on the CHP
180 form. But can this case really turn on the deputies’
supposedly grave misdeed of not scribbling the notation “see
photos” on the form? Nothing in the Fourth Amendment
requires that officers creating vehicle reports use the
majority’s preferred citation conventions.
 USA V. ANDERSON 53

Equally misplaced is the majority’s treatment of the
police report. The majority claims that “the deputies’
identification of the firearm and ammunition taken from
Anderson’s truck as ‘evidence’ on the crime report indicates
that these items ‘were seized and treated specifically as
evidence of a crime—not as property held for safekeeping.’”
(quoting Johnson, 889 F.3d at 1128). Although the majority
implies this shows deputies were not conducting a true
inventory search and were merely rooting for evidence, the
very crime report on which the majority relies specifically
states a page earlier that the gun and ammunition were found
“[w]hile conducting a vehicle inventory.” The majority’s
description of the police report as conveying that the gun and
ammunition were obtained “specifically as evidence of a
crime” is simply inaccurate.
Regardless, once the deputies located the gun and
ammunition, they were of course fully entitled to treat them
as evidence of a crime, which they were. The majority’s
suggestion that deputies would only be performing an
inventory search if they later held all items for
“safekeeping,” but not as evidence, is clearly wrong. The
deputies validly treated as evidence of a crime those items
that Anderson could not lawfully possess. The rest of the
items in the truck were held for “safekeeping,” and there is
no suggestion any of these items were lost. The majority is
thus incorrect in claiming that “the only item” the deputies
“safeguarded” was Anderson’s firearm. All of Anderson’s
items were safeguarded. That they were safeguarded in
different ways is of no constitutional moment.
The majority further concludes that the deputies’
attachment of the photographs to the crime report is evidence
of “the deputies’ motivation because it indicates that the
photographs were treated as evidence.” But the photographs
54 USA V. ANDERSON

we are talking about did not contain direct evidence of any
crime. They were simply photographs of Anderson’s
personal effects—a photographic inventory of the inside of
the truck. Indeed, the deputies specifically testified that the
photographs were taken for “both” inventory and evidentiary
purposes. Photographs of items located during an inventory
search will often have evidentiary value for a criminal
investigation. If the entirely commonplace referencing of
those photographs in a crime report implies that the
precipitating search was not a true inventory search,
countless inventory searches are now infirm.
The majority assures us that “an incomplete inventory
form is not inherently fatal”—phew!—and that “[a]n
incomplete inventory is valid if other actions taken by the
officers indicate that they were acting, at least in part, for
administrative reasons.” The majority’s own stated test is
easily met here. How can the majority possibly maintain that
the deputies were not acting, even in part, for administrative
reasons? The truck had to be towed. Before that, it could be
searched. Deputies filled out the CHP 180 form and took
photos of Anderson’s personal property when inventorying
the truck. The photos were then referenced in the police
report. And the police report itself referenced the CHP 180
form and the fact of the inventory search. If all this
legitimate law enforcement activity is not even evidence of
a partial administrative purpose, what would be?
The majority focuses on the fact that the CHP 180 form
did not reference the photos or the police report. But the idea
that the outcome of this case depends on which records
reference the other has no basis in principle or precedent. A
Fourth Amendment doctrine that turns on such minutiae fails
to respect Supreme Court and Ninth Circuit precedent,
elevating dead-of-night box-checking, document cross-
 USA V. ANDERSON 55

referencing, and the like into legal mandates, and,
improbably, telltale signs of officer bad faith. Trivial
distinctions are now the difference in whether the criminal
laws may be enforced against guilty violators. That is both
legally unsound and a dangerous state of affairs.
B
It should be clear that the majority’s decision is not
consistent with precedent. Indeed, it is a major departure
from existing law.
In Bertine, which I discussed above, the police
department’s policy “require[d] a detailed inspection and
inventory of impounded vehicles.” 479 U.S. at 369. Yet the
Supreme Court upheld the inventory search even though the
officer failed to list over $1,000 in cash found in three
separate locations in the vehicle, as well as credit cards and
various types of tools. See id. at 383 (Marshall, J.,
dissenting). In the Supreme Court’s view, however, “there
was no showing that the police, who were following
standardized procedures, acted in bad faith or for the sole
purpose of investigation.” Id. at 372 (emphasis added).
The majority in a lengthy footnote tries to argue that
Bertine involved other issues. But there is no escaping the
basic point that by the logic of today’s opinion, Bertine was
wrongly decided. If, as the majority says, a highly
significant “major deviation” from department policy
occurred here, how could that not be true in Bertine, too? By
the majority’s reasoning, the constitutional infirmity in the
Bertine inventory search should have been glaring. Indeed,
it was—to the Bertine dissent. See id. at 383 (Marshall, J.,
dissenting).
56 USA V. ANDERSON

Here, moreover, the majority’s departure from Bertine
extends not only to Bertine’s bottom-line result but to its
basic reasoning. Bertine reiterated that the Fourth
Amendment does not turn on “fine and subtle distinctions,”
and that “the real question is not what [officers] could have
. . . achieve[d] but whether the Fourth Amendment requires
such steps.” Id. at 374, 375 (quotations omitted). The
majority opinion is at odds with these basic precepts of
Fourth Amendment law, elevating deficient form-filling to
grounds for suppression, a “last resort” remedy. Hudson v.
Michigan, 547 U.S. 586, 591 (2006).
The majority opinion also contradicts our prior (and not
overruled) decisions in Garay and Magdirila. The majority
implies that this case is unique because deputies “inventoried
only the evidence used to convict Anderson.” That is of
course not even true: the majority can make this assertion
only by ignoring the photographs, which the deputies
testified were taken as part of the inventory process and
which depict most of the personal items at issue in the truck.
But even setting that aside, officers listing only the illegal
firearms on the inventory form was the very factual situation
in Garay, our leading precedent in this area.
In Garay, as here, an officer listed only firearms on an
inventory form, even though the department’s policy
required a listing of all the property found inside the vehicle.
938 F.3d at 1110–11. We refused to find bad faith or pretext
because the officer “obtained the tow truck driver’s signature
and noted the date and time of the driver’s arrival,”
“obtained a file number for the inventory,” “checked a box
on the relevant inventory form indicating that items of
potential value were in the car,” and booked “the items
recovered from the car as ‘evidence/property.’” Id. at 1111–
12.
 USA V. ANDERSON 57

Similarly, in Magdirila, the department’s policy required
an “accurate” inventory of “all property in a stored or
impounded vehicle,” but we were again unphased by the
officer’s non-compliance. 962 F.3d at 1155. We instead
found it “considerably” clear that the officer did not act in
bad faith when the inventory form “included some of the
property” in the defendant’s car and when the form
mentioned the police report, which recorded the rest. Id. at
1158.
The majority purports to distinguish Garay and
Magdirila because the officers in those cases alluded to other
items on the inventory form—in Garay by checking a box
on the form indicating there were items of potential value in
the car, and in Magdirila by referencing a police report,
which listed the items. But the majority thereby makes the
classic mistake of taking facts from other cases and
converting them into a legal rule—here one that is in fact
contrary to the basic logic of the decisions from which the
supposed rule emerged.
That officers in Garay and Magdirila checked boxes or
referenced other documents was in those cases supportive of
a lack of bad faith, but these ways of filling out forms are by
no means constitutional imperatives. Indeed, Garay treated
the officer’s failure to list anything but the guns on an
inventory form as a mere “administrative error[],” finding it
inconsequential because “the failure to complete an
inventory form does not invalidate an inventory search.”
938 F.3d at 1112. As Judge Berzon has explained, “Garay
held that the lack of any inventory is an insufficient reason
to invalidate the inventory search.” Magdirila, 962 F.3d at
1159 (Berzon, J., concurring). The majority opinion instead
reimagines Garay and Magdirila to support its intense focus
58 USA V. ANDERSON

on the specific way in which inventory forms are filled out,
ignoring the core principle of those cases.
In this case, of course, the deputies did comply with their
department’s inventory search policy in material respects:
among other things, and as in Garay, they filled out the CHP
180 forms, documented the arrival of the tow truck driver,
and submitted the forms. See Garay, 938 F.3d at 1112. And
even working off the majority’s misguided belief that
photographs are not permitted under the department’s
inventory policy, if the purpose of the inventory form is to
know what items are in the vehicle, it cannot be disputed that
the photographs did, in fact, produce an inventory of items
in the truck. It was not a perfect inventory. But the majority
agrees perfection is not required.
Contrary to the majority opinion, I do not discount the
relevance of the deputies’ compliance with inventory search
procedures as part of the overall bad faith inquiry. There is
nothing new in that basic point; we said it in Garay. See id.
at 1111. But what the majority is hyper-scrutinizing is not
the deputies’ broader compliance with the inventory search
policy, but their technical non-compliance with one aspect
of it: listing items on the form.
The majority holds that the officers’ failure to list items
on the form was “a material deviation” from department
policy. But in Garay, we said the opposite: “That the officer
did not complete the inventory list that ordinarily would be
completed as part of a department inventory search is not, on
its own, a material deviation from policy.” 938 F.3d at 1112
(emphasis added). The majority says that when the deputies
here did not fully fill out the form, “the ‘inventory’ that they
produced was incapable of serving the non-investigative
purposes of protecting an owner’s personal property and
 USA V. ANDERSON 59

protecting officers against accusations of theft or loss of an
owner’s property.” Setting aside that the photographs
accomplished those same objectives, Garay is again to the
contrary. In Garay, we affirmed that “the failure to complete
an inventory form does not invalidate an inventory search,”
and that to establish bad faith there must be “something else”
beyond the asserted non-compliance with an inventory
policy’s administrative requirements. Id. at 1111–12
(emphasis added; quotations omitted). The majority thinks
this is “untenable” as a matter of logic, but the logic here is
elemental: “a department’s policies do not define
constitutional rights.” Id. at 1111. By word and by deed, the
majority opinion holds otherwise.
The majority’s entire analysis therefore betrays the
supposedly soft question of “relevance” that it claims to be
resolving. By the majority’s reasoning, deputies’
compliance with the inventory search policy—and with the
specific requirement that items in a vehicle be written down
on a form—is now the be-all and end-all of the constitutional
analysis. How else to explain the pages upon pages of
dissection into what information was recorded on what form,
why the photographs are insufficient, and how different
documents that the deputies prepared do not expressly
reference others? Why else are we considering the supposed
constitutional significance of half empty bottles of cologne,
stray tools, cell phone chargers, and random trash?
Adjudging officer pretext on such trifles—and by that
metric, overturning valid convictions—is a grave mistake of
law.
C
Perhaps recognizing the infirmity of its analysis of the
CHP 180 form and photographs, the majority opinion briefly
60 USA V. ANDERSON

attempts to claim there are “other circumstances” in this case
that “suggest” improper pretext. The majority does not tell
us that this analysis is necessary to its decision, even though
our case law is clear that “[t]here must be something else”
besides non-compliance with department inventory search
policy to invalidate an inventory search. Garay, 938 F.3d at
1112 (emphasis added; quotations omitted). Even so, the
majority’s limited analysis of the “other circumstances” only
confirms the degree to which the majority is departing from
established law.
The majority first asserts that this case is unique because
by the time the deputies searched the truck, they “clearly
were suspicious that Anderson had engaged in criminal
behavior.” But the majority opinion completely ignores that
in the inventory search context, settled precedent holds that
“the mere presence of a criminal investigatory or dual
motive—one valid, and one impermissible—does not
render” the search invalid. Magdirila, 962 F.3d at 1157
(quoting Johnson, 889 F.3d at 1126); see also, e.g., Garay,
938 F.3d at 1112; United States v. Bowhay, 992 F.2d 229,
231 (9th Cir. 1993); United States v. Feldman, 788 F.2d 544,
552 (9th Cir. 1986), as amended. As we said in Garay,
“[g]iven the circumstances leading up to the search, the
officers no doubt expected to find evidence of criminal
activity inside the vehicle[,] [b]ut that expectation would not
invalidate an otherwise reasonable inventory search.” 938
F.3d at 1112. The test is not whether officers had a criminal
investigatory purpose, but whether this was their “sole
purpose.” Bertine, 479 U.S. at 372 (emphasis added). This
test is not remotely met here. In chastising officers for their
entirely human and permissible dual purpose, the majority
opinion contravenes clearly established law.
 USA V. ANDERSON 61

The majority also claims that this case is different from
prior cases because the deputies did not arrest Anderson until
after they completed the inventory search. Some past
inventory search cases did indeed involve post-arrest
searches. But many other cases have upheld inventory
searches when they were conducted before the defendant
was arrested—just like here. In Magdirila, for instance, the
officers performed the inventory search while the defendant
was detained, only arresting him after finding drugs in the
car. 962 F.3d at 1154–55. This search-preceding-arrest fact
pattern is true of other cases upholding inventory searches.
See, e.g., United States v. Rivera, 988 F.3d 579, 580–81 (1st
Cir. 2021) United States v. Nevatt, 960 F.3d 1015, 1018–19
(8th Cir. 2020) (per curiam); United States v. Mundy, 621
F.3d 283, 286 (3d Cir. 2010); United States v. Maier, 691
F.2d 421, 422 (8th Cir. 1982).
The majority ironically claims that the Supreme Court’s
decision in Opperman supports its sequencing theory, but
there too officers conducted the inventory search before
making the arrest. See Opperman, 428 U.S. at 366–37
(describing how an inventory search was conducted and
“[r]espondent was subsequently arrested”). To be sure, the
search in Opperman was conducted after the car was
impounded and the owner not present. Id. at 375. But the
Supreme Court certainly did not hold this was a necessary
sequencing of things, or that this sequencing mattered at all.
Once again, the majority is taking the facts of a case and
implying a legal rule that does not exist.
In short, the majority cites no case inferring pretext from
the ordering of the inventory search vis-à-vis the arrest, for
the likely reason that nothing about that sequencing is so
inevitably revealing. The majority seems to imply that
officers would be motivated to conduct an inventory search
62 USA V. ANDERSON

to enable an arrest. But if officers had already arrested a
person, one could imagine them rummaging through his
vehicle to bolster the arrest just made or out of a settled belief
that the defendant was a criminal wrongdoer. Courts have
upheld inventory searches regardless of whether the arrest
was made before or after the inventory search, underscoring
that no single inference from the ordering of events is more
appropriate than the other.
Equally misplaced is the majority’s focus on the fact that
deputies conducted the search “almost immediately” after
deciding to impound the vehicle, before towing Anderson’s
truck. The decision to tow here was no afterthought. It was
made at the outset, with deputies telling Anderson they were
going to have his vehicle towed before they began searching
it. That the deputies conducted the inventory search soon
after deciding to impound the truck is also not indicative of
any kind of nefarious intent on the deputies’ part. To the
extent the majority is suggesting that deputies had to call in
the tow before doing anything else, no law or departmental
policy required that. See United States v. Woolbright, 831
F.2d 1390, 1395 (8th Cir. 1987) (“Reasonableness, and not
any rigid chronological formula, is the hallmark of a proper
inventory search.”). And once Anderson’s vehicle could be
properly impounded, nothing required the officers to wait
around before conducting the inventory search. The truck
was parked on a stranger’s driveway at night in a residential
neighborhood. The deputies could decide it would be best
to resolve the situation as quickly as possible.
In addition, and although the majority gives it little play,
the government has a legitimate interest in conducting
inventory searches to promote safety, see Bertine, 479 U.S.
at 372; Cooper v. California, 386 U.S. 58, 61–62 (1967), and
no rule of law prevented deputies from furthering that
 USA V. ANDERSON 63

interest in a prompt manner. In this case, that interest was
fully validated: deputies found a loaded gun with the safety
turned off. It is entirely unclear why the majority is implying
it would have been better if the readied firearm had remained
undetected in the truck for longer, including until the tow
truck driver arrived. See Feldman, 788 F.2d at 553
(upholding inventory search when it “ensure[d] the
immediate protection of the public’s safety”).
The majority cites our decision in Johnson as an example
of a case where the search was conducted after the tow was
ordered, see 889 F.3d at 1123, the appropriate ordering of
things, in the majority’s view. It is not clear that the
majority’s description of the facts of Johnson is even
accurate (the case made nothing of the supposed distinction
that the majority finds relevant). But in Johnson, we
determined (based on damning officer admissions) that the
challenged search was pretextual. Id. at 1127–28. This only
confirms that the majority is drawing entirely unwarranted
significance from the fact that deputies searched the truck
before ordering the tow.
The same can be said of the majority’s reliance on the
fact that deputies “did not remove or otherwise secure
Anderson’s personal property for safekeeping.” Here, of
course, the property was secured: it was kept in the vehicle,
and the majority does not suggest any property was lost. Nor
were officers required to remove the property from the car.
In a case about an allegedly unlawful search, it is somewhat
ironic for the majority to be recommending that the property
be more intrusively seized as well. But the basic answer to
this, as with so much of the majority opinion, is that the
Fourth Amendment is not an edict of inventory search
etiquette. The deputies certainly could have removed the
64 USA V. ANDERSON

items from the truck. But they did not act in bad faith by not
doing so.
Of course, the real tell of the entire last part of the court’s
opinion is that even the majority admits that “by
themselves,” the “other circumstances” it points to “have
limited force.” The majority nonetheless thinks these “other
circumstances” have more than limited force here because
“Anderson was secured in the back of a patrol car and there
was no immediate exigency related to securing the truck and
its contents.” But “immediate exigency” is not a
requirement for an inventory search. And there clearly was
some exigency here: the car was blocking a random person’s
home in the middle of the night and a tow truck was coming.
I fail to understand why the majority is insisting that a truck
containing a loaded gun with the safety turned off first be
transported to an impound lot, where it could become lost or
stolen or present any manner of danger. Nor can we infer
pretext from the fact that the deputies detained Anderson.
The detention was quite understandable: Anderson had just
fled from police during a lawful traffic stop, requiring a
deputy to stop him at gunpoint.
“In the Fourth Amendment context, the facts matter,” the
majority intones. But what guidance does today’s opinion
give when facts that have concededly “limited force” take on
outsized significance based on events that, from a Fourth
Amendment perspective, are themselves otherwise
unremarkable? The majority’s “other circumstances” are the
kind that occur every day in the field. They have never been
regarded as evidence that officers engaged in a pretextual
inventory search.
And if we need further proof of that, the majority’s own
analysis confirms it. For all the discussion of “other
 USA V. ANDERSON 65

circumstances,” by the logic of the majority’s decision, if the
deputies had just listed more items on the inventory form,
taken better photos, or referenced the photos in the
“remarks” section of their write-up, none of these “other
circumstances” would matter: the search would apparently
be proper. That only underscores the infirmity of the
analytical foundation on which the court’s opinion rests.
* * *
In imposing new constitutional prohibitions premised on
hairline distinctions, the court’s opinion breaks with
established precedent, replacing Fourth Amendment
reasonableness with a new matrix of judicially created
inventory search rules unmoored from the traditional bad
faith inquiry. Vexing for the courts who will need to apply
it, the majority’s decision will prove even more unfortunate
for communities that depend on the even-handed
enforcement of the criminal laws.
 Appendix A
CHP 180 Form
3-ER-359
 (362 of 408)
Case 5:20-cr-00071-RGK Document 23-13 Filed 06/29/20 Page 2 of 3 Page ID #:219

3-ER-359

3-ER-359
 Appendix B
Photographs of Anderson’s Truck
3-ER-362, 3-ER-366, 3-ER-370, 3-ER-374, 3-ER-378