United States v. Sylvester ( 2021 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-2127
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    RICHARD SYLVESTER,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. D. Brock Hornby, U.S. District Judge]
    Before
    Lynch, Thompson, and Barron,
    Circuit Judges.
    Jamesa J. Drake, with whom Drake Law LLC and Richard S. Berne
    were on brief, for appellant.
    Julia M. Lipez, Assistant United States Attorney, with whom
    Halsey B. Frank, United States Attorney, was on brief, for
    appellee.
    April 2, 2021
    LYNCH, Circuit Judge.          Richard Sylvester was convicted,
    pursuant   to    a    conditional      plea    agreement,   on    one    count   of
    possession with intent to distribute various controlled substances
    and one count of possession of a firearm in furtherance of a drug-
    trafficking crime in violation of federal law.               Sylvester appeals
    the denial of his motion to suppress a firearm and drug evidence
    seized pursuant to a search warrant for the car he was driving
    when he was arrested            on a   different      and outstanding     federal
    warrant.   He argues that the search warrant for the car was invalid
    because it was issued based on evidence discovered during an
    inventory search, which was, he alleges, itself unlawful because
    he argues the initial impoundment of the car was unlawful after he
    was arrested along a busy highway at night.                 The district court
    rejected these arguments and we find no error.
    I.
    A.   Facts
    The parties stipulated to the facts contained in the
    various exhibits submitted to the district court, which establish
    the following.
    1.        The Arrest and Impound
    In or around May 2017, a federal warrant was issued for
    Sylvester's     arrest    for    suspected     drug    activity   said    to   have
    occurred in August 2016.         Around 7:30 P.M. on Friday, May 19, 2017,
    Maine Drug Enforcement Agency ("MDEA") Special Agent Jacob Day
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    ("Agent Day") was driving off duty along Route 1A in Dedham, Maine.
    Route 1A is a major highway that runs along the coast of Maine to
    the Canadian border.    Agent Day passed a black Cadillac Escalade
    driven by Sylvester.    Sylvester was alone in the car.    Agent Day
    recognized Sylvester and was aware of the outstanding federal
    warrant for his arrest from speaking with a United States Drug
    Enforcement Agency ("DEA") agent a few weeks before.
    Agent Day ran a registration check on the Escalade's
    plate number which revealed that the owner of the car was Hailee
    Goodwin, who lived in Hancock, Maine.    She was later determined to
    be Sylvester's girlfriend.     Agent Day called the DEA agent with
    whom he had previously spoken and she confirmed that the federal
    arrest warrant was still active and that Sylvester should be
    arrested.
    Agent Day contacted Lieutenant Tim Cote ("Lt. Cote") of
    the Hancock County Sheriff's Department to request the arrest of
    Sylvester pursuant to that warrant.     At some point, Agent Day also
    requested that a K-9 unit be brought in to conduct a sniff test of
    the exterior of the Escalade.
    Acting on the federal warrant and at Agent Day's request,
    Lt. Cote went with Sheriff's Deputies Corey Bagley ("Dep. Bagley")
    and Jeffrey McFarland ("Dep. McFarland") and another officer to
    Route 1A to locate the Escalade.         They stopped the Escalade
    sometime after 7:30 at night along Route 1A in or near Ellsworth,
    - 3 -
    Maine.   Sylvester, the sole occupant, was told to get out of the
    car and was arrested.
    Videos of the traffic stop recorded on the officers'
    dashboard cameras show that Route 1A is and was on that Friday
    night a well-trafficked, two-lane highway, and that the parked
    Escalade was sticking out into the traffic lane so that the cars
    passing by had to swerve into the oncoming traffic lane to avoid
    it.   During Sylvester's arrest, Dep. Bagley found two knives, a
    pair of brass knuckles, and a wad of $2,799 in cash on Sylvester.
    Sylvester told the officers there were no other weapons in the car
    (that proved not to be true).          He also told them he was headed "up
    the   road"    to   meet   Goodwin's    mother,   but   not   Goodwin,   at   a
    McDonald's.     There is no evidence as to how far away the McDonald's
    was or whether Goodwin's mother was authorized by Goodwin to drive
    the car or whether Goodwin's mother was available to come retrieve
    the Escalade promptly or how she would do so. Nor is there evidence
    that Sylvester specifically requested that Goodwin's mother or
    anyone else come remove the stopped car.
    The officers transported Sylvester to the Hancock County
    Jail where he was booked on the federal arrest warrant.                   The
    Hancock County officers did not inform Sylvester that he could
    contact someone, nor did he make any such request.             They also did
    not ask him whether he had a preferred towing service.
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    During the stop, Lt. Cote requested the Maine State
    Police to do the K-9 sniff as MDEA Agent Day had requested.                   He
    was told that it would take some time because the K-9 unit was
    traveling from a different county.             Lt. Cote authorized a towing
    service to remove the car from the side of the highway and take it
    to an impound facility in Hancock.
    2.     The Impound and Inventory Policies
    The stop of the Escalade was at the request of a MDEA
    agent and a federal DEA agent who are not subject to the Hancock
    County     Sheriff's     Department's      policies,    but     Hancock    County
    Sheriff's Department officers made the stop and are subject to
    those policies.1        There are two Hancock County policies that are
    relevant    to   this    appeal:     the   "TOWING/WRECKERS"      policy    ("the
    Impound     Policy")     and   the    "VEHICLE    INVENTORY"      policy   ("the
    Inventory Policy").       The Impound Policy authorizes law enforcement
    to   tow   and   to   store    a   vehicle    under   certain    circumstances,
    including     where     the    vehicle     "[i]mped[es]    or     [e]ndanger[s]
    [t]raffic."      The Impound Policy specifies that "[n]o vehicle shall
    be stopped or left unattended in such a manner as to impede or
    render dangerous the use of the highway by others, except in cases
    of mechanical breakdown, law enforcement emergency or traffic
    crash," and "[i]f such disabled vehicle is not promptly removed
    1   The government has assumed and has not argued to the
    contrary that the Hancock County policies apply.
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    the law enforcement officer may order the vehicle towed at the
    expense of the owner."     The policy further states that
    [w]henever possible, owners or operators of
    vehicles for which towing is required will be
    encouraged to specify a towing service of
    their own choice.     When required, the law
    enforcement officer will summon a tow truck,
    unless a specific request for a particular tow
    service has been made by the owner or operator
    of the vehicle to be towed, and if such tow
    service is reasonabl[y] available.
    The policy reiterates that "[w]hen a wrecker service is
    needed,   the   law   enforcement    officer   shall   ask   the   vehicle
    owner/operator if they have a preference of wrecker service," and
    if they do, the law enforcement officer will arrange for that
    tow/wrecker service to be contacted. But "[w]hen a wrecker service
    is NOT at the owners' request, [it] would be considered a law
    enforcement tow."     An inventory search is required of all vehicles
    taken into police custody because of a law enforcement tow "if the
    vehicle is unlocked prior to the wrecker towing the vehicle" or
    "if the wrecker operator has to open the vehicle prior to towing
    it."
    The Inventory Policy, in turn, provides that before
    taking a vehicle into custody "[w]here the owner or operator in
    possession of a vehicle is arrested . . . , and the vehicle is not
    required as evidence and need not be impounded for any other
    reason, the law enforcement officer" shall
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    [a]dvise the owner or operator that they may
    release the vehicle to a licensed driver who
    is willing to assume full responsibility for
    the vehicle and all property contained
    therein. This person must be at the scene or
    be able to arrive prior to the law enforcement
    officer leaving. . . .       If the owner or
    operator chooses not to release the vehicle to
    a third party, the vehicle shall be removed by
    an agency-dispatched wrecker. A[n] inventory
    will not be required if not impounded.
    Where the police have taken a vehicle into police custody
    as a law enforcement tow, and so requiring an inventory of the
    vehicle pursuant to the two policies, the Inventory Policy explains
    that
    [t]he inventory will be completed by the law
    enforcement officer ordering the tow and will
    include the opening of closed containers and
    the listing of their contents. The purpose of
    the inventory is not to locate evidence of
    criminal   activity,   but  to  protect   the
    owner[']s property, protect the agency from
    subsequent claims of loss or stolen property,
    and to protect law enforcement officers from
    dangerous instrumentalit[ies].
    Among its standard procedures for conducting an inventory, the
    Inventory    Policy   prescribes    that   "[t]he   scope   of   such   an
    examination for personal property must be restricted solely to
    those areas where the person would ordinarily be expected to store
    or inadvertently leave his belongings, such as the floor, glove
    compartment, door pockets, trunk, dashboard, and on, under, and
    behind the seats."
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    3.   The Inventory Search and Search Warrant
    At the impound facility, the Maine State Police K-9 unit
    conducted a sniff of the exterior of the Escalade.   The police dog
    did not alert to any contraband.    Lt. Cote, Dep. Bagley, and Dep.
    McFarland then conducted an inventory search of the car.     During
    the inventory search, the officers found a wallet containing
    Goodwin's driver's license in the backseat area, a cell phone in
    the middle console, and a backpack in the front passenger area.
    Inside the backpack, the officers found a loaded 9 mm handgun, a
    plastic bag containing eight bundles of what the officers suspected
    was heroin, and another plastic bag containing four chunks of a
    white hard substance which the officers suspected was cocaine.   At
    that point, the officers agreed to stop the inventory search and
    contact Agent Day so that the MDEA could obtain a search warrant
    for the car.     They left the evidence in the car, secured the car
    with evidence tape, and locked it in a garage at the impound
    facility.
    On Sunday, May 21, 2017, two days after Sylvester had
    been arrested, another MDEA special agent listened to a recorded
    phone conversation made that day from the Hancock County Jail, in
    which Sylvester was heard telling a woman "he had 10 grand in the
    vehicle and it would be good if Hailee could get the vehicle out
    of impound."
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    On Monday, May 22, 2017, Agent Day listened to the same
    recorded conversation.       That day, Agent Day applied for and
    obtained a search warrant for the Escalade which authorized the
    search of the entire car for drugs, firearms, evidence of drug
    trafficking, and cell phones.     In the affidavit submitted with the
    warrant application, Agent Day described the circumstances of
    Sylvester's arrest on the federal warrant, the seizure of the cash,
    the negative K-9 sniff, the handgun and suspected drugs discovered
    in the backpack in the front of the car during the inventory
    search, and the recorded jail call in which Sylvester stated there
    was ten grand in the car.         The officers executing the search
    warrant   of   the   Escalade   recovered   a   loaded   9   mm   handgun,
    ammunition, methamphetamine, heroin, cocaine, drug paraphernalia,
    a cell phone, and suspected drug ledgers.        They did not find the
    money Sylvester mentioned in the jail call.
    B.   Procedural History
    In July 2017, Sylvester was indicted on one count of
    possession with intent to distribute cocaine, heroin, and five
    grams or more of methamphetamine, in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(B), and one count of possession of a firearm
    in furtherance of a drug-trafficking crime, in violation of 
    18 U.S.C. § 924
    (c)(1)(A). In September 2017, Sylvester filed a motion
    to suppress the evidence seized from the car he was driving at the
    time he was arrested, challenging the lawfulness of the impound
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    decision and the inventory search and the issuance of the search
    warrant.2
    The district court held argument based on the stipulated
    facts on the motion to suppress on February 14, 2018.                Defense
    counsel argued that the officers were "towing [the car] for an
    investigatory purpose" and were "not towing it under the community
    caretaking    function."      Defense    counsel    also   argued   that    the
    officers' conversation captured by the dash-cam videos "is all
    driven by, we want to search this vehicle, can we figure out a way
    to lawfully do that," rather than "conceptualizing it as [] this
    [is] an impoundment and an inventory tow because we don't have
    somebody else to drive it away."          The court responded that "your
    argument is subterfuge" and defense counsel stated "[i]t is a
    subterfuge, and I think there is an investigatory purpose to taking
    this vehicle from the side of the road to that tow yard."            Defense
    counsel     argued   that   this    investigatory   purpose   was   in     part
    evidenced by the officers' failure to fully comply with the Impound
    and Inventory Policies.            But defense counsel did not ask the
    district court to make a finding as to the reasons the officers
    deviated from the policies by not notifying Sylvester that he could
    2    The government did not contest Sylvester's standing to
    challenge the impound and searches of the car based on an affidavit
    he submitted stating that Goodwin authorized him to drive the
    Escalade.
    - 10 -
    contact a third party, including a preferred towing service, to
    remove the car from the highway.
    On February 15, 2018, the district court orally denied
    Sylvester's motion to suppress.             After concluding there was no
    probable    cause   to   search   the     car   at   the   time   Sylvester   was
    arrested, the district court held that the officers were justified
    in impounding the car and inventorying its contents pursuant to
    the community caretaking exception to the warrant requirement.                 It
    found that the officers' cruisers' "video cams show that" "[t]his
    was a stop and arrest on a busy highway in the breakdown lane."
    The court also found "[t]here was no other driver on the scene"
    and "the car needed to be moved" "because of its circumstances on
    the highway," which provided "solid noninvestigatory reasons for
    moving the car."
    Turning to the alleged violations of the Impound and
    Inventory    Policies,    the     court    concluded       that   the   "deputies
    violated the Hancock County policies by not trying to reach out to
    [the defendant's girlfriend], give her the choice of taking the
    vehicle if she could before they left the scene, or telling
    Sylvester that he had first choice of what towing service to use,
    but that they did not violate the policy in actually removing the
    vehicle."
    Nonetheless, the court made findings that the policies
    authorized the impound in this situation where the driver had been
    - 11 -
    arrested, the car was left dangerously along the side of the road,
    and there was no one immediately available to remove the car.   And
    it found
    there's no evidence that [] Sylvester asked
    for an alternative to impoundment, [and] the
    record doesn't make clear how it even could
    have happened.     The car belonged to the
    girlfriend . . . who was not on the scene.
    And on this record there is no evidence of a
    viable alternative to getting someone to the
    scene to remove the car before law enforcement
    le[ft].
    After reviewing First Circuit case law, the district
    court found that "there's no subterfuge in the need to move the
    car off the highway."   It found that "there was an investigatory
    motive for the impoundment[ which was] clear from listening to the
    dash cam audio," but further concluded that the "co-existence of
    investigatory and caretaking motives" "d[id] not irreparably taint
    the impound" under First Circuit law.
    Having held the initial impound of the car was valid,
    the district court found that the subsequent inventory search was
    conducted "according to established policy" and so concluded it
    was also valid.   The district court also held that regardless of
    whether there was a policy violation during the inventory search,
    there was probable cause to issue the search warrant for the car
    even without the information learned from the inventory search
    based on the federal arrest warrant, the circumstances of the
    - 12 -
    arrest, and the jail call regarding the purported ten grand in the
    car.
    Sylvester entered into a conditional plea agreement with
    the government in October 2018, subject to his ability to appeal
    the denial of his motion to suppress, and was sentenced in October
    2019 to seventy-two months' imprisonment.3 This timely appeal from
    his conviction followed.
    II.
    Sylvester argues the district court's denial of his
    motion to suppress was error.     He argues that (1) the officers'
    decision to impound the car was unlawful because it was done solely
    for an investigatory purpose; (2) the subsequent inventory search
    was unlawful because it was tainted by the initial unlawful impound
    and the search warrant was not an independent source for the
    evidence discovered during that inventory search; and (3) the
    automobile exception to the warrant requirement did not justify
    the search of the car.4   To be clear, Sylvester does not argue that
    the initial stop of the car or his arrest were unlawful.
    3  Sylvester also pleaded guilty to one count of conspiracy
    to distribute controlled substances in a separate case and was
    sentenced to thirty months' imprisonment to be served concurrently
    with the sentence imposed in this case. That separate conviction
    and sentence are not being challenged here.
    4  The government conceded before the district court and on
    appeal that the inventory search and search warrant were valid
    only if the initial impound decision was also lawful.          The
    government also does not challenge the district court's
    - 13 -
    In reviewing the denial of a motion to suppress, "[w]e
    review factual findings for clear error and legal conclusion[s] de
    novo."    United States v. Coccia, 
    446 F.3d 233
    , 237 (1st Cir. 2006).
    "[W]e    will   uphold   a    denial       of   a   motion    to   suppress    if   any
    reasonable view of the evidence supports it."                  
    Id.
     (quoting United
    States v. Garner, 
    338 F.3d 78
    , 80 (1st Cir. 2003)).                       Where the
    evidence     of     record     is     subject        to      different    reasonable
    interpretations, "the district court's choice between competing
    inferences cannot be clearly erroneous."                  United States v. Hughes,
    
    640 F.3d 428
    , 437 (1st Cir. 2011).
    A.      The Impound Decision
    The district court found that the impoundment of the car
    and its removal from busy Route 1A was a proper exercise of the
    officers' community caretaking function.                  The community caretaking
    function    "is    one   of    the     various      exceptions      to   the    Fourth
    Amendment's       requirement       that    law     enforcement      officers       have
    probable cause and obtain a warrant before effecting a search or
    seizing property."       United States v. Rivera, 
    988 F.3d 579
    , 581
    (1st Cir. 2021) (quoting Boudreau v. Lussier, 
    901 F.3d 65
    , 71 (1st
    Cir. 2018)).      "Under that exception, law enforcement officers, in
    'their role as "community caretakers,"' may 'remove vehicles that
    determination that there was not probable cause to search the car
    under the automobile exception to the warrant requirement at the
    time the car was stopped and Sylvester was arrested.
    - 14 -
    impede traffic or threaten public safety and convenience' without
    obtaining a warrant."               
    Id.
     (quoting Boudreau, 901 F.3d at 72).
    Our law has been clear on this point for years.
    Pursuant    to    that   exception,     an     impound     decision    is
    constitutionally valid so long as it is reasonable under the
    totality of the circumstances.                  See Coccia, 
    446 F.3d at 238-39
    ;
    United States v. Rodriguez-Morales, 
    929 F.2d 780
    , 785-86 (1st Cir.
    1991).          The impound decision must be justified by a legitimate,
    non-investigatory purpose and cannot be "a mere subterfuge for
    investigation,            [but]    the    coexistence      of     investigatory        and
    caretaking motives will not invalidate the seizure."                        Coccia, 
    446 F.3d at 241
     (quoting Rodriguez-Morales, 
    929 F.2d at 787
    ); see also
    Colorado v. Bertine, 
    479 U.S. 367
    , 372 (1987); United States v.
    Del Rosario, 
    968 F.3d 123
    , 128-29 (1st Cir. 2020) ("To be clear,
    we are not saying that an improper subjective motive renders the
    community-caretaking              exception     inapplicable.");5         Boudreau,    901
    F.3d       at    72-73;    Rodriguez-Morales,        
    929 F.2d at 787
       ("[T]he
    impoundment of the [car] in the exercise of the troopers' community
    caretaking         responsibilities       was    amply     justified      on   objective
    5  The Court in Del Rosario held that an impound decision
    was invalid where there was no real objective justification for it
    pursuant to the officers' community caretaking function, such that
    the only conclusion was "that the seizure served no purpose other
    than facilitating a warrantless investigatory search under the
    guise of an impoundment inventory." 968 F.3d at 127-29.
    - 15 -
    grounds.    Hence, any speculation into the troopers' subjective
    intent would be supererogatory.").
    As to standardized procedures when impounding a vehicle,
    this Court has already held that
    it is inappropriate for the existence of (and
    adherence to) standard procedures to be the
    sine qua non of a reasonable impound
    decision[.] . . .
    . . . .
    . . . [S]tandard protocols have
    limited utility in circumscribing police
    discretion in the impoundment context because
    of the numerous and varied circumstances in
    which impoundment decisions must be made.
    Moreover, a police officer's discretion to
    impound a car is sufficiently cabined by the
    requirement that the decision to impound be
    based, at least in part, on a reasonable
    community   caretaking    concern   and   not
    exclusively on "the suspicion of criminal
    activity."   Accordingly, the impoundment of
    [the defendant]'s car did not violate the
    Fourth Amendment merely because there was no
    evidence that the impoundment was done
    pursuant to pre-existing police protocols.
    Coccia, 
    446 F.3d at 239
     (emphasis added) (citations omitted)
    (quoting Bertine, 
    479 U.S. at 375
    ).
    The district court, it is true, explicitly found that
    the officers were motivated in part by an investigatory purpose.
    But it went on to cabin that holding and also held that the officers
    clearly    had    a    legitimate   and    objectively    reasonable   non-
    investigatory purpose.        As it found, the car Sylvester was driving
    when he was stopped and arrested was on the verge of a busy highway.
    There   were     no   other   passengers   nor   anyone   else   immediately
    - 16 -
    available to remove the car.              Sylvester indeed never asserted that
    the   owner    of     the    car    was   nearby    or   that    anyone    else   could
    immediately retrieve the car.               Leaving the car on the shoulder of
    a heavily trafficked               highway was an obvious hazard to other
    drivers, especially on a Friday night with darkness approaching.
    Under these circumstances, the court did not err in
    holding that the officers clearly had a legitimate community
    caretaking justification for moving the car.                        See id. at 240
    ("Caselaw supports the view that where a driver is arrested and
    there is no one immediately on hand to take possession, the
    officials      have     a    legitimate       non-investigatory         reason    f[or]
    impounding the car." (quoting Vega-Encarnación v. Babilonia, 
    344 F.3d 37
    , 41 (1st Cir. 2003))); Rodriguez-Morales, 
    929 F.2d at 785
    (holding that the impound decision was reasonable where "leav[ing]
    an automobile on the shoulder of a busy interstate highway" after
    arresting the occupants would pose a threat to public safety).
    The     presence       of   both     investigatory     and       community
    caretaking      motives       does    not     render     unlawful   an     objectively
    reasonable decision to impound.               Coccia, 
    446 F.3d at 241
    .           And the
    officers were not constitutionally required to "select the least
    intrusive      way      of     fulfilling        their      community      caretaking
    responsibilities."           Rodriguez-Morales, 
    929 F.2d at 786
    ; see also
    Bertine,      
    479 U.S. at 373-74
    ;    Coccia,     
    446 F.3d at
    240   n.7
    (explaining that there is no Fourth Amendment requirement that
    - 17 -
    officers "provide [the defendant] with an opportunity to arrange
    for   someone    else   to    pick-up    the    car"   before    impounding    and
    inventorying it (citing Vega-Encarnación, 
    344 F.3d at 41
    )).                     The
    officers' failure to fully comply with the Impound and Inventory
    Policies with respect to the impoundment does not change this
    result.     See Coccia, 
    446 F.3d at 239
    .
    The defendant does argue that the sole purpose of the
    impound was investigatory, based on the fact that the officers
    violated aspects of the Hancock County Impound and Inventory
    Policies by not notifying him that he could request a third party
    to immediately remove the car and thus created the need for
    impoundment. See Coccia, 
    446 F.3d at 241
     ("[T]here were legitimate
    community       caretaking     justifications          for   impounding        [the
    defendant]'s      car   and     there     was     no   evidence       that    these
    justifications were merely pretext for an investigatory search.").
    But, Sylvester did not ask the district court to make a
    specific finding about why the officers did not comply with those
    aspects of the policies and none was made, thus precluding any
    such argument from having merit, even if we were to assume that it
    otherwise    might.6     And    that    failure    invokes      the   plain   error
    6   Because of the defendant's failure to request such a
    finding, we have no need to address who has the burden of proving
    pretext in this context.   We note that two other circuits have
    addressed the question in the same context or in similar contexts
    and held the burden is on the defendant.    See United States v.
    Orozco, 
    858 F.3d 1204
    , 1213 (9th Cir. 2017); United States v.
    - 18 -
    standard of review.   It is self-evident there was no plain error.
    See United States v. Takesian, 
    945 F.3d 553
    , 563 (1st Cir. 2019)
    (explaining that "if an error pressed by the appellant turns on 'a
    factual finding [he] neglected to ask the district court to make,
    the error cannot be clear or obvious unless' he shows that 'the
    desired factual finding is the only one rationally supported by
    the record below'" (alteration in original) (quoting United States
    v. Olivier-Diaz, 
    13 F.3d 1
    , 5 (1st Cir. 1993))).
    B.   The Inventory Search
    We also hold that the district court did not err in
    concluding that the subsequent inventory search of the car was
    lawful.   "The Fourth Amendment permits a warrantless inventory
    search if the search is carried out pursuant to a standardized
    policy," United States v. Richardson, 
    515 F.3d 74
    , 85 (1st Cir.
    2008) (citing Florida v. Wells, 
    495 U.S. 1
    , 3-4 (1990)), and "on
    the basis of something other than suspicion of evidence of criminal
    activity," Bertine, 
    479 U.S. at 375
    .   The district court did not
    clearly err in finding that, once the car was impounded, the
    inventory search of the car was conducted in accordance with the
    Hancock County Inventory Policy.   That policy states legitimate,
    Maestas, 
    2 F.3d 1485
    , 1489 (10th Cir. 1993); see also United States
    v. Magdirila, 
    962 F.3d 1152
    , 1157-58 (9th Cir. 2020) (applying
    Orozco's burden allocation rule to the inventory context); United
    States v. Johnson, 
    889 F.3d 1120
    , 1125-28 (9th Cir. 2018) (per
    curiam) (applying Orozco's burden allocation rule to the impound
    and inventory context).
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    non-investigatory purposes.    To the extent Sylvester argues that
    the inventory search itself was invalid because that search was
    also pretextual, that argument fails for the same reasons that his
    other pretext argument does.
    III.
    The   district   court    committed   no   error   in   denying
    Sylvester's motion to suppress.
    Affirmed.
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