CA9: Gov’t failed to prove necessity of impoundment of vehicle leading to inventory

The government failed to support inventory after impoundment by showing it was even necessary. All the record shows is the street names in Los Angeles where the vehicle was stopped, and including Google street maps in the brief is rejected as a method of supplementing the record on appeal. Because of the district court’s prejudicial comments about the suppression issue at the hearing, the case is remanded and will be reassigned to another judge for a new suppression hearing. United States v. Burgos, 550 Fed. Appx. 484 (9th Cir. 2013):

Our jurisprudence on the community caretaking exception is clear: the location of the traffic stop matters. In Cervantes, we held that the government failed to demonstrate that the community caretaking exception applied to the impoundment of the defendant’s car because the government presented no evidence that the vehicle impeded traffic, posed a safety hazard, or was vulnerable to vandalism or theft. 703 F.3d at 1141-42. Cervantes controls because the government relied solely upon the community caretaking exception and did not offer evidence required to justify applying that exception. Just as in Cervantes, here, the government presented no evidence that Burgos’s vehicle was “parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft.” Id. at 1141.

The only evidence the government offered concerning the location of Burgos’s vehicle was that Tellez observed Burgos exiting the freeway and “traveling northbound on Eagle Rock Boulevard, approaching El Paso Drive in Los Angeles,” before Tellez initiated the traffic stop. The articulation of street names tells the court next to nothing about the street where Burgos’s vehicle was stopped, the characteristics of the street, or where exactly Burgos pulled over on the street.

On appeal, the government attached to its brief Google Street View images that allegedly depict the intersection of Eagle Rock Boulevard and El Paso Drive. This was a vain attempt by the government to offer evidence not presented to the district court to demonstrate that impoundment was warranted by community caretaking concerns. We reject such an attempt to supplement the record. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (“Only the court may supplement the record.”)

The government failed to offer evidence to satisfy the community caretaking exception, and thus failed to establish that the impoundment of Burgos’s vehicle satisfied the exception to the Fourth Amendment’s warrant requirement. Because the “government failed to establish a community caretaking function for the impoundment,” the government “failed to establish the constitutional reasonableness of the seizure and subsequent inventory search.” United States v. Caseres, 533 F.3d 1064, 1075 (9th Cir. 2008).

We believe the appearance of justice would best be served by remand to another judge. See United States v. Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012) (identifying the preservation of the appearance of justice as a factor relevant to whether reassignment is appropriate). Here, the district court’s statements about the case at the suppression hearing raise questions about the court’s impartiality on remand. Moreover, the record below consists of approximately sixty-four pages of testimony, declarations, exhibits, legal briefing, and oral argument. Thus, reassignment on remand would entail minimal duplication of effort and waste, and these concerns would not outweigh the “gain in preserving appearance of fairness.” Id. (identifying the entailment of waste and duplication as a factor relevant to whether reassignment is appropriate).