N.D.Iowa: No standardized criteria for inventory; this was a search

Having no DL in Iowa authorizes impoundment, but the statute doesn’t provide any criteria to control over discretion. Here, there was no justification for impoundment, and the officer essentially admitted that the defendant’s refusal to consent to a search factored in to his decision. The evidence should be suppressed because this was an unreasonable search. United States v. Himes, 2013 U.S. Dist. LEXIS 181970 (N.D. Iowa December 30, 2013):

In short, for impoundment to be reasonable under Supreme Court and Eighth Circuit precedent, discretionary decisions to impound a vehicle must be guided by some degree of standardized criteria unless the reason for impoundment falls clearly within law enforcement’s community caretaking or public safety functions. In exercising his or her discretion within those standardized criteria, the officer’s decision to impound must be based on legitimate concerns related to the purposes of an impoundment. This “ensure[s] that impoundments and inventory searches are not merely a ruse for general rummaging in order to discover incriminating evidence.” Arrocha, 713 F.3d at 1163.

. . .

The statute simply gives law enforcement the option to impound a vehicle when the driver cannot provide proof of insurance. It offers no guidance as to when it might be appropriate to select that option. See Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (“the decision to impound pursuant to the authority of a city ordinance or state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment.”). This is precisely why standardized criteria are needed to “ensure that impoundments and inventory searches are not merely a ruse for general rummaging in order to discover incriminating evidence.” Kimhong Thi Le, 474 F.3d at 514.

No such criteria exist here. Miller agreed that each Algona police officer is free to make impoundment decisions based on his or her own personal criteria. He testified that it is his policy to impound a vehicle when there are multiple infractions, meaning two or more. However, when given examples of possible combinations of infractions, Miller acknowledged that his “multiple infraction” rule is not exactly clear-cut. For example, if one of the two infractions involves a broken taillight or a cracked windshield, he would not impound the subject vehicle. Thus, Miller’s own personal impoundment policy, formulated with no guidance from his department, includes his purely-subjective determination as to which infractions are serious enough to count towards the two or more that will cause him to select impoundment. Making matters worse, there is no evidence that his reasons are based on legitimate concerns related to the caretaking or public safety functions.

This case presents the precise situation that the “standardized criteria” requirement is intended to prevent. Miller exercised unlimited discretion with no guidance or criteria in place that could protect against a pretextual impoundment undertaken for the purpose of searching for incriminating evidence. Nothing in this record provides any assurance that the impoundment occurred for legitimate, non-investigatory reasons. It is undisputed that Miller suspected criminal activity based on his initial encounter with Himes and Owens at the convenience store. After learning of the expired registration and executing the traffic stop, Miller almost immediately sought permission to search the vehicle. Miller “thought it was weird,” and considered it to be suspicious, that Himes refused to give consent.FN7

7 I am troubled by the fact that a law enforcement officer would form a suspicion based on an individual’s refusal to consent to a search. The law is quite clear – as it should be – that a refusal to give voluntary consent cannot form the basis of a reasonable suspicion under the Fourth Amendment. See, e.g., Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); United States v. White, 890 F.2d 1413, 1417 n. 4 (8th Cir. 1989); United States v. Santos, 403 F.3d 1120, 1125-26 (10th Cir. 2005) (“If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections.”).

This case is indicative of an apparent trend of most courts, but regretfully not all, to be sensitive to the pure fiction that is an inventory search. If there is any real argument it was a search for evidence, it should be suppressed. Almost all are, and they are only sustainable because there was a standardized process that was followed. Many LEOs don’t even attempt to follow the process.