Impoundment policy on any custodial arrest was invalid where vehicle could have been left

The defendant was arrested, and his vehicle was impounded under a city police policy for impoundment on any custodial arrest. The policy is invalid because it allows impoundment with complete discretion of the officer. [The fact the policy was written does not end the inquiry; it starts there.] United States v. Osborne, 489 F. Supp. 2d 860 (C.D. Ill. 2007):

The Government argues that since the Police Department has adopted a set of written, standard guidelines and because those guidelines were followed when the officers impounded and searched Osborne’s vehicle, the impoundment and search were valid. The Court disagrees.

The facts of the instant case do not meet any of the conditions that would trigger a valid tow under the “General Guidelines” subsection of the Police Department’s tow policy or under the officers’ “community care-taking” functions. Therefore, the instant case is distinguished from U.S. v. Cherry. In Cherry, the court found that the vehicle did present a safety hazard because it was located on the side of an interstate highway, and the [*9] court’s analysis did not proceed beyond that point. 436 F.3d 769, 773-774 (7th Cir. 2006). Osborne’s vehicle was not left on the street and did not present any sort of safety hazard; it was parked on the private property of an autobody shop and did not present any hazards to the public.

Therefore, this situation must fall under the “Custodial Arrest” subsection. While the provisions of the “Custodial Arrest” subsection technically constitute a policy, for all practical purposes, it is no policy at all. The subsection sets forth no criteria by which the decision to impound is to be made. Essentially, it provides for unfettered police discretion in making impoundment decisions. A police department tow policy cannot delegate enforcement of the Fourth Amendment to the discretion of police officers.

Defendant filed a motion to suppress a warrantless entry, which the government first opposed and then assented to. The arrest inside, however, was lawful. Later, defendant disputed money found in his pants at booking, pants he put on when arrested after the entry the government conceded was unlawful. The court applied the general rule that book-in searches were valid, unless manipulated, and here it was not. United States v. St. Pierre, 488 F.3d 76 (1st Cir. 2007):

Therefore, the circumstances by which the pants came to be on St. Pierre are important. If it were the case that the police, knowing that the evidence found in the apartment search was likely to be suppressed, conspired to stash the $380 in the pocket of a pair of pants and then coerce St. Pierre into wearing them, this would be a very different case. Here, however, St. Pierre has not alleged any bad faith by the agents, nor is there any evidence of such. Furthermore, having the consent of the girlfriend to search the apartment, the agents had no reason to believe that the evidence they discovered would be suppressed. Finally, given St. Pierre’s condition, it was entirely reasonable for all parties, himself included, to want him to be given pants, and there is no evidence that he protested or asked for a different pair of pants. Thus, under these somewhat unusual circumstances, a search of St. Pierre’s pants at booking was proper, and we see no error in the denial of the motion to suppress the $380.

Dog bite on arrest is not always excessive force. Balancing the three Graham factors on excessive force, the court concludes that the force used in this case was reasonable under the totality of the circumstances. Here, the plaintiff’s injuries were exacerbated by his efforts to flee the dog and extricate himself from the first bite. Pace v. City of Palmetto, 489 F. Supp. 2d 1325 (M.D. Fla. 2007):

While Pace’s injuries were severe, the undisputed material facts demonstrate that the use of K-9 force and the severity of Pace’s injuries were the direct result of Pace’s decision to flee and hide in the dark, densely vegetated mangrove swamp to avoid apprehension. Brix attempted to apprehend Pace in the manner in which he had be trained, namely, the bite and hold method. (Ahler Depo I, p. 207). Under this method, a dog is trained to subdue a suspect by biting his arm or leg, but if a leg or arm is unavailable, the dog is trained to apprehend the suspect by biting any area of his body exposed. If the suspect breaks free, the dog is trained to reestablish the bite. As a result, suspects often suffer serious injury from multiple bites received during the course of an apprehension. Kerr v. City of West Palm Beach, 875 F.2d 1546, 1550 (11th Cir. 1989). The bite and hold training method is not unconstitutional. Nor is it objectionable unreasonable. See Kerr, 875 F.2d at 1550 (recognizing the constitutionality of using police dogs trained in the bite and hold method when an officer is placed in a threatening situation); see also Kuha v. City of Minnetonka, 365 F.3d 590, 599-600 (8th Cir. 2004) (“mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation” and does not constitute deadly force).