D.N.M.: Arrest on warrant in car timed to facilitate pretextual inventory; suppressed

Officers had an arrest warrant for defendant, so they waited until he left his house, stopped him a half mile away and conducted an inventory of his car and had it towed. The court finds the inventory pretextual because it had nothing to do with his offense, and the arrest seemed timed to create the excuse for inventory. They knew where he lived so close, and the car could have been taken back there. United States v. Chavira, 2015 U.S. Dist. LEXIS 175633 (D.N.M. Oct. 6, 2015):

II. Vehicle Impoundment and Inventory Searches

The Tenth Circuit recently clarified the constitutional limits imposed on vehicle impoundments and the inventory searches conducted incident thereto. In United States v. Sanders, the court held “that impoundment of a vehicle located on private property that is neither obstructing traffic nor creating an imminent threat to public safety is constitutional only if justified by both a standardized policy and a reasonable, non-pretextual community-caretaking rationale.” United States v. Sanders, 796 F.3d 1241, 2015 WL 4665653, at *7 (10th Cir. Aug. 7, 2015) (emphasis added). The panel elaborated that while “[a]scertaining whether an impoundment is justified by a reasonable and legitimate, non-pretextual community-caretaking rationale is not an easy task,” certain factors may prove useful to district courts, including, “(1) whether the vehicle is on public or private property; (2) if on private property, whether the property owner has been consulted; (3) whether an alternative to impoundment exists (especially another person capable of driving the vehicle); (4) whether the vehicle is implicated in a crime; and (5) whether the vehicle’s owner and/or driver have consented to the impoundment.” 796 F.3d 1241, Id. at *8. Given the Tenth Circuit’s express statement that “[u]nder [the] holding [in Sanders], either failure alone would be sufficient to establish unconstitutionality,” and therefore mandate suppression, the Court will begin its analysis with the “community-caretaking” prong, which it believes is dispositive in the instant case. 796 F.3d 1241, Id. at *1.

A straightforward application of the factors articulated by the Tenth Circuit reveals that the impoundment of the Monte Carlo and subsequent inventory search thereof were unconstitutional. First, the Monte Carlo, like the automobile in Sanders, was appropriately parked in a private lot adjacent to several businesses. See 796 F.3d 1241, id. at *9. See also Doc. 34 at 15. Second, BPD officers made no effort to consult with the owner of the parking lot, the managers of any of the businesses surrounding the lot, or, indeed, with anyone at all, regarding the possibility of leaving the vehicle where it had been parked. To the contrary, Officer Valdez agreed that he “called right away for a tow truck” after arresting Chavira without assessing the feasibility of securing the Monte Carlo in the parking lot. Id. at 36. Moreover, the Court is not persuaded by the government’s argument that because there were “several businesses nearby” it is “unclear … how Officer Valdez would have ascertained the identity of the owner.” Doc. 40 at 6. Plainly, Officer Valdez, or any of the other BPD officers that eventually arrived at the scene, could have inquired of the relevant store personnel who owned the lot or what provision had been made for its management.

Third, despite the government’s protestations to the contrary, there were several alternatives to impoundment available. In addition to securing the vehicle in place, the officers could simply have called a family member to retrieve the automobile from the private lot. This option appears particularly feasible given that Officer Valdez watched Defendant leave his home in the Monte Carlo and therefore knew that the location from which the vehicle was towed was a mere halfmile from that residence; patently, a relative or friend could have walked to the lot and taken custody of the car. See, e.g., Doc. 37, Appendix A. Indeed, given the circumstances of this case, placing a phone call to Chavira’s home may well have ensured removal of the Monte Carlo more quickly than could have been achieved by calling a tow service.

Fourth, Defendant was arrested on a warrant pursuant to a New Mexico criminal complaint charging Chavira with various drug offenses that, insofar as the Court is aware, in no way implicate the Monte Carlo impounded in this case. See Doc. 37 at 7. Fifth and finally, there is no suggestion whatsoever that either Defendant or his son consented to the impoundment of the vehicle. As none of the five factors supports Officer Valdez’s unilateral and summary decision to impound the Monte Carlo, the Court finds that the impoundment and attendant inventory search were unconstitutional and that any evidence obtained therefrom must be suppressed. Having reached this conclusion, the Court need not discuss either the BPD standard operating procedure or the mechanics of the inventory search itself.