CO: State didn’t prove necessity for impoundment of car for driving on a suspended DL

The state failed to prove that defendant’s driving on a suspended license justified impoundment and inventory of the car. The state didn’t offer evidence to show that defendant would drive off from the ticket or that he would imperil other drivers. There also was no offer to have someone else come and retrieve the car so it wouldn’t have to be towed. People v. Brown, 2016 COA 150, 2016 Colo. App. LEXIS 1488 (Oct. 20, 2016):

[*26] Jerking Mr. Brown’s inability lawfully to drive out from under the already shaky impoundment is appropriate because the prosecutor also did not present any evidence of generally accepted reasons to impound, such as that the car was in an unsafe location or impeding traffic. See Miranda, 429 F.3d at 866 (“An officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers.”); see also Thompson v. State, 333 Ark. 92, 966 S.W.2d 901, 905 (Ark. 1998) (“[I]t is permissible for an officer to impound and inventory a vehicle when the driver is physically unable to drive the car, and leaving it on the side of the road would create a safety hazard.”) (emphasis added); cf. People v. Trusty, 183 Colo. 291, 295, 516 P.2d 423, 425 (1973) (An inventory search was reasonable where the vehicle “was parked in a high-risk area, the parking lot of a tavern; it had out-of-state license plates; the whereabouts of its owner were unknown; and [defendant], who was intoxicated and subsequently placed under arrest, had voluntarily turned over the keys to the auto to the officer and invited a search of the vehicle.”).

[*27] Third, consider that the suppression hearing record is barren of any reason why Mr. Brown could not have called someone else to lawfully drive his car or summoned a tow truck himself, options that the officers did not extend to him. After all, because the police did not plan on arresting him, he would have needed to arrange for his own transportation. Those arrangements could have been as a passenger in his car, being driven by someone else, or sitting in the cab of a tow truck that he had summoned. Compare King, 572 S.E.2d at 521 (“[T]he owner of the vehicle[] was not taken into custody or removed from the scene and, although he could not personally drive the vehicle, the evidence failed to show he was unable to arrange for its removal to another location, or to safeguard his property.”), with Commonwealth v. Daley, 423 Mass. 747, 672 N.E.2d 101, 103 (Mass. 1996) (Impoundment of an unregistered and uninsured vehicle was reasonable because “the officers could not permit the continued operation of this illegal vehicle on the public roadways, nor could they leave the vehicle unattended on the shoulder of a busy main road.”). This lack of evidence leaves the impoundment teetering.

[*28] Given all this, one might well ask whether the impoundment can be saved from toppling under its own weight by the police officer’s testimony that Mr. Brown had “already demonstrated that he is going to drive his vehicle on a suspended license.” At first blush, impounding a vehicle to prevent a driver with a suspended license from operating it would further public safety.

[*29] But the prosecutor did not rely on this testimony below, and on appeal, the Attorney General does not do so either. See Syrie, 101 P.3d at 223 (Where the “prosecut[ion] chose not to argue that the search … was incident to lawful arrest” at the suppression hearing, it “surrender[ed]” that argument and “conceded th[e] issue.”); see also Moody v. People, 159 P.3d 611, 614 (Colo. 2007) (“Our starting point is the basic principle of appellate jurisprudence that arguments not advanced on appeal are generally deemed waived.”).

[*30] Nor did the trial court find that the officers had impounded the car because otherwise Mr. Brown would have driven off, after they left. And from the officer’s conclusory statement, we do not know whether Mr. Brown told the officers that he would drive off as soon as they left or if they only inferred that he would do so. See Moody, 159 P.3d at 616 (Noting “the hazards encountered by the court of appeals in navigating sua sponte review: it placed itself in the tenuous position of resolving fundamental facts that had not been identified during the suppression hearing.”).

[*31] True enough, an appellate court “can affirm for any reason supported by the record, even reasons not decided by the trial court.” Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7. But applying this principle sua sponte runs counter to the teaching of Moody. And in any event, without further explanation, this testimony does not provide sufficient support for impounding Mr. Brown’s car. See Miranda, 429 F.3d at 866 (rejecting argument that “impoundment satisfied the ‘caretaking’ function by deterring [defendants] from repeating this illegal activity in the future”).

[*32] In the end, we agree with the well-reasoned cases holding that even where a department policy allows officers to impound a vehicle, the decision to impound must still satisfy the requirements of the Fourth Amendment. Because the prosecution did not meet its burden to show that impounding Mr. Brown’s car was reasonable, the inventory search was unlawful. And because the search was unlawful, any evidence found should have been suppressed. See People v. Prescott, 205 P.3d 416, 422 (Colo. App. 2008) (“[E]vidence obtained by the police through unlawful means … is inadmissible and must be suppressed.”).