D.Nev.: Govt’s post hoc justification for vehicle search as inventory fails for lack of proof

Attempted inventory suppressed. The government’s proposed community caretaking claim that the neighborhood was high crime meant that they couldn’t leave the car for fear of vandalism isn’t supported by the proof under circuit precedent. It was a post hoc rationalization. The search occurred with a comment on body cam about how it was good thing they’d be inventorying the vehicle after one found guns in the vehicle. United States v. Roberts, 2019 U.S. Dist. LEXIS 220949 (D. Nev. Dec. 26, 2019):

Defendant also points out that the Officers have documented no community caretaking purpose anywhere in the record—either in any police report or on their body cameras. (ECF No. 52 at 15; see, e.g., ECF No. 38-1 (the only completed police report, which Jones completed).) Cf. United States v. Turnbow, No. 3:18-cr-00001-MMD-WGC, 2019 U.S. Dist. LEXIS 24208, 2019 WL 654456, at *6 (D. Nev. Feb. 15, 2019), reconsideration denied, 2019 U.S. Dist. LEXIS 44473, 2019 WL 1261357 (D. Nev. Mar. 19, 2019) (“Notably absent from Sergeant English’s police report is any discussion of his purported community caretaking motivations for the inventory search, such as concern about vandalism, or that the Car was not in a valid parking spot.”).

Nonetheless, the government argues and the Officers later testified at the Hearing that they took to inventorying the car to further the aim of impoundment because the Officers were concerned that the car was located in a high crime neighborhood. (ECF No. 7, 9.) The Court is convinced that this is an after-the-fact contention.

Defendant points out that “[t]he citing of an area as ‘high-crime’ requires careful examination by the court, because such description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity” (ECF No. 52 at 15). U.S. v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000). Courts “must be particularly careful to ensure that a ‘high crime’ area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, but is limited to specific, circumscribed locations where particular crimes occur with unusual regularity.” Id.

Here, to support its high-crime contention, the government provides an exhibit revealing a significant number of service calls to both Vallejo PD and the city’s fire department for the block on which Defendant was arrested, during the six months before the arrest. (ECF No. 48 (citing ECF No. 48-2).) But, as the defense points out, the government’s exhibit does not support a finding of high crime with the particularity required under caselaw in the Ninth Circuit. (See ECF No. 52 at 15-16.) The exhibit does not specifically indicate that any vehicle had been vandalized in the six months before Defendant’s arrest. (See ECF No. 48-2.) Further, only one vehicle had been reported stolen, several months before the arrest—on March 31, 2018. (Id. at 2.) Thus, the government’s exhibit falls short of supporting that the Officers had a basis to be concerned with “high crime” that would be of particular concern to the car. The Officers’ testimony failed to suggest otherwise. Accordingly, the Court finds it “difficult to credit the [government’s] new explanation[—not noted anywhere in the documented record—], which reeks of afterthought.” Miller-EL v. Dretke, 545 U.S. 231, 246, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); see also id. (stating that the court of appeals’ “readiness to accept the State’s substitute reason ignores not only its pretextual timing but the other reasons rendering it implausible”).

Based on this evidence, the Court concludes that the Officers had a single bona fide, and impermissible motive, in searching the car when they did—to find evidence of a crime. As such, the Court finds that the purported inventory search was unlawfully pretextual. See, e.g., Johnson, 889 F.3d at 1133 (inventory searches are invalid if officer searched with subjective purpose to find evidence of a crime); United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (“An inventory search is invalid if it was a pretext for an investigative search[,]” that is, where “only the investigative motive is bona fide.”). Therefore, the Court will grant Defendant’s motion to suppress the items found in the car pursuant to the inventory search.

Although the government argues that the execution of a valid search warrant on the car provides a separate basis allowing for the recovery of the clothes, the Court is not convinced that that warrant would be found valid at this point, given its findings supra and infra. In any event, the clothes at issue are listed in Jones’ evidence report (see ECF No. 48-4 at 3), thus recovered as part of the invalidated search. The fact of a later-in-time search warrant does not cure the violation here. Accordingly, the Court will suppress the firearms, clothing, among other things, found during the search of the car.