{"id":8023,"date":"2013-03-28T08:23:59","date_gmt":"2012-11-29T08:42:41","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-11-29T08:42:41","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8023","title":{"rendered":"CA9: Policy alone cannot justify an inventory–there must be facts"},"content":{"rendered":"

Policy alone does not justify an inventory; the facts must justify it, too. United States v. Cervantes<\/a>, 703 F.3d 1135 (10th Cir. 2012):<\/p>\n

Neither Sanchez nor Colley provided any testimony that Cervantes’s vehicle was parked illegally, posed a safety hazard, or was vulnerable to vandalism or theft. To the contrary, Officer Colley testified that Cervantes appropriately pulled over to the curb when he was stopped in a residential neighborhood. While it is true that Cervantes’s vehicle was not in close proximity to his home at the time it was impounded, cf. Caseres, 533 F.3d at 1075 (noting that defendant’s vehicle was two houses away from his home), the government presented no evidence that the vehicle would be vulnerable to vandalism or theft if it were left in its residential location, or that it posed a safety hazard, and thus failed to meet its burden to show that the community caretaking exception applied. Id.; Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993) (upholding the towing of a car from a public parking lot, not a residential street, under the community caretaking exception).<\/p>\n

Nor can the government justify the impoundment by simply citing to sections of the California Vehicle Code and the LAPD’s policy on impoundments and inventory searches. The fact that an impoundment complies with a state statute or police policy, by itself, is insufficient to justify an impoundment under the community caretaking exception. See Miranda, 429 F.3d at 864 (“We begin with the premise, apparently not recognized by the Defendants, that the decision to impound pursuant to the authority of a city ordinance and state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment ….”). “[T]he decision to impound a vehicle Moreover, it is not clear that Officers Colley and Sanchez even complied with the California Vehicle Code when they impounded Cervantes’s vehicle. According to California Vehicle Code \u00a7 22651(h)(1), an officer may impound and remove a vehicle “[w]hen an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody.” Cal. Vehicle Code \u00a7 22651(h)(1) (emphases added). Pursuant to California Vehicle Code \u00a7 14602.6(a)(1), “[w]henever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked … the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person ….” Cal. Vehicle Code \u00a7 14602.6(a)(1) (emphases added). While the purported reason for the impoundment of Cervantes’s car was his alleged driving without a license, in violation of California Vehicle Code \u00a7 12500(a), according to both officers, Cervantes was arrested and taken into custody only after the vehicle was impounded and the inventory search had already resulted in the discovery of narcotics.<\/p>\n

In sum, on this record, the impoundment of Cervantes’s vehicle was not justified by the community caretaking exception to the Fourth Amendment’s warrant requirement. The district court’s contrary holding was error.<\/p><\/blockquote>\n

I suspect this case may go up. Courts always grant deference to the police to impound a vehicle, almost on a whim, or at least bending over backwards to twist facts to support the police, as the dissent seemed to do here. Such deference has always rubbed me the wrong way, but I’m not an appellate judge, either. Here, Cervantes’s vehicle was stopped in an ordinary residential area, not a “high crime area,” so the risk of theft was reduced. But, if Cervantes was going to be in custody for a while, what about leaving it for weeks or months parked in front of a house? I’m making the government’s argument now, I guess. But, so what? What about inevitable discovery when the vehicle is someday towed? Too speculative?<\/p>\n","protected":false},"excerpt":{"rendered":"

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