
USCA1 Opinion

	




          December 31, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1255                                    UNITED STATES,                                      Appellee,                                          v.                               WILBERTO RAMOS-MORALES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Jose R. Aquayo for appellant.            ______________            Carlos  A. Perez,  Assistant  United States  Attorney,  with  whom            ________________        Daniel  F.  Lopez  Romo, United  States  Attorney,  was  on brief  for        _______________________        appellee.                                 ____________________                                 ____________________                       BREYER, Chief  Judge.  Federal agents  of the Drug                               ____________             Enforcement Agency  ("DEA") arrested  the defendant on  drug             charges.  At  that time, the defendant parked his car on the             side of the road.   The agents seized the car, impounded it,             searched it, and found evidence that was later introduced at             trial.    The  single issue  on this  appeal is whether  the             seizure  of the parked car  was lawful.   The district court             held  that the  seizure  amounted to  a "reasonable,"  hence             lawful,  impoundment   of  the  car  to   prevent  theft  or             vandalism.  We agree.                       The  basic  facts,  presented in  the  light  most             favorable  to  the  government  (whose witnesses  the  court             explicitly  credited), see, e.g.,  United States  v. Newton,                                    ___  ____   _____________     ______             891 F.2d 944, 946 n.2 (1st Cir. 1989), are as follows:                       1.  On July  12, 1991, two DEA agents,  armed with                       an  arrest  warrant  for  the  defendant, Wilberto                       Ramos   Morales,  spotted  a  man  fitting  Ramos'                       description,  emerging  from  a white,  two-story,                       apartment house  on  Calle Tulipan,  in  Carolina,                       Puerto Rico.  A passerby told the agents that  the                       man was indeed Ramos.                       2.   The agents saw Ramos enter his car, parked on                       the sidewalk next to the house.  Calle  Tulipan is                       a  dead end street.   Ramos drove  the car towards                       the far end  of the street  and turned it  around.                       The officers  blocked the  open end of  the street                       with  their  car,  emerged  from  their  car  with                       weapons,  pointed them  at Ramos  in his  car, and                       told Ramos to stop.                       3.   Ramos, whose car  was then "in  the middle of                       the street,"  moved his  car "towards the  edge of                       the  road," and  stopped it  "on  the edge  of the                       street."    Ramos then  got  out of  the  car, the                       agents "put him  in front of the  vehicle with his                       hand[s]  on top of it," and one of the agents took                       the keys from  the "top of  the car," where  Ramos                       had left them.                       4.  After arresting  Ramos, the agents,  following                       "DEA   standard   procedures,"  which   apparently                       instruct agents  not to  "leave" a "vehicle  in an                       unknown  location," took  the car  "for protection                       and  security  purposes,"  -- i.e.,  "to  protect"                       Ramos' "property"  and  "for  the  safety  of  the                       vehicle itself."                       5.   The agents testified  that they did  not know                       where  Ramos "usually  lived or  where he  usually                       stayed."   They had a list  of five addresses they                       were to check in an effort to find him.  The Calle                       Tulipan address was  the last on the list.  Ramos'                       car had  a BCK  license plate, registered  at what                       was   apparently   a  different   ("Country  Club"                       district) Ramos address.                       These  facts would  seem to  bring this  case well             within  the  scope of  the  many  precedents finding  police             impoundment  to  protect  a  car  from  theft  or  vandalism             reasonable, and hence lawful.  The Supreme Court itself  has             held that police may impound a car for this reason, provided             they make  their impoundment decision "according to standard             criteria and on  the basis of something other than suspicion             of evidence of criminal activity."  Colorado v. Bertine, 479                                                 ________    _______             U.S.  367, 375  (1987).   Lower courts  have found  that the             police may  lawfully impound a vehicle  that would otherwise                                         -3-                                          3             remain on the  side of a public highway or  city street, see                                                                      ___             Rodriguez-Morales,  929 F.2d  780  (1st  Cir.  1991),  cert.             _________________                                      _____             denied, 112 S.Ct. 868 (1992);  United States v. Velarde, 903             ______                         _____________    _______             F.2d 1163 (7th Cir. 1990); United States v. Duncan, 763 F.2d                                        _____________    ______             220  (6th Cir. 1985); United States v. Griffin, 729 F.2d 475                                   _____________    _______             (7th Cir.), cert. denied, 469 U.S. 830 (1984); United States                         _____ ______                       _____________             v.  Taddeo, 724 F. Supp. 81 (W.D.N.Y. 1989), aff'd, 932 F.2d                 ______                                   _____             956 (1st Cir. 1991); or in a private parking lot, see United                                                               ___ ______             States  v. Kornegay,  885 F.2d  713 (10th Cir.  1989), cert.             ______     ________                                    _____             denied, 495 U.S. 935  (1990); United States v.  Johnson, 734             ______                        _____________     _______             F.2d 503  (10th Cir.  1984); United States  v. Staller,  616                                          _____________     _______             F.2d 1284 (5th Cir.), cert. denied, 449 U.S. 869 (1980).                                   _____ ______                       The appellant tries to distinguish these  cases by             arguing that he parked his car  off the street in a  private                                             ___             parking  place just outside his home.  The main problem with             this argument is factual.  We must read the record favorably             to the government, and  the government's witnesses (whom the             court generally  credited) testified  that the car  was left             "on  the edge" of the road outside a building that they "did             not know" (and reasonably need not have believed) was Ramos'             home.                       The  dissent tries  to distinguish these  cases by             pointing  out  that the  street in  question  is not  a busy                                         -4-                                          4             public  street  where a  long-parked car  might seem  out of             place,  inviting theft  or harm;  that it  is not  a private             parking  lot,  belonging to  another  person;  and that  the             agents had no reason  to think the street was located  in an             especially crime-ridden area.  But these distinctions do not             seem  convincing.  For one thing,  the significant risk that             an abandoned car  will be  stolen or damaged  does not  seem             confined to  busy streets,  "high  crime" neighborhoods,  or             commercial parking lots.   For another, the agents here,  in             impounding the  car, followed standard DEA  procedures.  The             existence  and   uniform   application  of   such   standard             procedures can help prevent what the dissent sees as a major             threat to privacy interests, namely that  arresting officers             will  use "theft-prevention impoundment"  (and the inventory             search  that usually  follows) as  a pretext  for initiating             searches for evidence of criminal activity. See Bertine, 479                                                         ___ _______             U.S. at 375-76.                         Finally, and perhaps most importantly, the Supreme             Court  in  Bertine  seemed  specifically to  hold  that  the                        _______             Constitution permits arresting officers to impound, pursuant             to standard procedures, an arrested person's automobile that             might  otherwise be left abandoned.   Id.   This result, the                                                   __             Court said, reflects the government's legitimate interest in                                         -5-                                          5             reducing  automobile  theft  and  damage,  the  individual's             diminished expectation of privacy  in an automobile, and the             tendency of clear, standard  rules to control police abuses.             Cf.  South  Dakota v.  Opperman,  428 U.S.  364,  373 (1976)             __   _____________     ________             (according   deference   to  police   caretaking  procedures             designed to  secure and protect vehicles  and their contents             within  police  custody).   We  do not  see  any significant             distinction  between the  case at  bar and  that controlling             authority, particularly as supplemented  by the cases  cited             on  pages 3  -4,  supra.   Indeed,  Bertine, as  far as  the                               _____             _______             Supreme Court's opinion there  reveals, is identical to this             case, but  for the fact that  the Bertine car was  likely at                                               _______             the  side  of  the  road  (the  police  having  stopped, and             presumably  pulled  over,  the  drunk driver)  near  a  busy                                                            _____________             intersection, while the car in this case  was at the side of             ____________             the  road in  a  residential neighborhood.   (The  dissent's                       _______________________________             claim  that the police in  Bertine "could not  have left the                                        _______             car  where it was located  at the time  of Bertine's arrest"             lacks any  basis in the Supreme  Court's description; indeed             the police here seem to have  had the authority to have left             the  car parked  and  locked.)   And, as  we have  said, the             distinction between busy, and  nonbusy, streets, in terms of             that Supreme Court case, and a  host of later cases, seems a                                         -6-                                          6             distinction  without  a  difference.    To  hold  that  busy             arresting officers must leave a suspect's car behind if they             lack information about  the surrounding neighborhood's crime             rate runs contrary to the rationale that underlies the  case             law authority, for it  invites the very kinds of  risks that             the cases  hold justify  impoundment procedures such  as the             one here at issue.                       Given  the extensive authority, this case seems to             us basically  to involve  application of, not  any extension             of,  existing law.  And, we  have not considered the case as             if we were writing Fourth Amendment law on a blank slate.                       For these reasons,  the judgment  of the  district             court is                       Affirmed.                       ________                                                                                                   -7-                                          7                      BOWNES,  Senior  Circuit Judge,  dissenting.   Once                               _____________________            again  the Fourth Amendment has become a casualty of the "War            on  Drugs."   The  majority  opinion  treats the  warrantless            seizure  of   an   automobile   by   the   Drug   Enforcement            Administration as  a routine matter and  approves the seizure            simply  because  the  agents  said  that  they  followed  DEA            "standard procedures."   I do not think that the requirements            of  the  Fourth Amendment  should  be  so cavalierly  shunted            aside.                      I start with  the standard of  review.  A  district            court's  findings in  a  suppression hearing  are binding  on            appeal unless they  are clearly erroneous.   United States v.                                                         _____________            Lanni, 951 F.2d 440, 441 (1st Cir. 1991).  This means that we            _____            review the  record of  the suppression  hearing in  the light            most  favorable to the government.   But our  review does not            end there.   The district court's  "ultimate conclusion" must            be subjected to "plenary review."  United  States v. Sanchez,                                               ______________    _______            943 F.2d 110,  112 (1st Cir. 1991).   See also, United States                                                  ___ ____  _____________            v. Ibarra, 955 F.2d 1405, 1409  (10th Cir. 1992) ("[a]lthough               ______            the  district  court's  factual  findings are  subject  to  a            `clearly   erroneous'  standard   of  review,   the  ultimate            determination of  the reasonableness of . .  . [an officer's]            seizure and  search is a  question of law  to be  reviewed by            this court de novo.").                                         -8-                                          8                      The court of  appeals must also  bear in mind  that            when a  criminal defendant moves to  suppress evidence seized            without a warrant  in violation of the  Fourth Amendment, the            government bears  the burden of proving  that the warrantless            seizure  falls within  one of  the narrow  exceptions to  the            warrant requirement  of the Fourth  Amendment.  As  the Court            has stated:                      Over and again this Court  has emphasized                      that   the   mandate  of   the  Amendment                      requires adherence to judicial processes.                      See Weeks v. United  States, 232 U.S. 383                      ___ _____    ______________                      (1914);  Agnello  v.  United States,  269                               _______      _____________                      U.S. 20 (1925).  Only where incident to a                      valid    arrest,    United   States    v.                                          _______________                      Rabinowitz,  339  U.S. 56  (1950),  or in                      __________                      "exceptional  circumstances," Johnson  v.                                                    _______                      United States, 333 U.S. 10 (1948), may an                      _____________                      exemption lie, and then  the burden is on                      those seeking  the exemption to  show the                      need  for it, McDonald  v. United States,                                    ________     _____________                      335 U.S. 451, 456 (1948).            United  States v. Jeffers, 342 U.S. 48, 51 (1951).  See also,            ______________    _______                           ___ ____            United  States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992)            ______________    ________            (burden   is  on   government  to   show  reasonableness   of            warrantless search including demonstrating that  search comes            within one of the  narrow exceptions to warrant requirement);            Ibarra,  955  F.2d at  1409-10  (government  bears burden  of            ______            showing  warrantless seizure  of auto satisfies  exception to            Fourth Amendment); United States  v. Rutkowski, 877 F.2d 139,                               _____________     _________            141 (1st  Cir. 1989)  (government has burden  of establishing            entitlement to  "plain view" exception to  Fourth Amendment's            warrant requirement); Wayne R.  LaFave, 4 Search and Seizure,                                         -9-                                          9              11.2(b) at 218 n. 23 (2d ed. 1987 & Supp. 1991) (government            always has  burden of  proving applicability of  exception to            warrant requirement).                      I  now  turn to  the  law on  impoundment  of motor            vehicles which the majority either ignores or misstates.  The            United  States Constitution  guarantees "[t]he  right of  the            people to  be secure  in their  persons, houses, papers,  and            effects, against  unreasonable searches and seizures.  . . ."            U.S.  Const.  amend.  IV.   Generally,  a  search  of private            property is unconstitutional unless it is conducted  pursuant            to  a properly issued search warrant.  Katz v. United States,                                                   ____    _____________            389 U.S. 347, 357 (1967).  In a limited number of situations,            however,   warrantless   searches   have   been   upheld   as            "reasonable."  One such  exception to the warrant requirement            arises  when the police, in the  exercise of their "community            caretaking functions," Cady v.  Dombrowski, 413 U.S. 433, 441                                   ____     __________            (1973),  acquire  temporary  custody  of   a  privately-owned            automobile.  In such circumstances the Supreme Court has held            that a  warrantless inventory  search of the  automobile made            "pursuant to standard police  procedures" and for the purpose            of "securing or  protecting the  car and its  contents" is  a            reasonable  police  intrusion which  does  not  offend Fourth            Amendment  principles.   South Dakota  v. Opperman,  428 U.S.                                     ____________     ________            364, 372 & 373 (1976).   In Opperman, the police  impounded a                                        ________            vehicle  which had  been parked  in a  no-parking zone.   The                                         -10-                                          10            Court stated that the  "authority of the police to  seize and            remove   from  the  streets   vehicles  impeding  traffic  or            threatening   public  safety   and   convenience  is   beyond            challenge."  Id. at 369.                         ___                      The  Opperman  Court   identified  three   distinct                           ________            interests   which  justify   the  inventory   search  of   an            automobile:  (1)  protection of the owner's property while in            police custody;  (2) protection of the  police against claims            regarding lost  or stolen property; and (3) protection of the            police  from potential  danger.   Id.    Before the  need  to                                              ___            protect these interests  can arise, however,  "the government            must  have   legitimate  custody   of  the  property   to  be            inventoried."  United States v. Jenkins, 876 F.2d 1085,  1089                           _____________    _______            (2d  Cir.  1989)  (citations   omitted).    See  Illinois  v.                                                        ___  ________            Lafayette, 462 U.S. 640, 648 (1983); United States v. Pappas,            _________                            _____________    ______            613 F.2d 324, 330 (1st Cir. 1979).                      The DEA agents testified at the suppression hearing            that they impounded the  vehicle to protect it from  the risk            of  theft or  vandalism, "and  as part  of the  rules  of the            agency."  The  agents' perceived risk of theft  or vandalism,            however,  was  not  supported  by  any  facts  regarding  the            character  of the  neighborhood, nor were  the "rules  of the            agency"  explained or  put in  evidence.   The only  evidence            before the court was that  the car was legally parked  at the            edge of a public  street in a residential neighborhood.   The                                         -11-                                          11            district  court accepted  the agents'  "safety" justification            without question and  did not  rely on the  existence of  DEA            standard  procedures  to justify  the  seizure.   The  issue,            therefore,  is whether  the agents were,  under the  facts of            this case, justified  in impounding Ramos' car  to protect it            and its  contents.  "Framed precisely,  the critical question            in  cases such as  this is not  whether the police  needed to            impound  the vehicle in  some absolute  sense, or  could have            effected  an impoundment more  solicitously, but  whether the            decision to  impound and  the method chosen  for implementing            that decision  were, under all the  circumstances, within the            realm of  reason."   United States v.  Rodriguez-Morales, 929                                 _____________     _________________            F.2d 780, 786 (1st Cir.  1991), cert. denied, 112 S.  Ct. 868                                            _____ ______            (1992).                      The majority relies heavily on  the Supreme Court's            decision in Colorado v. Bertine, 479 U.S. 367 (1987).  I read                        ________    _______            the Bertine facts differently than  my brothers.  In  Bertine                _______                                           _______            the  Court upheld municipal regulations of Boulder, Colorado,            that  gave  its  police  officers the  discretion  to  choose            between  impounding a  car and  parking and  locking it  in a            public  parking  place,  "so   long  as  that  discretion  is            exercised according to standard criteria and on the basis  of            something  other  than  suspicion  of  evidence  of  criminal            activity."  Id. at 375.   Bertine does not control  the facts                        ___           _______            of  this  case, as  the  majority  mistakenly  asserts.    In                                         -12-                                          12            Bertine,  the officers could not  have left the  car where it            _______            was located  at  the  time  of  Bertine's  arrest  for  drunk            driving;  they had to choose between parking the vehicle in a            public lot or impounding  it.  The Court determined  that the            grant to the  officers of such discretion  and their exercise            of that discretion were both reasonable.                      In this case,  the officers had  no reason to  move            Ramos'  car.    It  was  legally  parked   in  a  residential            neighborhood.   There  was  no  evidence  that  the  car  was            interfering with traffic, either automotive or pedestrian, in            any way.  The DEA agents  stressed that the car was impounded            to  protect it from vandalism, but there was no evidence that            cars parked in the neighborhood had been vandalized regularly            or intermittently.   The question here  is not, as it  was in            Bertine,  whether the  police  appropriately exercised  their            _______            discretion  to impound the car  because they had  to move it.            Instead,  the question is  whether it was  reasonable for the            agents  to impound  the vehicle  given the  fact that  it was            lawfully parked in a residential area at the time of arrest.                      Courts have upheld the reasonableness  of decisions            by  law enforcement  officials to  impound vehicles  in cases            where  leaving the vehicle where  it was would  either pose a            threat to  public safety  or present  an inviting  target for            thieves or  vandals.  See, e.g.,  Rodriguez-Morales, 929 F.2d                                  ___  ____   _________________            at  785  (shoulder of  a  busy  interstate  highway  when  no                                         -13-                                          13            occupant  properly  licensed  to  drive);  United  States  v.                                                       ______________            Velarde,  903  F.2d 1163,  1166-67  (7th  Cir. 1990)  (same);            _______            United States v. Kornegay, 885 F.2d 713, 716 (10th Cir. 1989)            _____________    ________            (parked  in private lot and  police did not  know identity of            operator), cert.  denied, 495 U.S. 935  (1990); United States                       ____   ______                        _____________            v. Brown,  787 F.2d 929,  932 (4th Cir.)  (occupants appeared               _____            drunk,  no known sober person  was available to take custody,            and car, if left unattended, could present a nuisance), cert.                                                                    ____            denied,  479 U.S.  837 (1986);  United States v.  Duncan, 763            ______                          _____________     ______            F.2d 220, 224  (6th Cir.  1985) (arrest  on public  highway);            United  States v. Johnson, 734 F.2d 503, 505 (10th Cir. 1984)            ______________    _______            (parked in private  lot, exposed to vandalism,  and owner was            inebriated); United States v. Griffin, 729 F.2d 475, 480 (7th                         _____________    _______            Cir.)  (neither  occupant  could   legally  remove  car  from            emergency lane of highway and leaving it there  would present            hazard and theft  risk), cert. denied,  469 U.S. 830  (1984);                                     ____  ______            United States v. Staller, 616  F.2d 1284, 1289-90 (5th  Cir.)            _____________    _______            (legally parked  in shopping  mall parking lot,  but arrested            driver was from out of state and nobody else was available to            assume responsibility),  cert. denied,  449 U.S.  869 (1980);                                     ____  ______            United  States v.  Taddeo, 724  F. Supp.  81, 82-3  (W.D.N.Y.            ______________     ______            1989) (stopped in a bus lane  on a busy six-lane highway near            the center  of downtown Rochester  just prior to  rush hour),            aff'd, 932 F.2d  956 (2d  Cir. 1991); United  States v.  1988            _____                                 ______________     ____            B.M.W.  750IL,  716 F.  Supp.  171,  173-74  (E.D.  Pa.)  (no            _____________                                         -14-                                          14            licensed  driver  available  to  remove vehicle  parked  near            street corner  and exposed  to risk of  theft or  vandalism),            aff'd without opinion, 891 F.2d 284 (3d Cir. 1989).            _____________________                      The  majority cites  many  of these  same cases  in            support of its conclusion that  the impoundment of Ramos' car            was legal.  In so doing, the  majority has failed to consider            the  factual differences  between  the cited  cases and  this            case.  Despite the clear factual differences from the line of            cases  supporting the reasonableness  of decisions to impound            vehicles  for  the  protection of  either  the  owner or  the            public, the district  court accepted the  agents' unsupported            conclusions about  the risks  associated with leaving  Ramos'            car  where it  was:    legally parked  "at  the edge  of  the            street."  Now the court of appeals compounds this error.                      The  district  court  did  find  that  two  factors            supported  the  reasonableness of  the  agents' determination            that  there  would have  been a  serious  threat of  theft or            vandalism had  they left  the vehicle  where  it was  parked:            first,  that  the  officers  were  unsure  about  the  actual            residence  of   Ramos;  and,  second,  that   several  people            witnessed the arrest.  In the words of the district court:                      at  the  time of  the arrest,  the agents                      were uncertain of the  defendant's actual                      residence.    Under these  circumstances,                      the   agents    could   have   reasonably                      concluded  that  the defendant's  vehicle                      could be subject to theft or vandalism if                      it   remained   parked   where  it   was,                                         -15-                                          15                      especially  in light  of  the  fact  that                      several persons witnessed the arrest.                      Despite   the   reasonableness   of   the   agents'            uncertainty  about Ramos' actual  residence, that uncertainty            had  no  significance  for the  perceived  risk  of  theft or            vandalism  of   his   automobile.     Those   risks   existed            independently  of Ramos'  actual residence.   Such  risks are            dependent  upon the  character  of the  neighborhood and  the            propensity  for car theft and  vandalism in the  area.  After            all, the odds of the car being stolen or vandalized  are less            for a stranger who  parks his car in an area with  a low rate            of car theft, than  those for a resident of a  high-risk area            who parks his car  outside his home.   There was no  evidence            offered by  the government at either  the suppression hearing            or  the   trial  to  support  the   characterization  of  the            neighborhood in which  Ramos and  his car were  found as  one            with either  a high or low  risk for car theft  or vandalism.            The location  of the actual residence of  Ramos is irrelevant            to  this determination.    The alleged  DEA "policy"  against            leaving  vehicles  of  arrestees  in  "unknown locations"  is            overbroad, if not completely irrational.                      The second, and  connected, reason supplied  by the            court  in support of its ruling, that there were witnesses to            the  arrest, is  simply not  supported in  the record  of the            suppression  hearing.    At   the  suppression  hearing,  the            question of  whether others  were present  near the  scene of                                         -16-                                          16            arrest  arose  on  four  occasions.    First,  Agent  Ramirez            testified in  response to questions posed  by the prosecutrix            about what  happened when  he asked  a bystander  whether the            person he saw get into the Honda Accord was, in fact, Ramos:                 A    I asked the  person who was near  on the house                      next to where  his car  was parked  if he  was                      Willy,  and  that   person  responded  in  the                      affirmative . . . .                      . . . .                 Q    What happened  to that individual that you had                      inquired from, if he was Willy?                 A    At that  moment I don't know  what happened to                      him.                 Q    Was he there when you arrested defendant Ramos                      Morales?                 A    No madam, he was not.            Second, Agent Ramon testified about  what the agents did when            they first spotted the Honda Accord registered in the name of            Ramos:                 A    [S]ince [we]  did not see  anybody on the                      streets  we decided  to wait,  and so  we                      established  surveillance on  that street                      which is a dead end street.            Third, on cross-examination, Ramon  testified that he did not            remember  seeing Vadiz next to  Ramos' car just  prior to the            moment when Ramos entered his vehicle:                 Q    [D]id  you  see  another  man  next  to  that  car,                      immediately next to Mr. Ramos's car?                 A    Not that I recall, Sir.                                         -17-                                          17            Fourth, Vadiz, as a witness for the defendant, testified that            he was present at the scene of the arrest and that DEA agents            prevented  Ramos from  giving him  custody of  the car.   The            district  court, in its suppression order explicitly rejected            this  testimony, stating:   "[t]he  agents  further testified            that  the 19-year-old neighbor was not present at the time of            defendant's  arrest.   After  hearing  the  testimony of  the            agents  and  that  of  the  neighbor,  the  Court  finds  the            testimony of  the agents  more credible  than  that of  Guido            [sic] Vadiz."                        Therefore, there  was no evidence in  the record of            the  suppression  hearing  supporting  the  district  court's            finding that  "several persons witnessed the  arrest."1  Even            if there had  been such evidence at  the suppression hearing,            or at  the trial itself,  such evidence, without  more, would            not  support a finding of  probable cause to  seize a vehicle            without a warrant.  It is difficult  to imagine any arrest in            a  major urban area  which is not  witnessed by at  least one            bystander.    Were  that  sufficient reason  to  justify  the            seizure of a car at the time of arrest, the limited exception            to the  warrant requirement  based on  exigent circumstances,            such  as the protection of public safety or the prevention of                                            ____________________            1  According  to the  government's own  brief, "prior  to the            arrest,  there were neighbors in the  immediate area.  During            and after  the arrest no  one was within  sight."  Brief  for            Appellee at 9 n.5.                                         -18-                                          18            theft  or vandalism,  would soon  swallow the  rule.   As the            Tenth  Circuit has noted, "Opperman cannot be used to justify                                       ________            the automatic inventory of  every car upon the arrest  of its            owner.   The  justifications for the  rule are  too carefully            crafted for this to be the intent."  United States v. Pappas,                                                 _____________    ______            735 F.2d 1232, 1234 (10th Cir. 1984).                      In United States v. Pappas,  613 F.2d 324 (1st Cir.                         _____________    ______            1979), this court held that even when the government impounds            a vehicle because its  agents have reason to believe  that it            is subject to forfeiture under 21 U.S.C.   881(b)(4), it must            fulfill  the warrant  requirement in  the absence  of exigent            circumstances.   Id.  at 330.   The  Second Circuit  recently                             ___            agreed, holding  that warrantless seizures under    881(b)(4)            "must meet  one of  the recognized  exceptions to  the fourth            amendment's warrant requirement."  United  States v. Lasanta,                                               ______________    _______            Nos. 91-1724, 91-1725, 92-1008, 1992 Allfeds WL 297090, at *3            (2d Cir. Oct. 21, 1992).                      If  the warrant  requirement must  be met  in cases            where    the   government   has   a   legitimate,   statutory            justification for impounding a  vehicle, surely the existence            of  a vague "agency policy" is no substitute for a warrant in            the circumstances  presented by this case.   Bertine does not                                                         _______      ___            stand for the proposition that so long as a  DEA agent claims            to  be  following  standard   procedures,  he  can  seize  an            automobile  without a warrant.   In Bertine, the Court merely                                                _______                                         -19-                                          19            held that when the police must remove a car from the scene of            an  arrest, they  may,  in accord  with standard  procedures,            either park and lock the car in a public place or impound the            vehicle and conduct  an inventory search.   The predicate  to            the Bertine  rule was not  met in  this case.   There was  no                _______            evidence showing that the             agents had any legitimate reason to move Ramos' vehicle.  The            majority has  extrapolated from  Bertine how the  Court would                                             _______            decide this case.  This may be a reasonable prediction, but I            think  we are restricted to the facts and holdings of Bertine                                                                  _______            as it was issued.                      In summary, a careful  review of the record reveals            that  there was  no evidence before  the district  court that            Ramos' car was located in an area that exposed it to the risk            of  vandalism or theft, and  the district court  did not take            judicial  notice  that   the  car  was   parked  in  such   a            neighborhood.  There was no  evidence to support the  court's            finding that there were witnesses to the arrest.  The lack of            certainty about the actual  residence of Ramos was irrelevant            as  to whether  sufficient exigent  circumstances existed  to            justify the warrantless seizure of his automobile.  Given the            lack  of supporting evidence in the record, I cannot join the            majority.                      The majority completely ignores the issue of burden            of  proof.  The government bears the burden of proof whenever                                         -20-                                          20            it seeks to justify  warrantless seizures.  Today,  despite a            lack  of  any supporting  evidence,  this  court affirms  the            agents' naked conclusion that leaving Ramos' car where it was            parked when Ramos was  arrested presented a risk of  theft or            vandalism.   This means  that in the  future, any time  a DEA            agent seizes  a suspect's  automobile without a  warrant, all            she need say is that she did so "to protect the  car from the            dangers  of theft and vandalism."  DEA agents will now surely            wait  until  a  suspect   gets  into  his  automobile  before            effecting an  arrest because,  once the suspect  is arrested,            the agents  can  impound the  car  and conduct  an  inventory            search                 withoutprobablecauseand                                       intheabsence                                                  ofexigentcircumstances.                      Today's   decision  is  not  compelled  by  current            constitutional  doctrine.   As a  court of  appeals, we  must            recognize  that our first duty is  to uphold the Constitution            as it has  been interpreted by the  Supreme Court.   We ought            not diminish and circumscribe the protections of  the Bill of            Rights  in  the absence  of a  clear  command by  the Supreme            Court.     The  majority  gives  judicial   sanction  to  the            impermissible seizure of a citizen's automobile that violates            the requirements  of the Fourth  Amendment.  This  ruling is,            lamentably,  another  step in  the  judicial  erosion of  the            freedoms guaranteed by the Bill of Rights.                                         -21-                                          21
