                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-2008

USA v. Smith
Precedential or Non-Precedential: Precedential

Docket No. 06-3112




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                                         PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 06-3112


              UNITED STATES OF AMERICA

                               v.

                 DEVON MONROE SMITH,

                                              Appellant


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                  (D.C. Crim. No. 05-00257)
        Honorable Eduardo C. Robreno, District Judge


          Submitted under Third Circuit LAR 34.1(a)
                       March 7, 2008

BEFORE: FISHER, GREENBERG, and ROTH, Circuit Judges

                     (Filed: April 9, 2008)



Patrick L. Meehan
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
K. Kenneth Brown, II
Special Assistant United States Attorney
50 North Duke Street
Lancaster, PA 17602

   Attorneys for Appellee

Christopher D. Warren
1500 Walnut Street, Suite 1500
Philadelphia, PA 19102

   Attorney for Appellant



                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

                     I. INTRODUCTION

        This matter comes on before this court on an appeal from
a final judgment of conviction and sentence in this criminal case
entered on June 6, 2006, following appellant Devon Smith’s
conditional plea of guilty after the District Court denied his
motion to suppress. The circumstances of the case are
straightforward. On June 8, 2004, Lancaster, Pennsylvania,
police officers Christopher Laser and Richard Heim while on
patrol observed Smith sitting in the passenger seat of an
automobile that Danny Santiago was operating. Heim
recognized Smith and was aware that there was an arrest warrant
outstanding for him. Consequently, the officers stopped the
vehicle and arrested Smith. Subsequently, Laser and Santiago
got into an altercation during which Smith fled the scene. After
additional officers arrived the police recaptured Smith and
rearrested him. They also arrested Santiago at the scene of the
stop.

       The police did not know who owned the vehicle for
neither Smith nor Santiago claimed to own it. Moreover,

                                 2
Santiago said he did not know who the owner was, its
registration papers were not available, and Santiago did not
know the location of the registration papers.1 Furthermore,
inasmuch as the police arrested both men neither could drive the
vehicle which had no other occupants. Moreover, there was no
one else available at the scene to take its possession.

       These circumstances created a problem for Laser and
Heim because they believed that they should not leave the
vehicle at the place where they stopped it inasmuch as the
conditions in the area led them to believe that if they did so the
vehicle might be damaged, vandalized, or stolen. Therefore,
Heim impounded the vehicle and drove it to the police station.
At the station during a routine warrantless inventory search of
the vehicle, Laser found a loaded semi-automatic handgun in its
glove department. He then interrupted the search which he
resumed after he obtained a search warrant for the vehicle.
Subsequently, on the same day, in a statement that he has not
renounced as untruthful, Smith told police detectives that he had
loaded the weapon and placed it in the glove department.2 He
also told them that he knew that he was a convicted felon and
was aware that because of that status he was not lawfully
permitted to possess the weapon.

        On May 3, 2005, a grand jury indicted Smith for unlawful
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g) and 924(c). Smith responded to the indictment
by filing a motion to suppress the handgun as evidence. The
District Court held an evidentiary hearing on the motion at
which Heim, who was in Iraq, without objection by Smith,
testified by video conference and Laser testified in person.


       1
        At the suppression hearing that we will describe below
Laser testified that at some point after the search he discovered that
Smith’s girlfriend owned the vehicle.
       2
        In the District Court Smith unsuccessfully argued that his
statement should be suppressed as the “fruit of the poisonous tree.”
Supp. app. at 41. In light of the result that we reach here that the
seizure and search were lawful, there was no “poisonous tree.”

                                  3
Thereafter, by an order entered October 26, 2005, accompanied
by a memorandum opinion, the court denied the motion to
suppress. In its opinion the District Court held that the
impoundment was lawful because Heim impounded the vehicle
pursuant to police community caretaking function authority and
Lancaster police use a standardized routine that they followed
here to determine whether to impound the vehicle. The court
further held that the impoundment was “not arbitrary or
unreasonable.”3 We quote judicial authority describing the
parameters of the community caretaking function authority
below.

       On November 8, 2005, Smith entered a conditional plea
of guilty to the indictment but preserved his right to appeal from
the denial of his motion to dismiss. See Fed. R. Crim. P.
11(a)(2); United States v. Zudick, 523 F.2d 848, 852 (3d Cir.
1975). The District Court accepted the plea of guilty and later
sentenced Smith to a 192-month custodial term to be followed
by five years of supervised release. It also imposed a $2,000
fine.

       Smith appeals making the following argument:

              The decision by a police officer to impound
       a vehicle must be exercised pursuant to
       standardized criteria or the seizure is
       unconstitutional. The testimony presented in this
       case established that Officer Heim was exercising
       his discretion when he opted to impound the
       vehicle and that there were no standard policies or


       3
         The District Court also held that the impoundment was
lawful under Pennsylvania law and inasmuch as Smith predicates
his argument on this appeal solely on the Fourth Amendment and
does not contend that the District Court’s state law analysis was
wrong we do not review that analysis. Of course, we could not
uphold the impoundment merely because it was lawful under state
law as it still would have to meet Fourth Amendment standards and
the state law might not satisfy them. See United States v. Coccia,
446 F.3d 233, 238 (1st Cir. 2006).

                                4
       procedures which circumscribed or otherwise
       limited that discretion. The district court thus
       clearly erred when it found as a fact that the officer
       was acting pursuant to a standardized routine when
       he decided to impound the vehicle. Accordingly,
       the evidence obtained as a result of the
       unconstitutional seizure of the vehicle should have
       been suppressed.

Appellant’s br. at 12. Significantly, Smith does not contend that
even if the impoundment was lawful the inventory search was
not lawful. Consequently, we focus on the validity of the
impoundment rather than the validity of the actual search of the
vehicle.



     II. JURISDICTION AND STANDARD OF REVIEW

        The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
As we often have indicated, we exercise the deferential clear
error standard in reviewing a district court’s factual findings but
exercise plenary review over its determination of legal issues.
See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). In
this case there is a sharp dispute of facts with respect to whether
Heim was acting pursuant to a standardized routine when he
decided to impound the vehicle. On the one hand, the
government contends that, as the District Court held, the police
followed a standardized routine in impounding the vehicle. On
the other hand, Smith contends that Heim, rather than following
a standard impoundment routine, simply exercised his discretion
when impounding the vehicle as the Lancaster Police
Department did not have standard policies or procedures which
circumscribed or otherwise limited that discretion. Nevertheless
we need not determine whether the District Court clearly erred
on the basis of the record before it when it found that Heim was
acting pursuant to a standardized routine when he impounded the
vehicle because even if the court’s finding was erroneous, for the
reasons we will set forth we are satisfied that the impoundment
was lawful. Thus, we decide this case assuming, as Smith

                                 5
contends, that the Lancaster Police Department did not have a
standard policy regarding the impounding and towing of
vehicles.4



                        III. DISCUSSION

        There was considerable evidence at the suppression
hearing explaining the Lancaster Police Department’s policy or
lack of policy governing the impounding of vehicles and why the
police impounded the vehicle in which Smith was riding. It is
understandable that inasmuch as Smith challenges the District
Court’s factual finding that Heim acted pursuant to that policy,
in his brief he quotes the evidence at length. Even though we
accept for purposes of this appeal Smith’s contention that the
District Court erred when it found that Heim acted pursuant to a
standardized procedure when he impounded the vehicle we, too,
will quote the evidence at length as it bears on the
reasonableness of his action when he impounded the vehicle.
Heim testified as follows:

       Q.     So you would have been the individual who


       4
         The government indicates in its brief that after the District
Court adjudicated this matter and Smith appealed, the government
itself discovered that the Lancaster Police Department has a written
policy that the brief does not describe regarding the impounding
and towing of vehicles. The parties apparently never brought this
policy to the attention of the District Court and thus that court was
not aware of the policy either when entering the order now on
appeal or at any later date. Nevertheless, neither party has moved
to remand the case to the District Court so that it might reconsider
its decision in light of the policy and neither has moved to expand
the record on this appeal to include this policy and, accordingly, we
do not know what the policy is. We will not remand the case to the
District Court to reconsider its decision in light of the policy and
we have not expanded the record on our own motion to include the
policy as Heim cannot have relied on the policy when he
impounded the vehicle as he was not aware of it.

                                  6
       decided to impound the vehicle. Right?

       A.     More than likely, yes.

       Q.     Why was the vehicle impounded?

       A.     Let me check my report here. Oh, actually,
       the reason the vehicle was taken into custody that
       day is because neither the driver nor Mr. Smith
       was the owner of the vehicle and we were going to
       try and contact the registered owner.[5]

       Q.     Why did you have to impound the vehicle
       to contact the registered owner?

       A.      Because a lot of times we leave vehicles on
       the street and they end up being stolen later down
       the road. A lot of times these vehicles are loaned
       out for drugs and duplicate keys are made. It was
       just to ensure that the rightful owner gets the
       vehicle back.

       Q.   Is there any policy with respect to
       impoundment of vehicles?

       A.      It’s not actually impoundment. I can’t say
       that there are actually policies on impoundment.
       We do for other things concerning vehicles. Off
       the top of my head I don’t know.




       5
         The government does not contend that Smith does not have
standing to challenge the impoundment because it stipulated in the
District Court that even though he did not testify at the suppression
hearing, if he had done so he would have explained that his
girlfriend, who was the owner of the vehicle, had lent it to him at
the time of the arrest. See United States v. Baker, 221 F.3d 438,
442 (3d Cir. 2000).

                                 7
Q.     So to your knowledge there is no standard
procedure with respect to impoundment of
vehicles. Is that right?

A.      We have standard procedures for what we do with
the vehicles after we take custody of them. As far as
actually taking the vehicle initially, I can’t – like I said,
we have so many policies that it’s hard to remember. A
lot of times I will have to refer to the policy manual to
make a decision on something.

Q.     Let me put it to you simply. Do you know
whether or not there is any standard procedure or
policy in the Lancaster City Police Department
with respect to the impoundment of vehicles?

A.      No. I can’t say specifically that I know for
a fact.

Q.      Does that mean that the officer at the scene
gets to make the decision as to whether or not a
vehicle is impounded?

A.      Sometimes, yes, and sometimes a patrol
supervisor will be contacted depending on the
situation.

Q.      But again, the officer or whoever is making
the decision has the discretion to decide whether or
not to impound a vehicle. Right?

A.     Not always, no. If we’re talking about a
major crime – if it’s a homicide or something, then
that decision will be made by a supervisor or
detective. In this situation apparently it was me
who made the decision about it.

Q.     But the point is, you have discretion in that
regard. Right? You can impound it or not
impound it, depending upon what you think is the
best thing to do. Correct?

                          8
      A.      Again, that discretion is based upon the
      situation. In this situation this vehicle was
      impounded by my discretion.

App. at 29-31.

      Laser testified as follows:

      Q.      And what happened to the vehicle?

      A.      The vehicle itself was driven back to the
      station by Sergeant Heim, brought in for
      impounding. At that time we were unaware of
      who the actual owner was, with neither subject
      taking responsibility for the vehicle. And with
      where it was parked, the location where it was out
      [sic], was not a location where we had a tendency
      to leave vehicles for non-residents in that area, due
      to damage and vandalism. And also for our policy
      at that point, the car was in our custody, so we had
      a duty to care for it.

App. at 32.

      Q.     Okay. You also alluded under direct
      examination to a ‘policy’ of the Lancaster City
      Police Department to take vehicles into custody.
      Didn’t you?

      A.     No, it was for handling of vehicles that are
      in our custody.

      Q.      Very well. So the policy that you are talking about
      is after the car has been taken into custody, how you take
      care of it and handle it. Right?

      A.      That is correct.



      Q.      Okay. And that would be basically the

                                 9
       written policy that has been marked SH1, right?

       A.     Yes.

       Q.     So that, just so we are clear, that is the
       policy you were referring to under direct
       examination?

       A.     Yes.

App. at 33.

        The government quotes little additional testimony in its
brief urging us to uphold on the clear error standard the District
Court’s finding that Heim acted pursuant to a standardized
routine when he impounded the vehicle. Rather, it seems to mix
evidence tending to demonstrate the reasonableness of Heim’s
decision to impound the vehicle with evidence regarding the
presence of a standard governing impoundment. Thus, the
government tells us, quoting from Laser’s testimony, that the
vehicle was located at a place that the police did not have “a
tendency to leave vehicles for non-residents in that area, due to
damage and vandalism.” Supp. app. at 12. It then contends that
Laser’s testimony only makes sense when he is “understood to
be explaining that the police routinely impound vehicles in this
same area, or areas like it, when no one is available to drive the
car away.” Appellee’s br. at 31. Overall, after considering all of
the testimony, we are of the view that the District Court’s
finding that Heim acted pursuant to a standardized procedure
when he impounded the vehicle probably is erroneous. But we
do not make a definitive determination on the point. Instead, as
we have indicated that we will do, we will decide the case on the
premise on which Smith presents it, i.e., the Lancaster Police
Department did not have a standard policy regarding the
impoundment and towing of vehicles when Heim impounded the
vehicle.6



       6
       Of course, the government now tells us that this is not so.
See supra note 4.

                                 10
        The question that we resolve on this appeal is,
surprisingly, apparently open in this Court for the government
recites in its brief that it “is unaware of any Third Circuit
precedent directly addressing the precise legal claim presented
by Smith,” i.e., the constitutionality of a vehicle impoundment
under the Fourth Amendment in circumstances in which there is
no standardized policy regarding the impoundment and towing
of vehicles. Appellee’s br. at 23. We, too, are not aware of any
direct precedent in this Court on the point and Smith does not
cite any. There is, however, precedent on the issue in other
courts, most significantly in the Supreme Court. Indeed, Smith
primarily relies on Colorado v. Bertine, 479 U.S. 367, 107 S.Ct.
738 (1987). In Bertine, a police officer arrested Bertine for
driving his van under the influence of alcohol. Id. at 368, 107
S.Ct. at 739. After the arrest but before a tow truck arrived at
the scene a second officer acting in accordance with standard
local police procedures made an inventory search of the vehicle
and found narcotics. Id. at 370-71, 107 S.Ct. at 740-41. In the
ensuing trial court proceedings the court suppressed the evidence
and, after the state’s unsuccessful appeal to the Colorado
Supreme Court, the case reached the Supreme Court on the issue
of the validity of the search under the Fourth Amendment.

        The Supreme Court, after rejecting Bertine’s challenges
predicated on other theories that we need not recount, reached
his final argument which it described and disposed of as follows:

              Bertine finally argues that the inventory
      search of his van was unconstitutional because
      departmental regulations gave the police officers
      discretion to choose between impounding his van
      and parking and locking it in a public parking
      place. The Supreme Court of Colorado did not
      rely on this argument in reaching its conclusion,
      and we reject it. Nothing in [South Dakota v.
      Opperman, 428 U.S. 364, 96 S.Ct. 3092 (1976)] or
      [Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605
      (1983)] prohibits the exercise of police discretion
      so long as that discretion is exercised according to
      standard criteria and on the basis of something
      other than suspicion of evidence of criminal

                               11
       activity. Here, the discretion afforded the Boulder
       police was exercised in light of standardized
       criteria, related to the feasibility and
       appropriateness of parking and locking a vehicle
       rather than impounding it. There was no showing
       that the police chose to impound Bertine’s van in
       order to investigate suspected criminal activity.

Id. at 375-76, 107 S.Ct. at 743 (footnote omitted).7

        Smith also relies on United States v. Duguay, 93 F.3d 346
(7th Cir. 1996). In Duguay, as here, the police made a vehicle
inventory search following an impoundment. In the inventory
search the police recovered cocaine which led to Duguay’s
prosecution for possession of cocaine with intent to distribute.
Id. at 349. Duguay, who was a son of the vehicle’s title holder,
see id. at 353, moved in the district court to suppress the cocaine
on Fourth Amendment grounds, challenging both the
impoundment and the inventory search. The district court
denied the motion and Duguay ultimately was convicted and
sentenced.

      Duguay appealed and the Court of Appeals for the
Seventh Circuit reversed. Though to a large extent the court of
appeals in its opinion focused on the validity of the inventory


       7
          Smith also cites and quotes the Supreme Court’s opinion in
Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632 (1990), in which the
Court held that inasmuch as the police “had no policy whatever
with respect to the opening of closed containers encountered during
an inventory search,” the inventory search involved there in which
the police found marijuana in a suitcase “was not sufficiently
regulated to satisfy the Fourth Amendment.” Id. at 5, 110 S.Ct. at
1635. Clearly, Wells, which involved an inventory search, is
distinguishable from our case involving an impoundment and thus
is of little use here. Similarly, United States v. Salmon, 944 F.2d
1106 (3d Cir. 1991), which the government but not Smith cites, is
not helpful here as it deals with the need for standardized criteria
or an established routine for inventory searches. See id. at 1119-
24.

                                12
search it also held that the police “did not articulate a
constitutionally legitimate rationale for impounding Duguay’s
car.” Id. at 352. Moreover, the court indicated that “[w]hile a
written protocol is not sine qua non” for a lawful impoundment,
the court “was not satisfied that the . . . Police Department
employs a standardized impoundment procedure.” Id. at 351.
The court indicated that “[t]he touchstone of Fourth Amendment
analysis is ‘reasonableness.’” Id. at 353. It also said that “[t]he
decision to impound an automobile, unless it is supported by
probable cause of criminal activity, is only valid if the arrestee is
otherwise unable to provide for the speedy and efficient removal
of the car from public thoroughfares as parking lots.” Id.

        In Duguay the court of appeals, in reversing the order
denying the motion to suppress, pointed out that the police
impounded the vehicle even though Duguay’s girlfriend who had
driven the vehicle to the place of his arrest, and remained at the
scene, “had possession of the keys, and was prepared to remove
the car from the street.” Id. Moreover, another son of the title
holder, Duguay’s brother, also was present at the time of the
arrest. Id. These circumstances led the court to indicate that the
impounding of a vehicle for caretaking purposes “without regard
to whether the defendant can provide for its removal is patently
unreasonable” and that “if the purpose of impoundment is not
investigative, . . . in the absence of probable cause” it did “not
see what purpose denying possession of the car to a passenger, a
girlfriend, or a family member could possibly serve.”8 Id.

        We recognize that some language in Duguay supports
Smith’s argument. After all, the Duguay court was troubled
because the police department there did not employ “a
standardized impoundment procedure.” Id. at 351. Overall,
however, Duguay arguably, at least, supports a determination
that the impoundment here was lawful under the Fourth


       8
        Smith contends that “the community care-taking issue has
no bearing on the question of whether the decision to impound the
vehicle was made pursuant to standard criteria.” Appellant’s br. at
10 n.2. We agree but we only are referring to it on the
reasonableness issue.

                                 13
Amendment. To start with the court emphasized that the
“touchstone” of a Fourth Amendment analysis is
“reasonableness.” How could the touchstone be anything else
for the Fourth Amendment, in terms, prohibits “unreasonable”
searches and seizures? Thus, the adoption of a standardized
impoundment procedure merely supplies a methodology by
which reasonableness can be judged and tends to ensure that the
police will not make arbitrary decisions in determining which
vehicles to impound. These reasons for the adoption of a
standardized impoundment procedure are compatible with the
views of the Court of Appeals for the First Circuit which it set
out in United States v. Coccia, a case that we discuss below, that
under Bertine “an impoundment decision made pursuant to
standardized procedures will most likely, although not
necessarily always, satisfy the Fourth Amendment.” 446 F.3d
233, 238 (1st Cir. 2006). Conversely, it should follow that a
decision to impound a vehicle contrary to a standardized
procedure or even in the absence of a standardized procedure
should not be a per se violation of the Fourth Amendment.

       Of course, on the facts Duguay hardly is helpful to Smith.
In Duguay if the police had not impounded the vehicle,
Duguay’s girlfriend, who had driven the car prior to its
impoundment, could have driven the car away. Moreover, the
police in Duguay did not have to concern themselves with
identifying the owner of the vehicle and contacting him as the
defendant was the owner’s son and another son of the owner,
who apparently was not arrested, was present when the police
arrested Duguay.

        There are two quite recent cases dealing with the issue at
hand, Coccia and United States v. Proctor, 489 F.3d 1348 (D.C.
Cir. 2007), reflecting a conflict with respect to its resolution
between the Courts of Appeals for the First and District of
Columbia Circuits. Indeed, Proctor indicated that in that case
the government invited it “to adopt the First Circuit’s conclusion
[in Coccia] that an impoundment is reasonable so long as it
‘serves the government’s “community caretaking” interests’” but
that it “decline[d] the invitation.” Id. at 1354. We will review
these conflicting cases in detail in the order that the courts
decided them.

                                14
       Coccia was indicted and then convicted at a jury trial for
possession of a firearm while subject to a domestic restraining
order in violation of 18 U.S.C. § 922(g)(8). Coccia, 446 F.3d at
236-37. The evidence showed that the police seized Coccia’s
vehicle when he arrived at his psychiatrist’s premises in an upset
and hostile mental state and police and FBI agents were waiting
for him. Id. at 236. After his vehicle was towed away the police
searched it, initially without a warrant and then, after they found
double-edged knives and a rifle case in the vehicle, with a
warrant. Id. During the renewed search with a warrant the
police found an assault rifle and approximately 1,300 rounds of
ammunition.

       In the district court Coccia moved to suppress the firearm
as evidence on the ground that the police violated his Fourth
Amendment rights by seizing the vehicle as he could have made
other arrangements to remove it from the psychiatrist’s
driveway, a contention that he supported with evidence at the
hearing on his motion. Id. at 236-37. The district court denied
the motion as it held that the police’s towing decision was
reasonable in the circumstances confronting them. Id. at 237.

       On appeal, although Coccia recognized that there is a
community caretaking exception to the requirement of the
Fourth Amendment that seizures be authorized by warrant, he
contended that the exception was inapplicable “because the
government failed to establish that the car was towed from [the
psychiatrist’s] property pursuant to standard operating
procedures.” Id. at 238. Coccia understandably relied in part on
Bertine in arguing that the decision to impound must be made
“according to standardized criteria.” In Coccia the court
described the community caretaking exception as follows:

       The community caretaking exception recognizes
       that the police perform a multitude of community
       functions apart from investigating crime. In
       performing this community caretaking role, police
       are ‘expected to aid those in distress, combat
       actual hazards, prevent potential hazards from
       materializing and provide an infinite variety of
       services to preserve and protect public safety.’

                                15
       United States v. Rodriguez-Morales, 929 F.2d 780,
       784-85 (1st Cir. 1991) . . . . [T]he community
       caretaking function encompasses law
       enforcement’s authority to remove vehicles that
       impede traffic or threaten public safety and
       convenience. See S. Dakota v. Opperman, 428
       U.S. 364, 368-69, 96 S.Ct. 3092 (1976).

Id. at 238.

       The court of appeals rejected Coccia’s argument as it read
Bertine “to indicate that an impoundment decision made
pursuant to standardized procedures will most likely, although
not necessarily always, satisfy the Fourth Amendment.” Id. The
court of appeals pointed out that courts frequently have held
“that impoundments of vehicles for community caretaking
purposes are consonant with the Fourth Amendment so long as
the impoundment decision was reasonable under the
circumstances.” Id. at 239. The court then reviewed the
circumstances of the impoundment and held that even in the
absence of a standardized impoundment procedures the search
was reasonable. Id. at 240.

        Proctor’s result was very different from that in Coccia. In
Proctor the defendant Proctor was convicted at a jury trial for
possession of a firearm and ammunition by a felon in violation
of 18 U.S.C. § 922(g)(1). 489 F.3d at 1349. The police initially
arrested Proctor for several motor vehicle offenses including
operating a motor vehicle while intoxicated and driving under
the influence of alcohol. Id. at 1350. Standard police procedure
required the officers to impound his vehicle, apparently because
its owner was not present and no one else was available to take
custody of it. Id. At the scene of the arrest the officers
conducted an inventory search of the vehicle and recovered a
pistol from a bag in the trunk. Id. Proctor moved to suppress the
evidence, contending that both the impoundment and the
inventory search violated the Fourth Amendment. Id. at 1351.
After the court denied his motion and he was convicted and
sentenced he appealed.

       On the appeal Proctor argued that both the impoundment

                                16
and search of his vehicle violated the Fourth Amendment as the
officers violated police department procedures in impounding
and searching the vehicle. The court of appeals agreed with
Proctor and reversed his conviction. Citing Bertine, the court of
appeals indicated that the “Supreme Court has suggested that a
reasonable, standard police procedure must govern the decision
to impound.” Id. at 1353. It also indicated, citing and quoting
Duguay and United States v. Petty, 367 F.3d 1009, 1012 (8th
Cir. 2004), that “[a]t least two of our sister circuits have held that
the decision to impound must be made pursuant to a standard
procedure.” Proctor, 489 F.3d at 1353. As we already have
indicated, the Proctor court took note of Coccia but declined the
government’s invitation to adopt Coccia’s conclusion that an
impoundment to serve community caretaking interests is
reasonable even if it does not follow standardized procedures.
Rather, it held that “if a standard impoundment procedure exists,
a police officer’s failure to adhere thereto is unreasonable and
violates the Fourth Amendment.” Id. at 354. Overall, we
understand Proctor to require that to satisfy the Fourth
Amendment a community caretaking impoundment must be
based on (1) a reasonable standard police procedure governing
decisions on whether to impound vehicles and (2) and the police
must follow the procedure in the case involved.

        In Proctor there were standards governing impoundment
that in the circumstances surrounding Proctor’s arrest required
that unless he consented to the impoundment he had to be given
an opportunity to make his own arrangements to remove the
vehicle. The police, however, did not give him the opportunity
to make those arrangements as they believed that inasmuch as no
one else was present to remove the vehicle they had to remove it.
Consequently, the court of appeals held that the impoundment
violated the standard procedures and thus the Fourth
Amendment.

       In the face of the precedent that we have cited we must
decide which of the two lines of cases to follow, the Coccia line
focusing on the reasonableness of the vehicle impoundment for a
community caretaking purpose, or the Proctor line favoring the
more structured approach to the validity of such impoundments
under the Fourth Amendment requiring that there be

                                 17
standardized police procedures governing impoundments that the
police follow.9 As we already have intimated we think that the
Coccia outcome is correct and the facts in this case demonstrate
why. Here the police stopped a vehicle with two occupants both
of whom they then arrested and thus who could not drive the
vehicle. The area in which they stopped the vehicle was one in
which parked vehicles were subject to being damaged,
vandalized, or stolen. Neither occupant owned the vehicle and
the police did not know who did own it and, unless the police
moved the vehicle, they would have had to leave it where they
stopped it in a dangerous area and, accordingly, the vehicle
would have been subject to being damaged, vandalized, or
stolen. Indeed, Laser was so concerned about the situation that
he explained that he believed the police had a “duty” to take care
of the vehicle.

       In view of the circumstances here we believe that it
hardly would be possible to make a plausible argument that
Heim acted unreasonably in impounding and removing the
vehicle. Indeed, while we will not go so far as to suggest that
the police would have been irresponsible if Heim had not
removed the vehicle we recognize that a legitimate argument
could be made that they would have been.

       In reaching our result we have not overlooked that, as we
indicated above, it may be desirable that the police execute
impoundments for community caretaking purposes pursuant to
standardized procedures because the requirement that they do so
will tend to encourage the police to avoid taking arbitrary action.
Therefore, we certainly do not suggest that police departments
should not adopt standard impoundment policies. But the Fourth
Amendment cannot be the foundation for an equal protection
requirement that the police must have standardized


       9
         There is no doubt that in our case the impoundment was for
community caretaking rather than investigative purposes for which
probable cause would have been required. In this regard, we point
out that there is no suggestion in the record that the police believed
that the vehicle had been stolen or had been used in the
commission of a crime.

                                 18
impoundment procedures because the amendment does not have
an equal protection component. Thus, a reasonable
impoundment does not become unreasonable merely because the
police do not impound all vehicles found in similar
circumstances any more than an unreasonable impoundment
becomes reasonable merely because all vehicles in similar
circumstances are impounded. Moreover, Smith does not raise
Fourteenth Amendment equal protection arguments.

       Finally, we point out that the requirement that a
community caretaking impoundment be made pursuant to a
standard police procedure could lead to untoward results. For
example, the applicable standards may have been set forth in
regulations that have expired and, perhaps through oversight, not
have been renewed. Furthermore, a challenged impoundment
may have been in a jurisdiction in which impoundments are so
rare that the authorities within it quite reasonably never have
seen any need to adopt impoundment standards. Moreover, the
standards might not deal with all the situations that could arise, a
point that the Coccia court made. Coccia, 446 F.3d at 239.



                       IV. CONCLUSION

       Overall we think that it is best that we judge the
constitutionality of a community caretaking impoundment by
directly applying the Fourth Amendment which protects people
“against unreasonable searches and seizures.” U.S. Const.
Amend. IV. Inasmuch as the impoundment here was reasonable
and Smith does not challenge the inventory search that followed
the impoundment, we will affirm the order denying the motion to
suppress and the judgment of conviction and sentence entered
June 6, 2006.




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