          United States Court of Appeals
                      For the First Circuit


No. 17-1736

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                RAFAEL ANTONIO DEL ROSARIO-ACOSTA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Jay A. García-Gregory, U.S. District Judge]



                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Eleonora C. Marranzini, Assistant Federal Public Defender,
with whom Eric A. Vos, Federal Public Defender, Vivianne M.
Marrero-Torres, Assistant Federal Public Defender, Supervisor,
Appeals Section, and Franco L. Pérez-Redondo, Research & Writing
Specialist, were on brief, for appellant.
     Joshua K. Handell, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel, were
on brief, for appellee.
August 3, 2020
             KAYATTA,        Circuit     Judge.         Rafael      Antonio     Del

Rosario-Acosta     was       convicted    of     possession   of   marijuana    and

unlawful possession of a firearm by a prohibited person.                    Because

we find that the district court erred by not suppressing evidence

obtained through an unlawful search and seizure of his vehicle, we

reverse the district court's denial of his motion to suppress,

vacate his conviction, and remand for further proceedings.

                                          I.

             Responding to a call from a gas station cashier reporting

an   armed   person     on    the   premises,      three   Puerto    Rico    Police

Department officers found a sizable crowd at a gas station on

July 5, 2014.     After the officers ordered the crowd to disperse,

Officer Luis Osorio-Acosta ("Osorio") observed Del Rosario walk to

a red Toyota Corolla parked nearby.                As he departed, Del Rosario

momentarily stopped his car and appeared to drop something onto

the ground. Del Rosario then drove onto nearby Street No. 7, where

he parked and then walked back toward the gas station and the

officers.     When the officers asked him questions, he turned and

ran back down Street No. 7, with the officers in pursuit on foot

and by car.

             As Del Rosario ran, the officers saw him:              remove, tear

open, and discard a plastic bag containing what appeared to be

marijuana; stop by his car and place a key in the lock; and begin




                                         - 3 -
running again, discarding a pill bottle.               At that point, the

officers caught up with Del Rosario and arrested him.

            After the officers retrieved the plastic bag and the

pill box (which contained eight Xanax pills and three Percocet

pills), Officer Osorio took Del Rosario's car key and confirmed

that it operated the lock on the car door.               The affidavit in

support of the criminal complaint, executed by Alcohol, Tobacco,

Firearms & Explosive (ATF) Special Agent Charles Fernández, who

was not at the scene, but who interviewed the officers afterwards,

states that the officers then opened and searched the car with

Del Rosario's consent.       At the suppression hearing, the officers

denied opening the car.       The government attributed the contrary

account    in   Agent   Fernández's   affidavit   to   translation   error,

notwithstanding the fact that he seemingly spoke both Spanish and

English.    The magistrate judge believed the officers, prompting an

apparently incredulous district judge to hold a de novo hearing.

After that hearing, the district judge also found himself persuaded

by the translation error explanation.

            Having been so persuaded, the district court then found

as fact that the officers first opened the car after they had it

towed back to headquarters.       Upon inventory examination, the car

was found to contain a revolver in the front cabin and ten small

bags of marijuana under the carpet of the trunk.           In due course,

after unsuccessfully moving to suppress the evidence found in his


                                  - 4 -
car, Del Rosario was tried, convicted, and sentenced to ten months'

imprisonment.      He now appeals, pressing two arguments:       The

district court clearly erred as factfinder in deciding that the

officers did not open and search his car at the scene of the

arrest; and in any event, the officers had no right to seize and

tow his car, thereby setting it up for an inventory search.    As we

will explain, we need only consider the latter argument, which

puts at issue the possible application of the community-caretaking

exception to the warrant requirement.       Ultimately siding with

Del Rosario,1 we reverse his sentence and conviction, and remand

for a new trial.

                                 II.

                                 A.

          "Generally, a law enforcement officer may only seize

property pursuant to a warrant based on probable cause describing

the place to be searched and the property to be seized."      United

States v. Coccia, 446 F.3d 233, 237-38 (1st Cir. 2006) (citing

Horton v. California, 496 U.S. 128, 133 n.4 (1990)).   The officers

having obtained no warrant in this instance, the government relies

primarily on the community-caretaking exception to the warrant

requirement.    See Cady v. Dombrowski, 413 U.S. 433, 441-43 (1973).

This exception is based on the fact "that the police perform a


     1  At oral argument, the government agreed that Del Rosario
raised and preserved this argument in the district court.


                                - 5 -
multitude of community functions apart from investigating crime,"

Coccia, 446 F.3d at 238, and traditionally have been "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," id. (quoting

United States v. Rodriguez-Morales, 929 F.2d 780, 784–85 (1st Cir.

1991)); see also id. (describing the community-caretaking function

as "encompass[ing] law enforcement's authority to remove vehicles

that impede traffic or threaten public safety and convenience"

(citing South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976))).

            As   applied   to   the    seizure      of    an   automobile,   the

community-caretaking function turns in great part on the police

officer's reasons for seizing the vehicle.               The officer must have

"solid,    noninvestigatory      reasons      for        impounding   a   car."

Rodriguez-Morales, 929 F.2d at 787; see also Colorado v. Bertine,

479 U.S. 367, 375 (1987) (holding that the decision to seize need

be "on the basis of something other than suspicion of evidence of

criminal activity").       Impoundment may not be a "mere subterfuge

for investigation."        Rodriguez-Morales, 929 F.2d at 787.               Of

course, if the officer has a proper noninvestigatory reason, she

may act on it even if she also has (as will often be the case) a

belief that impoundment and inventorying will find evidence of a

crime.    Id.; see also Coccia, 446 F.3d at 240-41.




                                      - 6 -
               Some circuits require that the noninvestigatory reasons

for seizing property be manifest in a police department policy,

protocol, or criteria guiding when a car is seized and when it is

not.     See, e.g., United States v. Petty, 367 F.3d 1009, 1012 (8th

Cir. 2004) (holding that "[s]ome degree of 'standardized criteria'

or 'established routine' must regulate these police actions . . .

to ensure that impoundments and inventory searches are not merely

'a ruse for general rummaging in order to discover incriminating

evidence'" (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)), but

also not "requir[ing] that . . . a decision to impound or inventory

must be made in a totally mechanical fashion"); United States v.

Duguay, 93 F.3d 346, 351 (7th Cir. 1996) (requiring standardization

of the "circumstances in which a car may be impounded").                      But see

United States v. Lyle, 919 F.3d 716, 731 (2d Cir. 2019) (looking

to the "totality of the circumstances" to conclude that the

impoundment was "reasonable under the Fourth Amendment even absent

standardized procedures"); United States v. McKinnon, 681 F.3d

203,     208     (5th    Cir.       2012)     (per     curiam)     (evaluating     the

"reasonableness" of the community-caretaking impoundment "in the

context of the facts and circumstances encountered by the officer"

without reference to any standard criteria); United States v.

Smith,     522    F.3d       305,   314      (3d    Cir.   2008)    (assessing    the

"reasonableness         of    the   vehicle        impoundment     for   a   community




                                            - 7 -
caretaking purpose" and declining to require standardized police

procedures).

             In Coccia, we held that the presence of a department

protocol spelling out when there existed noninvestigatory reasons

to impound a vehicle would be a significant factor cutting in favor

of blessing a seizure done pursuant to such an objective protocol.

See 446 F.3d at 238 (explaining that "an impoundment decision made

pursuant to standardized procedures will most likely, although not

necessarily always, satisfy the Fourth Amendment").            We also held,

nevertheless,    that   the    absence   of   such    a    protocol   did   not

necessarily     preclude      reliance   on   the      community-caretaking

exception.     Id. at 238-39.     Rather, we held out the possibility

that an examination of other factors in a given case might justify

application of the exception even with no explicit, standardized

protocol for noninvestigatory seizures.              Id.    Possible factors

supporting the reasonableness of a seizure include:             (1) a rental

company owned the car, Petty, 367 F.3d at 1012-13 ; (2) the car

could not legally be driven, United States v. Zapata, 18 F.3d 971,

978 (1st Cir. 1994); (3) the potential presence of dangerous

materials in the vehicle, Coccia, 446 F.3d at 240; (4) the car was

on the property of another, id.; (5) the defendant would be

indisposed for a long time, id.; (6) the car was packed full of

personal property that might be stolen, id.; (7) the car was in an

area known for criminal activity, United States v. Ramos-Morales,


                                   - 8 -
981 F.2d 625, 626-27 (1st Cir. 1992); (8) there was no one else

immediately available to take the vehicle, Coccia, 446 F.3d at

240; and (9) the car was parked illegally or dangerously and might

be best not left behind, Rodriguez-Morales, 929 F.2d at 785-86.

            The record in this case contains no copy of any written

protocol pertinent to the seizure of Del Rosario's car. When asked

why they had the car towed, Officer Osorio testified that they did

so "for an investigation."        Asked why they needed the car to do an

investigation, Osorio replied, "[b]ecause [Del Rosario] was in

that vehicle and it was said that he had a weapon and it wasn't

found on him."      Officer Osorio did mention an unwritten protocol,

apparently triggered by notifying a supervisor: "Once a supervisor

is notified, then the whole protocol has to be followed" by taking

the arrestee and the vehicle to the station.          When asked, "Why was

the vehicle going to be transported to the division?" Officer

Osorio replied:       "Because that was for investigation."             This

apparent "protocol" is not the type of formal and verifiable

protocol that might provide comfort that the officers are not

seizing the vehicle simply to search it.            To the contrary, the

apparently unwritten protocol as described by Officer Osorio seems

to   be   nothing   more   than   a    practice   designed   to   facilitate

investigation of the crime by putting in motion an inventory search

of the vehicle whether or not there is any need to protect the

vehicle or the public.


                                      - 9 -
            So, we turn our attention to the other factors we

identified in Coccia. No rental company or other third party owned

the car.    The car was parked legally on a quiet residential street

one street over from where Del Rosario lived with his family.2           It

created no more danger than did any other car lawfully parked on

that street.    No evidence suggests personal property was visible

inside the car, and the officers do not claim that the car faced

any greater threat than that faced by any other car lawfully parked

in   the   neighborhood.   There   is    no   claim   that   the   car   was

unregistered or uninsured, or in an unsafe condition. Nor is there

any suggestion that the driver would be held for long on the minor

drug possession offense for which he was arrested.

            Officer Osorio's claim that Del Rosario was reported by

someone to have had a weapon that was no longer on his person, if

true, certainly may have supported either a search or at least a

seizure. See Coccia, 446 F.3d at 240 ("Pursuant to the community

caretaking function, police may conduct warrantless searches and

seizures to take possession of dangerous material that is not

within anyone's control." (citing Cady, 413 U.S. at 447-48)).

There is, though, no evidence at all that anyone said or even




      2 In its brief, the government contends that the car was
parked unlawfully, on a yellow line in front of a fire hydrant.
But there was no testimony to this effect and the district court
made no finding that the car was illegally parked.



                                - 10 -
hinted that Del Rosario had a weapon at the time of the seizure.3

The fact that an officer would use such an unsubstantiated claim

to   invoke     the   community-caretaking    exception     at   a   subsequent

suppression hearing heightens our concern that the exception is

advanced here as an after-the-fact justification for a warrantless

investigatory search.        The district court made no finding to the

contrary,       concluding   instead   that   the     officer's      subjective

intentions were not relevant.

              The only Coccia factor favoring the government is that

ostensibly there was no one else to move the car. But the relevance

of that factor only arises when there is a need to move the car.

In other words, when the other factors reasonably call for the

vehicle to be moved, impoundment might still be unnecessary if

there is another person able and willing to move and care for the

car (e.g., a relative or friend of the arrestee).                    See, e.g.,

United States v. Infante-Ruiz, 13 F.3d 498, 503-04 (1st Cir. 1994)

(finding impoundment of rental car not justified where another

driver    was    available);   Duguay,   93    F.3d    at   353-54     (holding



      3 The cashier who made the call to police stated that there
was an armed man on the premises of the gas station. However,
there is no evidence suggesting that Del Rosario was the putative
armed person. The cashier neither provided a description of the
armed man nor supplied other identifying details, such as the
person's name, age, or the type of firearm he possessed.       The
district court's conclusion that no such description was given was
not clearly erroneous, nor does the government challenge it as
such.


                                   - 11 -
impoundment unconstitutional when another occupant of the vehicle

was present at the arrest and could "provide for the speedy and

efficient removal of the car from public thoroughfares or parking

lots").   Nor is this a case in which a car was located in a random

spot at the side of the road only because its driver was pulled

over by the police.          Rather, Del Rosario parked his car entirely

of his own accord exactly where he wanted it parked.              As best the

officers knew, the car would have remained right where it was had

they not decided to question or approach Del Rosario.             We are not

persuaded      either   by   the   government's    passing   suggestion   that

perhaps the officers were justified in seizing the vehicle because

Del Rosario had left his keys in the door.              Surely the officers

could have secured the keys (just as they would have at the station

had the keys been on Del Rosario's person).

            All in all, it seems inescapable that the officers seized

Del Rosario's car so that they could search it for evidence of a

crime, and that they later sought to justify the search by invoking

the community-caretaking exception.               And while that exception

might well apply even if there were also other motives for seizing

the car, here the exception fits so poorly that it does not suffice

to lift our eyes from the obvious conclusion that the seizure

served    no     purpose     other   than     facilitating    a   warrantless

investigatory search under the guise of an impoundment inventory.




                                     - 12 -
             To    be    clear,   we     are    not   saying       that    an    improper

subjective     motive      renders     the      community-caretaking            exception

inapplicable.       United States v. Hadfield, 918 F.2d 987, 993 (1st

Cir.   1990)      (explaining     that    "an     officer's    state       of    mind    or

subjective intent in conducting a search is inapposite as long as

the circumstances, viewed objectively, justify the action taken").

Rather, we hold that, with no objective criteria supplied by a

department     protocol      policy      that     furthers     a    noninvestigatory

purpose, and with the factors listed in Coccia and our other case

law weighing against any noninvestigatory need to move the car,

the officers' testimony provides no basis for gaining comfort that

invoking the exception serves as anything other than a subterfuge.

See Rodriguez-Morales, 929 F.2d at 787.                  Such a search actually

exceeds the invasiveness of a search at the scene of the arrest,

as it both intrudes on the arrestee's limited privacy interests

and in some cases may saddle the arrestee with a substantial and

unwarranted towing and storage bill, in effect fining the person

for being arrested.

                                           B.

             The        government       argues       that,         even        if      the

community-caretaking exception cannot apply, the impoundment was

permissible because the seizure and impoundment of the car was

authorized under the Puerto Rico Uniform Forfeiture Act of 2011.




                                         - 13 -
P.R. Laws Ann. tit. 34, § 1724f.4        To rely on section 1724f to

justify the warrantless seizure of the vehicle, the officers must

have had "probable cause to believe that all the conditions

imposing forfeiture had been met" at the time when they made the

decision to impound.     United States v. One 1975 Pontiac LeMans,

Vehicle I.D. No. 2F37M56101227, 621 F.2d 444, 449 (1st Cir. 1980);

see also Florida v. White, 526 U.S. 559, 564-65 & n.3 (1999);

United States v. Gaskin, 364 F.3d 438, 458 (2d Cir. 2004) ("[L]aw

enforcement   officers   who   have   probable   cause   to   believe   an

automobile is subject to forfeiture may both seize the vehicle

from a public place and search it without a warrant."); United

States v. Brookins, 345 F.3d 231, 235 (4th Cir. 2003) ("[T]he

police may seize an automobile without first obtaining a warrant

when they have probable cause to believe that it is forfeitable

contraband.").

          Section 1724f    authorizes    the   forfeiture     of   property

"constituting or derived from any proceeds of, or used to commit,

a felony and misdemeanor for which the law authorizes forfeiture,

when said felonies and misdemeanors are classified by . . .

controlled substances laws."      P.R. Laws Ann. tit. 34, § 1724f.


     4  The government relies on "Puerto Rico Law 119," entitled
the "Puerto Rico Uniform Impoundment Law," in its briefing. We
understand P.R. Laws Ann., tit. 34, § 1724(f) to be the
codification of this law. The parties have not provided us with
reason to believe there is a material difference between these
sources relevant to this case.


                                - 14 -
The officers made no claim that the impounded vehicle constituted

the proceeds of any crime, or that the vehicle was obtained with

any such proceeds. Nor did the government ever try to substantiate

below a claim that the car was "used" to commit the crime of merely

possessing illegal drugs.    See United States v. Jones, 565 U.S.

400,   413    (2012)   (declining   to   consider   an   alternative

justification for the search under the Fourth Amendment where the

government did not raise that argument below); cf. Gaskin, 364

F.3d at 458 (finding forfeiture where the vehicle had been used to

meet with a drug couriers and transport a load of marijuana);

White, 526 U.S. at 561 (noting that officers had observed the

defendant using the vehicle to deliver cocaine on three separate

occasions prior to its seizure by police).     However, there is no

claim here that Del Rosario was using the car to, for example,

sell drugs or make deliveries.      The government claimed in the

district court only that Del Rosario was "in possession of the

vehicle while he was being arrested" for possessing controlled

substances.    Possessing one thing while also possessing another

thing does not mean that one uses the former to possess the latter.

Nor has the government developed any argument or presented any

precedent suggesting that driving a car while carrying drugs in

one's pocket constitutes a "use" of the car to commit the offense

of drug possession.    Common sense suggests otherwise, just as one

would not say that he used a bus to commit the offense had he taken


                               - 15 -
a ride on public transit with the drugs in his pocket.5               Without

more, the government has not convinced us that it had probable

cause to seize the vehicle pursuant to this forfeiture statute.

                                        C.

               The government also relies on the doctrine of inevitable

discovery.         The argument seems to be (although it is not entirely

clear) that the officers would have lawfully searched the car at

the scene had they not opted to seize and impound the car.               But,

the doctrine of inevitable discovery means what it says; it

requires reference to "demonstrated historical facts," shown by a

preponderance of the evidence, to show that the evidence would

have come to light through lawful means.              Nix v. Williams, 467

U.S. 431, 444–45 & n.5 (1984); see also Zapata, 18 F.3d at 978

("Evidence which comes to light by unlawful means nonetheless can

be used at trial if it ineluctably would have been revealed in

some       other   (lawful)   way   . . . .").   At   trial,   the   officers

fervently disavowed any intent to search the car at the scene.

And the government does not develop from the record any reason to

think that the officers inevitably could have lawfully conducted

such a search.




       5In filling out the inventory forms at the station, the
officers did not claim that the vehicle was seized due to
involvement with a crime.


                                      - 16 -
           With      no   further   argument    advanced    to    justify     the

warrantless seizure of Del Rosario's vehicle or the decision not

to suppress the results of that seizure, the failure to grant

Del Rosario's       motion   to   suppress   the   evidence      found   in   the

inventory search was error.6

                                     III.

           For the reasons stated above, we reverse the denial of

the   motion   to    suppress,    vacate    Del Rosario's   conviction,       and

remand for further proceedings.




      6Having found that suppression was required for this reason,
we need not address Del Rosario's alternative argument that the
officers in fact searched the car unlawfully at the scene before
impounding it.


                                    - 17 -
