                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 23 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-50361

              Plaintiff - Appellee,               D.C. No. 2:12-cr-00295-R-1

  v.
                                                  MEMORANDUM*
CLAUDIO BURGOS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted October 7, 2013
                               Pasadena, California

Before: PREGERSON, WARDLAW, and TALLMAN, Circuit Judges.

       Claudio Burgos (“Burgos”) appeals his conviction, pursuant to a conditional

guilty plea, for possession with intent to distribute heroin in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(i). Burgos preserved his right to appeal the denial of his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion to suppress evidence. We have jurisdiction under 28 U.S.C. § 1291, and

we reverse.

      We review de novo the district court’s denial of a motion to suppress

evidence and review underlying factual findings for clear error. United States v.

Ewing, 638 F.3d 1226, 1229 (9th Cir. 2011).

      On March 7, 2012, Los Angeles County Sheriff’s Department (“LASD”)

Deputy Joseph Tellez (“Tellez”) pulled Burgos over for a moving violation.

Burgos told Tellez that he did not have a driver’s license. After placing Burgos in

his patrol car, Tellez performed a license check that confirmed Burgos did not have

a license, and revealed that Burgos had an open warrant for driving without a

license. Tellez arrested Burgos for the outstanding warrant and for driving without

a license.

      Pursuant to Cal. Vehicle Code § 14602.6(a),1 Tellez searched the vehicle

prior to having it towed, which is standard LASD procedure. Tellez found and

seized 209 grams of heroin from the vehicle.

      Warrantless searches by law enforcement officers “are per se unreasonable

under the Fourth Amendment—subject only to a few specifically established and

      1
        California Vehicle Code § 14602.6(a) allows an officer to remove and seize
a vehicle once it has been determined that the driver of the vehicle is driving
without having been issued a driver’s license.

                                         2
well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967)

(emphasis added). One exception to the Fourth Amendment’s warrant requirement

is the “community caretaking” exception. Cady v. Dombrowski, 413 U.S. 433, 441

(1973). Under this exception, “police officers may impound vehicles that

jeopardize public safety and the efficient movement of vehicular traffic.” Miranda

v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005). Once a vehicle is legally

impounded pursuant to a community caretaking function, officers may conduct an

inventory search that conforms to standard procedures of local law enforcement.

See South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976).

      “Because warrantless . . . seizures are per se unreasonable, the government

bears the burden of showing that a warrantless . . . seizure falls within an exception

to the Fourth Amendment’s warrant requirement.” United States v. Cervantes, 703

F.3d 1135, 1141 (9th Cir. 2012) (citing United States v. Hawkins, 249 F.3d 867,

872 (9th Cir. 2001)).

      Here, the district court found that the officer’s decision to tow the car was

justified under the community caretaking exception and denied Burgos’s motion to

suppress. After reviewing the record, we conclude that the district court erred

when it denied Burgos’s motion to suppress because the government failed to carry

its burden of proof that the community caretaking exception applied.


                                          3
        Our jurisprudence on the community caretaking exception is clear: the

location of the traffic stop matters. In Cervantes, we held that the government

failed to demonstrate that the community caretaking exception applied to the

impoundment of the defendant’s car because the government presented no

evidence that the vehicle impeded traffic, posed a safety hazard, or was vulnerable

to vandalism or theft. 703 F.3d at 1141-42. Cervantes controls because the

government relied solely upon the community caretaking exception and did not

offer evidence required to justify applying that exception.2 Just as in Cervantes,

here, the government presented no evidence that Burgos’s vehicle was “parked

illegally, posed a safety hazard, or was vulnerable to vandalism or theft.” Id. at

1141.

        The only evidence the government offered concerning the location of

Burgos’s vehicle was that Tellez observed Burgos exiting the freeway and

“traveling northbound on Eagle Rock Boulevard, approaching El Paso Drive in

Los Angeles,” before Tellez initiated the traffic stop. The articulation of street



        2
        Because neither the parties nor the district court had the benefit of our
decision in Cervantes at the time of the suppression hearing, on remand the district
court may reopen the record so that the Cervantes requirements—namely whether
the vehicle impeded traffic, posed a safety hazard, or was vulnerable to vandalism
or theft—may be addressed by the parties. The reopening of the record is only for
the purpose of addressing the community caretaking exception.

                                           4
names tells the court next to nothing about the street where Burgos’s vehicle was

stopped, the characteristics of the street, or where exactly Burgos pulled over on

the street.

       On appeal, the government attached to its brief Google Street View images

that allegedly depict the intersection of Eagle Rock Boulevard and El Paso Drive.

This was a vain attempt by the government to offer evidence not presented to the

district court to demonstrate that impoundment was warranted by community

caretaking concerns. We reject such an attempt to supplement the record. See

Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (“Only the court may

supplement the record.”)

       The government failed to offer evidence to satisfy the community caretaking

exception, and thus failed to establish that the impoundment of Burgos’s vehicle

satisfied the exception to the Fourth Amendment’s warrant requirement. Because

the “government failed to establish a community caretaking function for the

impoundment,” the government “failed to establish the constitutional




                                          5
reasonableness of the seizure and subsequent inventory search.” United States v.

Caseres, 533 F.3d 1064, 1075 (9th Cir. 2008).3

      We believe the appearance of justice would best be served by remand to

another judge. See United States v. Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012)

(identifying the preservation of the appearance of justice as a factor relevant to

whether reassignment is appropriate). Here, the district court’s statements about

the case at the suppression hearing raise questions about the court’s impartiality on

remand. Moreover, the record below consists of approximately sixty-four pages of

testimony, declarations, exhibits, legal briefing, and oral argument. Thus,

reassignment on remand would entail minimal duplication of effort and waste, and

these concerns would not outweigh the “gain in preserving appearance of fairness.”

Id. (identifying the entailment of waste and duplication as a factor relevant to

whether reassignment is appropriate).

      REVERSED and REMANDED with instructions that this case be

reassigned on remand.




      3
        Because the government relied solely on impoundment to justify Tellez’s
search of the vehicle, and we find that the government failed to justify the
impoundment, we do not reach the issue whether Tellez’s search of the vehicle was
properly within the permissible scope of a valid inventory search.

                                           6
