United States v. Andas-Gallardo, No. 99-4015

Henry, J., concurring in part and dissenting in part,

       I agree with the majority that the district court did not err in denying the

defendant’s motion to suppress the evidence found in the trash outside his residence.

However, I do not agree that the government established that the impoundment of the

defendant’s car was reasonable. I would therefore reverse the district court’s denial of the

motion to suppress on that basis.

       As the majority notes, the validity of an impoundment is generally assessed under

Fourth Amendment standards of reasonableness. See United States v. Haro-Salcedo, 107

F.3d 769, 770-72 (10th Cir. 1997). Police may impound vehicles in the interests of public

safety and as part of their community caretaking functions. See South Dakota v.

Opperman, 428 U.S. 364, 368 (1976). In order to comport with the Fourth Amendment,

an impoundment must be consistent with the exercise of those functions or supported by

probable cause. See United States v. Duguay, 93 F.3d 346, 352 (7th Cir. 1996) (citing

Opperman, 428 U.S. 370 n.5) (“An impoundment must either be supported by probable

cause, or be consistent with the police role as ‘caretaker’ of the streets and completely

unrelated to an ongoing criminal investigation.”). It is the government that bears the

burden of demonstrating the validity of the impoundment. See United States v. Ibarra,

955 F.2d 1405, 1409 (10th Cir. 1992).

       In assessing the validity of an impoundment, we have considered several factors.


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In instances in which impoundment was supported by state statute, we have concluded

that it was reasonable, see Haro-Salcedo, 107 F.3d at 771, but we have reached the

opposite conclusion when the government failed to prove that state law authorized the

police action, see Ibarra, 955 F.2d at 1409. In an instance in which the owner of the car

was able to provide for the removal of the vehicle, thereby rendering impoundment

unnecessary, we found the police action unreasonable. See United States v. Pappas, 735

F.2d 1232, 1234 (10th Cir. 1984).

       In this case, Detective Howell testified that he made the decision to impound Mr.

Andas-Gallardo’s car because he had been arrested and because impoundment was

necessary to protect the car and its contents. In finding this decision to be reasonable, the

district court cited the following factors: (1) there was no evidence in the record as to

what steps the video store would have taken to remove the defendant’s car from the

parking lot; (2) there was no one present at the time of Mr. Andas-Gallardo’s arrest who

could have taken possession of his car, and there was no indication of how long it would

have taken a friend or a family member to take possession of the car; (3) there was

nothing in the record to indicate how safe the car would have been if the police had left it

there after arresting Mr. Andas-Gallardo; and, finally (4) Detective Howell knew that Mr.

Andas-Gallardo was a suspect in a shooting and often carried a gun with him.

       In my view, those factors do not establish that the impoundment was reasonable.

As to the first three factors, I agree with the district court’s assessment of the record’s


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deficiencies. However, because it is the government that has the burden of proof, those

deficiencies should be held against the government rather than the defendant. Thus, it

was the government’s burden to demonstrate that the steps that the video store would

have taken if the car had been left in its parking lot supported its removal by the police. It

was also the government’s burden to demonstrate that no one was available to remove the

car for Mr. Andas-Gallardo and that the car would not have been safe if it had been left in

the parking lot. The fact that the record does not contain sufficient evidence as to those

matters indicates that the government failed to prove that the impoundment was

reasonable.1

       As to the detectives’ suspicion that Mr. Andas-Gallardo’s car might have

contained a gun, I do not think that the applicable decisions authorize the police to

impound a vehicle based on what they suspect it contains. In these circumstances, to

allow such a suspicion to justify impoundment would permit law enforcement officials to

circumvent the well-established requirements for searching vehicles (i.e., probable cause

that it contains contraband or a lawful arrest of the occupants). See Colorado v. Bertine,

479 U.S. 367, 375 (1987) (stating that decisions authorizing impoundment do not



       1
           Moreover, other evidence in the record suggests that it may have been feasible
for someone to have retrieved Mr. Andas-Gallardo’s car. Upon questioning from the
magistrate judge, Detective Howell stated that the video store was seven to eight blocks
from Mr. Andas-Gallardo’s residence. See Rec. supp. vol. I, at 38. Mr. Andas-Gallardo
testified that he asked the detectives about having his car picked up, but there is no
indication that they considered this request.

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“prohibit[] 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 activity”) (emphasis added); Pappas, 735 F.2d at 1234 (concluding

that “Opperman cannot be used to justify the automatic inventory of every car upon the

arrest of its owner”); United States v. Donnes, 752 F. Supp. 411, 421 (D. Wyo. 1990)

(stating that “[a]n inventory search of a vehicle is not a weapon to be used by law

enforcement to contravene the constitution by nullifying the warrant requirement” and

concluding that an impoundment “suggested as an investigatory measure, and on the basis

of suspicion of evidence of criminal activity” was unreasonable). Here, the government

does not argue that the detectives’ suspicion that Mr. Andas-Gallardo’s vehicle contained

a gun provided them with probable cause. As a result, the lesser degree of suspicion on

which the district court relied does not provide justification for the search.

       In summary, I agree with the Seventh Circuit 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 or parking lots.” Duguay, 93 F.3d at 353. Because the

government did not prove that Mr. Andas-Gallardo was unable to provide for such speedy

and efficient removal, I would reverse the district court’s denial of his motion to suppress




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on that ground.2




       2
          I disagree with the majority that Duguay provides modest support for its position.
Although the Seventh Circuit noted that, under Illinois law, impoundments have been
upheld when the driver was the sole occupant of the car and was legitimately arrested, see
93 F.3d at 354 n.3, it also observed that there must be standardized criteria regarding the
circumstances in which a car may be impounded, see id. at 351. Accordingly, I do not
think we are allowed to rely on the criteria established by Illinois law to justify the
impoundment here. Instead, we must assess the justification for impoundment that the
Utah law enforcement officers actually offered—that impoundment was necessary to
protect Mr. Andas-Gallardo’s car and its contents.
       Moreover, the Seventh Circuit also observed that impoundments have been
affirmed in “circumstances in which the arrestee could not provided for speedy and
efficient removal of the car.” Id. at 354 n.3. The government did not establish that Mr.
Andas-Gallardo was afforded that opportunity.

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