United States v. Jesus Cervantes ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50521
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-00358-
JESUS ANTONIO RAMOS CERVANTES,  JFW-1
Defendant-Appellant. ORDER AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
October 4, 2010—Pasadena, California
Filed May 16, 2012
Amended May 17, 2012
Before: Harry Pregerson, Dorothy W. Nelson, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Pregerson;
Dissent by Judge Ikuta
5653
5656 UNITED STATES v. CERVANTES
COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
UNITED STATES v. CERVANTES 5657
Kevin S. Rosenberg, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
ORDER
The opinion filed May 16, 2012, is amended as follows:
The attached photograph shall be inserted at the end of Slip
Op. 5215 and entitled “Appendix A.”
OPINION
PREGERSON, Circuit Judge:
Jesus Antonio Ramos Cervantes appeals the district court’s
denial of his motion to suppress evidence found in his vehicle.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse.
BACKGROUND
On March 25, 2009, Detective Todd Hankel of the Los
Angeles Police Department and his team of narcotics detec-
tives and officers were conducting surveillance of a suspected
narcotics stash house in Pacoima, California. Around 1:20
P.M., Hankel observed an unidentified male arrive at, and
enter, the suspected stash house. A few minutes later, the
unidentified male left the suspected stash house with a large
white box and placed the box inside his truck.
Detective Hankel learned from his police radio that the
unidentified male drove to a nearby street and pulled over to
the curb. Hankel heard over the police radio that the unidenti-
fied male got out of his truck with the white box, walked over
to a white GMC Envoy, and handed the white box to a second
unknown male who was later identified as Cervantes.
5658 UNITED STATES v. CERVANTES
Twenty minutes later, Hankel heard over his radio that Cer-
vantes drove his GMC Envoy to a nearby liquor store. Hankel
observed Cervantes exiting the liquor store with a purchase,
getting inside his GMC Envoy, and driving away.
Shortly thereafter, Hankel heard over his radio that Cervan-
tes drove on Interstate 5 and exited at San Fernando Mission
Road. At this point, Hankel observed Cervantes drive through
a residential neighborhood. It was Hankel’s belief that Cer-
vantes did not take a direct route to his location. Hankel con-
cluded that this was a “counter-surveillance” driving
technique that indicated Cervantes was engaging in narcotics
trafficking. At this point, according to Hankel, “probable
cause existed to believe that Cervantes was engaging in drug
trafficking and had a large quantity of narcotics in his posses-
sion.” Hankel, however, did not attempt to stop Cervantes.
At approximately 2:00 P.M., Hankel heard over his police
radio that Cervantes drove to a residence on Polk Street. Han-
kel drove by the residence and saw Cervantes’s GMC Envoy
parked on the street. Hankel heard over his radio that Cervan-
tes remained inside the GMC Envoy for approximately five
minutes, got out empty handed, and went inside an unknown
residence.
At 5:30 P.M., Hankel heard over his police radio that Cer-
vantes and an unknown male left the residence on Polk Street
in a white BMW. Forty-five minutes later, Hankel heard that
Cervantes and the unknown male returned in the white BMW
to the residence on Polk Street. After about one hour, Cervan-
tes returned to his GMC Envoy and went to the rear hatch
area of the vehicle. A few minutes later, Hankel heard that
Cervantes left the Polk Street residence in the GMC Envoy.
At this point, Hankel asked a marked police unit to develop
a lawful reason to conduct a traffic stop.
In response to Hankel’s request, Officer Sanchez and Offi-
cer Colley stopped Cervantes’s GMC Envoy after the vehicle
UNITED STATES v. CERVANTES 5659
failed to come to a complete stop behind the limit line at an
intersection. Cervantes cleared the intersection and, according
to Officer Colley, pulled to the curb appropriately when the
officers stopped him. During the traffic stop, Sanchez and
Colley asked Cervantes for his license, registration, and proof
of insurance. Cervantes looked around, but was unable to
locate any of the documents. Colley asked Cervantes to step
out of the car and performed a pat down search for weapons.
Cervantes told Officer Sanchez that he had been arrested pre-
viously for driving under the influence, his license had been
taken away, and he was currently attending classes. After
finding no record of driver’s license under the name Cervan-
tes provided, the officers concluded that Cervantes was driv-
ing without a license, and decided to impound and search his
vehicle.
During the inventory search of the vehicle, Officer Colley
located the white cardboard box in the rear passenger seat. A
search of the box revealed that it contained approximately two
kilograms of cocaine. After the discovery of cocaine, the offi-
cers arrested Cervantes for unlawfully transporting narcotics.
Once Cervantes was transported to a police station, booked,
and positively identified, Department of Motor Vehicles
records confirmed that he did, in fact, have a valid driver’s
license.
Cervantes moved to suppress the cocaine found in his
GMC Envoy, claiming that officers searched his vehicle in
violation of the Fourth Amendment. The district court denied
Cervantes’s motion to suppress, finding that the officers had
lawfully impounded Cervantes’s vehicle pursuant to Califor-
nia Vehicle Code §§ 12500(a), 14602.6(a)(1), 22651(h)(1),
and LAPD policy, and that the impoundment and search were
justified under the community caretaking exception to the
Fourth Amendment’s warrant requirement. In the alternative,
the district court found that the officers had probable cause to
search Cervantes’s vehicle and, consequently, held that the
5660 UNITED STATES v. CERVANTES
search was valid under the automobile exception to the Fourth
Amendment’s warrant requirement.
STANDARD OF REVIEW
We review the district court’s denial of a motion to sup-
press evidence de novo. United States v. Dorsey, 418 F.3d
1038, 1042 (9th Cir. 2005), overruled on other grounds by
Arizona v. Gant, 556 U.S. 332, 343-44 (2009). Underlying
factual issues are reviewed for clear error. United States v.
Summers, 268 F.3d 686, 686 (9th Cir. 2001).
DISCUSSION
A. The Automobile Exception
[1] Warrantless searches by law enforcement officers “are
per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967).
Under the automobile exception to the Fourth Amendment’s
warrant requirement, “[t]he police may search an automobile
and the containers within it where they have probable cause
to believe contraband or evidence is contained.” California v.
Acevedo, 500 U.S. 565, 580 (1991). An officer will have
probable cause to search if “there is a fair probability that
contraband or evidence of a crime will be found in a particu-
lar place, ‘based on the totality of circumstances.’ ” Dawson
v. City of Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006) (quot-
ing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Here, the government contends that the officers had proba-
ble cause to search Cervantes’s vehicle based on (1) Hankel’s
conclusory statement that the box in Cervantes’s possession
came from a “suspected narcotics stash house,” and (2) Han-
kel’s observation that Cervantes “did not take a direct route
to his location.” As explained below, these assertions fail to
establish probable cause.
UNITED STATES v. CERVANTES 5661
1. The Suspected Narcotics Stash House
The government asks us to place heavy reliance on Han-
kel’s conclusory statement that, based on Hankel’s training
and experience, the white box in Cervantes’s possession came
from a “suspected narcotics stash house.” But in the absence
of any underlying facts as to why Hankel suspected the house
was a “stash house,” this statement is entitled to little, if any,
weight in the probable cause analysis.
[2] “One of the themes which runs through the decisions
on the Fourth Amendment probable cause requirement is that
when the ultimate probable cause determination is made,
whether by a magistrate when a warrant is sought or upon a
motion to suppress evidence obtained without a warrant, mere
conclusions will not suffice.” 2 Wayne Lafave, Search and
Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297
(4th ed. 2004). See, e.g., Illinois v. Gates, 462 U.S. at 239(noting that “wholly conclusory” statements of officers are
insufficient to establish probable cause); United States v. Ven-
tresca, 380 U.S. 102, 108-09 (1965) (noting that “purely con-
clusory” statements of officers, without detailing any of the
underlying circumstances, will be insufficient to establish
probable cause); Nathanson v. United States, 290 U.S. 41, 47
(1933) (noting that an officer’s “mere affirmance of suspicion
or belief without disclosure of supporting facts or circum-
stances” is insufficient to establish probable cause).
[3] In United States v. Thomas, we noted that a conclusory
allegation by law-enforcement that a particular house was a
suspected narcotics stash house, was entitled to little (if any)
weight in determining whether officers had satisfied the lower
reasonable suspicion standard required to stop a vehicle leav-
ing the house. 211 F.3d 1186, 1189-90 (9th Cir. 2000). We
explained that the conclusory allegation, without any founda-
tional facts, was akin to an anonymous tip and, consequently,
was entitled to little weight. Id. at 1190.
5662 UNITED STATES v. CERVANTES
[4] Here, as in Thomas, Hankel’s statements amount to
nothing more than conclusory assertions. Hankel failed to
provide any underlying facts as to why he, or any other offi-
cers, suspected the house was a “narcotics stash location.”
While Hankel’s training and experience are factors to be con-
sidered, “it is incumbent upon the arresting or searching offi-
cer to explain the nature of his expertise or experience and
how it bears upon the facts which prompted the officer to
arrest or search.” 2 Wayne Lafave, Search and Seizure: A
Treatise on the Fourth Amendment § 3.2(c), at 45 (4th ed.
2004) (internal quotation marks omitted). Conclusory state-
ments and a general claim of expertise will not suffice. Id.;
Thomas, 211 F.3d at 1189-92.
2. Cervantes’s Failure to Take a Direct Route to His
Location
The government also urges us to rely on Hankel’s observa-
tion that Cervantes “did not take a direct route to his loca-
tion.” Cervantes’s unremarkable driving practices, however,
fall short of any indicia of criminal activity.
[5] In United States v. Del Vizo, we found that officers had
probable cause to arrest Del Vizo for narcotics trafficking
after they received an anonymous tip and observed Del Vizo
and his associates over the course of five days. 918 F.2d 821,
822 (9th Cir. 1990). During their five days of surveillance,
officers observed Del Vizo and his associates make multiple
trips to various Western Union Offices, engage in counter-
surveillance driving techniques (which included circling the
area, U-turns, speeding, and pulling over to the curb to let
traffic go by), frequently check their rear view mirrors, use
payphones, and drive in tandem. Id. at 822-23, 826. In
reviewing the aforementioned facts, we noted that the ques-
tion of probable cause was a “close one,” but nevertheless
found that officers had probable cause to arrest Del Vizo. Id.
at 827.
UNITED STATES v. CERVANTES 5663
[6] In contrast to the myriad driving and travel tactics cited
in Del Vizo, the observations of officers in this case were
exceedingly limited. Specifically, Hankel’s suspicions were
based in large part on the observation that Cervantes “did not
take a direct route to his location” because Cervantes exited
the freeway and drove through a residential neighborhood.
Officers observed none of the counter-surveillance techniques
present in Del Vizo, and Hankel’s declaration—upon which
the district court relies—provides no further indication as to
why Cervantes’s driving behavior should be considered suspi-
cious.
Much of the activity described by Hankel is consistent with
perfectly innocent behavior. For example, Hankel notes in his
declaration that “[he] heard over [his] police radio that Cer-
vantes drove to a nearby liquor store and parked in front. [He]
saw Cervantes come out of the liquor store with a purchase,
get inside the GMC, and start driving again.” While seem-
ingly innocent conduct may carry a different message to a
trained officer, Del Vizo, 918 F.2d at 827, it is difficult to
imagine what inference a trained officer could draw from this
activity, other than that Cervantes entered a liquor store and
exited with a purchase.
[7] In sum, Hankel’s observations regarding Cervantes’s
benign travel tactics, when coupled with Hankel’s conclusory
statement about the box in Cervantes’s possession, are insuffi-
cient to establish probable cause. See Thomas, 211 F.3d at
1192. This is only reinforced by Hankel’s request that Offi-
cers Colley and Sanchez develop a lawful reason to stop Cer-
vantes. Had probable cause existed to stop Cervantes, there
would have been no need to develop an independent reason
to pull Cervantes over. Thus, the district court erred when it
held that the search was valid under the automobile exception
to the Fourth Amendment’s warrant requirement.
B. The Community Caretaking Exception
We next consider whether the impoundment and subse-
quent inventory search of Cervantes’s vehicle were justified
5664 UNITED STATES v. CERVANTES
by the community caretaking exception to the Fourth Amend-
ment’s warrant requirement. Cervantes contends the govern-
ment failed to meet its burden of establishing that the
impoundment of his vehicle was justified under this excep-
tion. We agree.
[8] Because warrantless searches and seizures are per se
unreasonable, the government bears the burden of showing
that a warrantless search or seizure falls within an exception
to the Fourth Amendment’s warrant requirement. United
States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001). Under
the community caretaking exception, “police officers may
impound vehicles that jeopardize public safety and the effi-
cient movement of vehicular traffic.” Miranda v. City of Cor-
nelius, 429 F.3d 858, 864 (9th Cir. 2005) (internal quotation
marks omitted). Once a vehicle has been legally impounded,
the police may conduct an inventory search, as long as it con-
forms to the standard procedures of the local police depart-
ment. South Dakota v. Opperman, 428 U.S. 364, 375-76
(1976); see also United States v. Wanless, 882 F.2d 1459,
1463 (9th Cir. 1989). However, “an inventory search must not
be a ruse for a general rummaging in order to discover incrim-
inating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990).
[9] In Miranda v. City of Cornelius, we considered
“whether probable cause to believe that the driver committed
a traffic violation is sufficient justification by itself to make
the impoundment of the vehicle reasonable under the Fourth
Amendment.” 429 F.3d at 864. Quoting the Supreme Court’s
decision in Opperman, we answered in the negative, conclud-
ing that the reasonableness of the impoundment depended on
“whether the impoundment fits within the ‘authority of police
to seize and remove from the streets vehicles impeding traffic
or threatening public safety and convenience . . . .’ ” Id. (quot-
ing Opperman, 428 U.S. at 369). In other words, “a valid
caretaking purpose” is required. Id.[10] Following both Opperman and our decision in
Miranda, we have held that
UNITED STATES v. CERVANTES 5665
[W]arrantless inventory searches of vehicles are law-
ful only if conducted pursuant to standard police pro-
cedures that are aimed at protecting the owner’s
property and at protecting the police from the owner
charging them with having stolen, lost, or damaged
his property. Additionally, a vehicle can be
impounded under [California Vehicle Code]
§ 22651(h)(1) only if impoundment serves some
“community caretaking function.”
United States v. Caseres, 533 F.3d 1064, 1074 (9th Cir. 2008)
(internal citation omitted). In Caseres, we found the inventory
search to be unconstitutional—even though the driver was
driving on a suspended license—because the government
presented no evidence that the impoundment served any care-
taking function. Id. at 1075. As we stated in Caseres, if “the
government fail[s] to establish a community caretaking func-
tion for the impoundment” then it “fail[s] to establish the con-
stitutional reasonableness of the seizure and subsequent
inventory search.” Id.[11] Neither Sanchez nor Colley provided any testimony
that Cervantes’s vehicle was parked illegally, posed a safety
hazard, or was vulnerable to vandalism or theft. To the con-
trary, Officer Colley testified that Cervantes appropriately
pulled over to the curb when he was stopped in a residential
neighborhood. While it is true that Cervantes’s vehicle was
not in close proximity to his home at the time it was
impounded, cf. Caseres, 533 F.3d at 1075 (noting that defen-
dant’s vehicle was two houses away from his home), the gov-
ernment presented no evidence that the vehicle would be
vulnerable to vandalism or theft if it were left in its residential
location, or that it posed a safety hazard, and thus failed to
meet its burden to show that the community caretaking excep-
tion applied. Id.; Hallstrom v. City of Garden City, 991 F.2d
1473, 1477 n.4 (9th Cir. 1993) (upholding the towing of a car
5666 UNITED STATES v. CERVANTES
from a public parking lot, not a residential street, under the
community caretaking exception).1
[12] Nor can the government justify the impoundment by
simply citing to sections of the California Vehicle Code and
the LAPD’s policy on impoundments and inventory searches.
The fact that an impoundment complies with a state statute or
police policy, by itself, is insufficient to justify an impound-
ment under the community caretaking exception. See
Miranda, 429 F.3d at 864 (“We begin with the premise,
apparently not recognized by the Defendants, that the decision
to impound pursuant to the authority of a city ordinance and
1
To support the dissent’s argument that the government has met its
heavy burden, the dissent refers to a photograph that depicts nothing more
than a wide street in a residential neighborhood and an illegible sign on
the side of the street. The focus of this photograph is not where the gov-
ernment stopped Cervantes, which Officer Colley testified was “at the top
of [the] hill.” Rather, the focus is on the Polk Street / Laurel Canyon Bou-
levard intersection. In fact, the photograph does not even show where the
top of the hill is. Based solely on this inconclusive photograph, the dissent
infers that “[a]n abandoned car in this location would have been a hazard
to other drivers, as well as vulnerable to damage, vandalism, or theft.”
Dissent at 5671. The government, however, has failed to refer to, cite, or
even mention the attached exhibit in any of its briefs. In fact, the govern-
ment concedes that “the record is not developed as to whether defendant’s
vehicle was actually impeding traffic or posing a safety hazard when offi-
cers conducted their traffic stop . . . . “ Thus, the government has waived
any argument that this photograph demonstrates that the officers could
have legally impounded Cervantes’s vehicle as a safety hazard. United
States v. Vizcarra-Martinez, 66 F.3d 1006, 1011 (9th Cir. 1995). Even
were the argument not waived, this single photograph is not enough to
meet the government’s heavy burden to establish that the seizure of Cer-
vantes’s vehicle was warranted. United States v. Hawkins, 249 F.3d 867,
872 (9th Cir. 2001) (holding that the “burden is on the Government to per-
suade the district court that a seizure comes under one of a few specifi-
cally established exceptions to the warrant requirement” (internal
quotation marks and citation omitted)); United States v. Howard, 828 F.2d
552, 555 (9th Cir. 1987) (describing this as a “heavy” burden and one
which can not be “satisfied by speculation”). “It is not our role to engineer
a path for the Government to meet that burden . . . .” United States v. Rod-
gers, 656 F.3d 1023, 1028 n. 5 (9th Cir. 2011).
UNITED STATES v. CERVANTES 5667
state statute does not, in and of itself, determine the reason-
ableness of the seizure under the Fourth Amendment . . . .”).
“[T]he decision to impound a vehicle after the driver has vio-
lated a vehicle regulation must consider the location of the
vehicle, and whether the vehicle was actually ‘impeding traf-
fic or threatening public safety and convenience’ on the
streets, such that impoundment was warranted.” Id. at 865
(quoting Opperman, 428 U.S. at 369). No such showing was
made here.
Moreover, it is not clear that Officers Colley and Sanchez
even complied with the California Vehicle Code when they
impounded Cervantes’s vehicle. According to California
Vehicle Code § 22651(h)(1), an officer may impound and
remove a vehicle “[w]hen an officer arrests a person driving
or in control of a vehicle for an alleged offense and the officer
is, by this code or other law, required or permitted to take,
and does take, the person into custody.” Cal. Vehicle Code
§ 22651(h)(1) (emphases added). Pursuant to California Vehi-
cle Code § 14602.6(a)(1), “[w]henever a peace officer deter-
mines that a person was driving a vehicle while his or her
driving privilege was suspended or revoked . . . the peace offi-
cer may either immediately arrest that person and cause the
removal and seizure of that vehicle or, if the vehicle is
involved in a traffic collision, cause the removal and seizure
of the vehicle without the necessity of arresting the person
. . . .” Cal. Vehicle Code § 14602.6(a)(1) (emphases added).
While the purported reason for the impoundment of Cervan-
tes’s car was his alleged driving without a license, in violation
of California Vehicle Code § 12500(a), according to both offi-
cers, Cervantes was arrested and taken into custody only after
the vehicle was impounded and the inventory search had
already resulted in the discovery of narcotics.
Finally, local police department policies that give officers
discretion to choose whether to impound a vehicle are not
improper so long as police discretion is exercised “according
to standard criteria and on the basis of something other than
5668 UNITED STATES v. CERVANTES
suspicion of evidence of criminal activity.” Colorado v. Ber-
tine, 479 U.S. 367, 375 (1987); see also Whren v. United
States, 517 U.S. 806, 811-12 (1996) (“[W]e [have] never held,
outside the context of inventory search or administrative
inspection . . . that an officer’s motive invalidates objectively
justifiable behavior under the Fourth Amendment”) (emphasis
added); United States v. Taylor, 636 F.3d 461, 465 (8th Cir.
2011) (“[The officer’s] testimony leads us to conclude that the
search was conducted because police believed they would
find evidence of narcotics in [the defendant’s] truck, and thus
the inventory was merely a pretext for an investigatory
search.”).
[13] Here, Cervantes argues that the community caretaking
exception does not apply because the impoundment and sub-
sequent inventory search of his vehicle was a pretext to search
for narcotics. We agree. We reach this conclusion based on
the fact that Officers Sanchez and Colley stopped Cervantes’s
vehicle at the direction of Detective Hankel, who was investi-
gating Cervantes for narcotics trafficking. Officers Sanchez
and Colley both stated that LAPD narcotics detectives had
informed them that they were investigating suspected narcot-
ics trafficking by Cervantes and that they were asked to assist
with the investigation by conducting a lawful traffic stop of
Cervantes’s vehicle. The happy accident of not finding Cer-
vantes’s driver’s license—the existence of a valid license was
confirmed shortly thereafter—cannot excuse the officers’
investigatory motive for the vehicle impoundment and inven-
tory search. See Wells, 495 U.S. at 4 (“[A]n inventory search
must not be a ruse for a general rummaging in order to dis-
cover incriminating evidence.”).
[14] In sum, on this record, the impoundment of Cervan-
tes’s vehicle was not justified by the community caretaking
exception to the Fourth Amendment’s warrant requirement.
The district court’s contrary holding was error.
UNITED STATES v. CERVANTES 5669
CONCLUSION
Evidence seized in violation of the Fourth Amendment,
including any “fruit of the poisonous tree,” may not be used
in a criminal proceeding against the victim of the illegal
search and seizure. Wong Sun v. United States, 371 U.S. 471,
487 (1963); Mapp v. Ohio, 367 U.S. 643, 656 (1961). Accord-
ingly, we REVERSE the district court’s denial of Cervantes’s
motion to suppress and REMAND for further proceedings
consistent with this opinion.
IKUTA, Circuit Judge, dissenting:
We’ve given police a simple, common-sense rule to deal
with vehicles that are left unattended because the driver has
been placed under arrest. No complex legal analysis is
required. The police merely have to determine whether it’s
necessary to remove the vehicle from a public location in
order to “prevent it from [1] creating a hazard to other drivers
or [2] being a target for vandalism or theft.” Miranda v. City
of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005); see also
United States v. Jensen, 425 F.3d 698, 706 (9th Cir. 2005)
(holding that once an arrest is made, the community caretak-
ing doctrine “allow[s] law enforcement officers to seize and
remove any vehicle which may impede traffic, threaten public
safety, or be subject to vandalism”). If the officers determine
that either prong of this simple test is met, they may impound
the vehicle in furtherance of their community caretaking func-
tion. See Miranda, 429 F.3d at 863-65.
But today, the majority wipes out this simple rule. The facts
of this case meet the community caretaking test perfectly, and
yet the majority holds that the doctrine is not applicable.
Because the majority cannot articulate what distinguishes this
case, it appears the majority has silently overruled our long
5670 UNITED STATES v. CERVANTES
line of precedents establishing the community caretaking doc-
trine.
Let’s start with the facts of this case. The district court
determined that the police made a lawful traffic stop and
properly arrested the defendant for driving without a valid
driver’s license.1 The district court found that Cervantes’s car
was many miles from his home and there was no licensed pas-
senger to drive the car back to his home. These findings are
not clearly erroneous. See United States v. Feldman, 788 F.2d
544, 550 (9th Cir. 1986) (“We uphold a district court’s find-
ings of fact at a suppression hearing unless they are clearly
erroneous.”), cert. denied, 479 U.S. 1067 (1987). Therefore,
as the district court concluded, it was reasonable for the offi-
cers to impound the car to protect it from vandalism or theft.
Our precedent compels us to affirm. For example, in
Ramirez v. City of Buena Park, an officer impounded a man’s
vehicle for safekeeping after arresting him on suspicion of
drunk driving. 560 F.3d 1012, 1016-19 (9th Cir. 2009). The
car was legally parked in a drugstore parking lot a little over
a mile from the man’s home. Id. at 1019. We held that the
impoundment was justified by the community caretaking doc-
trine because (1) there was “nothing in the record indicating
when Ramirez could return to the drugstore to retrieve his
car,” and (2) “[l]eaving Ramirez’s car in the drugstore parking
lot would have made it an easy target for vandalism or theft.”
Id. at 1025. The exact same factors are applicable in this case.
See id.; see also Hallstrom v. City of Garden City, 991 F.2d
1The majority does not dispute that the police officers had probable
cause to arrest Cervantes for driving without a valid license when they
decided to impound his vehicle. Cervantes could not produce a copy of his
license upon request, and when the officers told him they could not find
a valid driver’s license for him in their database, Cervantes told the offi-
cers that he had been arrested for driving under the influence, that his
license had been taken away, and that he was taking classes. In these cir-
cumstances, any reasonable officer would have arrested Cervantes to pre-
vent him from driving off illegally.
UNITED STATES v. CERVANTES 5671
1473, 1477 n.4 (9th Cir. 1993) (holding that officers’
impoundment of an arrestee’s car from a private parking lot
“to protect the car from vandalism or theft” was reasonable
under the community caretaking doctrine).2
Because this case is on all fours with our precedent, it’s not
surprising that the majority is unable to explain why this case
doesn’t meet our community caretaking standard. The major-
ity gives three reasons for reaching this conclusion, and none
of them withstands scrutiny. First, the majority relies on the
fact that the police officers did not expressly testify that the
vehicle was “parked illegally, posed a safety hazard, or was
vulnerable to vandalism or theft.” Maj. op. at 5665. But we
have never held that the lack of testimony on these points is
a fatal flaw; rather, we have concluded that a vehicle left unat-
tended in an exposed or public location when the driver is
taken into custody is necessarily vulnerable to vandalism or
theft. See Ramirez, 560 F.3d at 1025; Hallstrom, 991 F.2d at1477 n.4. Here, the record clearly shows that the arresting
officers had good reason to impound Cervantes’s car. At the
suppression hearing, the government introduced a photograph
(attached here) showing the exact location where Cervantes
was pulled over. One of the arresting officers testified that he
pulled Cervantes over “just at the top of the hill that you see
in the photograph,” after Cervantes had turned left from Polk
Street onto the southbound side of Laurel Canyon Boulevard
in Pacoima. The photograph reveals the danger of the situa-
tion: Cervantes’s car would have been parked at the curb of
a four-lane boulevard where there was no apparent parking
lane or shoulder, and where the posted speed limit was 40
miles per hour. Not only would an abandoned car in this loca-
tion have been vulnerable to damage, vandalism, or theft, as
2
The majority attempts to distinguish Hallstrom on the ground that it
involved impoundment of a vehicle from a parking lot, maj. op. at
5665-66, but provides no explanation as to why a vehicle is an easier tar-
get for vandalism or theft in a private parking lot than it would be on the
street.
5672 UNITED STATES v. CERVANTES
the district court found, but it also would have been a hazard
to other drivers.3
Second, the majority argues that the officers were not enti-
tled to impound Cervantes’s car under state law because they
arrested Cervantes after impounding the vehicle, instead of
before. This, too, is incorrect. Under California Vehicle Code
§§ 22651(h)(1) and 14602.6(a)(1), the impoundment must be
incident to an arrest, but neither section specifies whether
arrest or impoundment should happen first.4 The district court
found that the police officers did not impound and search Cer-
vantes’s vehicle until they had probable cause to arrest Cer-
vantes for driving without a valid license. The court therefore
reasonably concluded that the impoundment was contempora-
neous with and incident to the decision to arrest, in accor-
dance with both the California Vehicle Code and Los Angeles
Police Department policy.
Finally, the majority asserts that the impoundment was
invalid because the subjective reason Officers Colley and San-
3
The majority attempts to distract attention from the photographic evi-
dence that Cervantes’s car was pulled over on a major thoroughfare by
arguing that the photograph itself does not prove that Cervantes’s car
would impede traffic or pose a safety hazard. Maj. op. at 5665-67 n.1. This
is a red herring, of course, because the government has no obligation to
prove that a car would be a safety hazard in order to meet the requirements
of the community caretaking doctrine. Rather, the government needs to
show only that a car would be “an easy target” for vandalism or theft—
which may be the case even if it’s parked in a parking lot. Ramirez, 560
F.3d at 1025. The government easily carried this burden, and the majori-
ty’s strenuous assertions to the contrary are unsupported by any case law.
4
See Cal. Vehicle Code § 22651(h)(1) (the police may impound a vehi-
cle “[w]hen an officer arrests a person driving or in control of a vehicle
for an alleged offense and the officer is, by this code or other law, required
or permitted to take, and does take, the person into custody”); Cal. Vehicle
Code § 14602.6(a)(1) (“Whenever a peace officer determines that a person
was driving a vehicle while his or her driving privilege was suspended or
revoked, . . . the peace officer may . . . immediately arrest that person and
cause the removal and seizure of that vehicle . . . .”).
UNITED STATES v. CERVANTES 5673
chez impounded Cervantes’s vehicle was to further Officer
Hankel’s narcotics investigation, rather than to carry out a
community caretaking function. But there is nothing in the
record supporting the majority’s speculation that the police
impounded his car in bad faith or for the sole purpose of
investigation. Cf. Colorado v. Bertine, 479 U.S. 367, 372, 376
(1987) (upholding an impoundment and inventory search
where the defendant made no showing that the police, who
were following standardized procedures, acted in bad faith or
for the sole purpose of investigation). As the district court
explained at the suppression hearing, the record indicated
only that the traffic stop was for the purpose of investigation,
which is permissible under United States v. Whren, 517 U.S.
806, 813 (1996). Regardless of the police officers’ motives
for conducting the initial traffic stop, once they determined
that they had probable cause to arrest Cervantes for driving
without a valid license, they could reasonably decide to
impound the vehicle in order to prevent vandalism or theft
under the community caretaking doctrine. And that’s exactly
how the officers explained their decision: “Since the driver
was driving without a valid driver’s license, in violation of
California Vehicle Code Section 12500(a), we decided to
impound the GMC pursuant to LAPD policy and California
Vehicle Code Section 22651.” The district court credited the
officers’ explanation and determined there was no evidence
that the impoundment or inventory search of the GMC was
driven by the officers’ investigatory motives. This finding of
fact was not clearly erroneous. See Feldman, 788 F.2d at 550.5
5
Even if the officers were also interested in discovering evidence or
contraband, so long as an officer “had dual bona fide motives,” an investi-
gatory motive does not invalidate an otherwise lawful impoundment and
inventory search. See United States v. Bowhay, 992 F.2d 229, 231 (9th Cir.
1993). “When the police conduct would have been the same regardless of
the officer’s subjective state of mind, no purpose is served by attempting
to tease out the officer’s ‘true’ motivation.” Id.; see also United States v.
McCarty, 648 F.3d 820, 833 (9th Cir. 2011).
5674 UNITED STATES v. CERVANTES
Because not one of the majority’s reasons for reversing the
district court’s well-supported conclusion holds water, police
officers are left with a question mark. In the future, when is
a police officer entitled to impound a vehicle that is left unat-
tended after the driver has been arrested? This opinion pro-
vides no guidance, but rather it muddies the clear rule we had
previously established. Because the majority’s ruling here is
contrary to both case law and common sense, I respectfully
dissent.
UNITED STATES v. CERVANTES 5675
Appendix A.