United States v. Jesus Cervantes

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-JFW-1
JESUS ANTONIO RAMOS ORDER AND
CERVANTES, AMENDED
Defendant - Appellant. 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 November 28, 2012
Before: Harry Pregerson, Dorothy W. Nelson,
and Sandra S. Ikuta, Circuit Judges.
Order;
Opinion by Judge Pregerson;
Dissent by Judge Ikuta
2 UNITED STATES V . CERVANTES
SUMMARY*
Criminal Law
The panel reversed the district court’s denial of the
defendant’s motion to suppress evidence found in his vehicle,
and remanded for further proceedings.
The panel held that the district court erred when it held
that the search of the vehicle was valid under the automobile
exception to the Fourth Amendment’s warrant requirement.
The panel wrote that a detective’s observations regarding the
defendant’s benign travel tactics, when coupled with the
detective’s conclusory statement about a box in the
defendant’s possession, are insufficient to establish probable
cause to believe the vehicle contained contraband.
The panel also held that the impoundment of the
defendant’s vehicle was not justified by the community
caretaking exception to the Fourth Amendment’s warrant
requirement, where officers provided no testimony that the
vehicle was parked illegally, posed a safety hazard, or was
vulnerable to vandalism or theft; where it is not clear the
officers complied with the California Vehicle Code when
they impounded the vehicle; and where the impoundment and
subsequent inventory search was a pretext to search for
narcotics.
Dissenting, Judge Ikuta wrote that the majority wipes out
this court’s simple, common-sense rule for determining if a
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . CERVANTES 3
vehicle may be impounded in furtherance of police officers’
community caretaking function, and that the facts of this case
meet that test perfectly.
COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.
Kevin S. Rosenberg, Assistant United States Attorney, Los
Angeles, California, for Plaintiff-Appellee.
ORDER
The majority opinion and dissent in this case have been
amended and filed. The majority has voted to not entertain
future petitions for rehearing. No future petitions for
rehearing will be entertained, and the mandate shall issue
forthwith.
IT IS SO ORDERED.
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.
4 UNITED STATES V . CERVANTES
BACKGROUND
On March 25, 2009, Detective Todd Hankel of the Los
Angeles Police Department and his team of narcotics
detectives 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
unidentified 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.
Twenty minutes later, Hankel heard over his radio that
Cervantes 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
Cervantes 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 Cervantes did not take a direct route to his
location. Hankel concluded 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
UNITED STATES V . CERVANTES 5
narcotics in his possession.” 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.
Hankel drove by the residence and saw Cervantes’s GMC
Envoy parked on the street. Hankel heard over his radio that
Cervantes 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
Cervantes 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, Cervantes 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
Officer Colley stopped Cervantes’s GMC Envoy after the
vehicle 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 previously for driving
6 UNITED STATES V . CERVANTES
under the influence, his license had been taken away, and he
was currently attending classes. After finding no record of a
driver’s license under the name Cervantes provided, the
officers concluded that Cervantes was driving 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
officers 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
California 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 search was valid under the
automobile exception to the Fourth Amendment’s warrant
requirement.
UNITED STATES V . CERVANTES 7
STANDARD OF REVIEW
We review the district court’s denial of a motion to
suppress 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
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
particular place, ‘based on the totality of circumstances.’”
Dawson v. City of Seattle, 435 F.3d 1054, 1062 (9th Cir.
2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Here, the government contends that the officers had
probable 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) Hankel’s observation that Cervantes “did not take a
8 UNITED STATES V . CERVANTES
direct route to his location.” As explained below, these
assertions fail to establish probable cause.
1. The Suspected Narcotics Stash House
The government asks us to place heavy reliance on
Hankel’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.
“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., Gates, 462 U.S. at 239 (noting that
“wholly conclusory” statements of officers are insufficient to
establish probable cause); United States v. Ventresca,
380 U.S. 102, 108-09 (1965) (noting that “purely conclusory”
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
circumstances” is insufficient to establish probable cause).
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)
UNITED STATES V . CERVANTES 9
weight in determining whether officers had satisfied the lower
reasonable suspicion standard required to stop a vehicle
leaving the house. 211 F.3d 1186, 1189-90 (9th Cir. 2000).
We explained that the conclusory allegation, without any
foundational facts, was akin to an anonymous tip and,
consequently, was entitled to little weight. Id. at 1190.
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
officers, suspected the house was a “narcotics stash location.”
While Hankel’s training and experience are factors to be
considered, “it is incumbent upon the arresting or searching
officer 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
statements 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
observation that Cervantes “did not take a direct route to his
location.” Cervantes’s unremarkable driving practices,
however, fall short of any indicia of criminal activity.
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,
10 UNITED STATES V . CERVANTES
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
question of probable cause was a “close one,” but
nevertheless found that officers had probable cause to arrest
Del Vizo. Id. at 827.
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
suspicious.
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
Cervantes 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 seemingly 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.
UNITED STATES V . CERVANTES 11
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
insufficient to establish probable cause. See Thomas,
211 F.3d at 1192. This is only reinforced by Hankel’s request
that Officers Colley and Sanchez develop a lawful reason to
stop Cervantes. 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
subsequent inventory search of Cervantes’s vehicle were
justified by the community caretaking exception to the Fourth
Amendment’s warrant requirement. Cervantes contends the
government failed to meet its burden of establishing that the
impoundment of his vehicle was justified under this
exception. We agree.
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
efficient movement of vehicular traffic.” Miranda v. City of
Cornelius, 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
12 UNITED STATES V . CERVANTES
long as it conforms to the standard procedures of the local
police department. 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 incriminating evidence.” Florida v. Wells, 495 U.S.
1, 4 (1990).
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,
concluding 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. (quoting Opperman, 428 U.S. at 369).
In other words, “a valid caretaking purpose” is required. Id.Following both Opperman and our decision in Miranda,
we have held that
[W]arrantless inventory searches of vehicles
are lawful only if conducted pursuant to
standard police procedures 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 . CERVANTES 13
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 caretaking function. Id. at 1075. As we stated in
Caseres, if “the government fail[s] to establish a community
caretaking function for the impoundment” then it “fail[s] to
establish the constitutional reasonableness of the seizure and
subsequent inventory search.” Id.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
contrary, 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
defendant’s vehicle was two houses away from his home), the
government 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
exception applied. Id.; Hallstrom v. City of Garden City,
991 F.2d 1473, 1477 n.4 (9th Cir. 1993) (upholding the
towing of a car from a public parking lot, not a residential
street, under the community caretaking exception).1
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
government stopped Cervantes, which Officer Colley testified was “at the
14 UNITED STATES V . CERVANTES
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
impoundment 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 state statute does not, in and of itself,
determine the reasonableness of the seizure under the Fourth
Amendment . . . .”). “[T]he decision to impound a vehicle
top of [the] hill.” Rather, the focus is on the Polk Street / Laurel Canyon
Boulevard 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, and
theft.” Dissent at 5. The government, however, has failed to refer to, cite,
or even mention the attached exhibit in any of its briefs. In fact, the
government concedes that “the record is not developed as to whether
defendant’s vehicle was actually impeding traffic or posing a safety hazard
when officers 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
Cervantes’s vehicle was warranted. Hawkins, 249 F.3d 867, 872 (9th Cir.
2001) (holding that the “burden is on the Government to persuade the
district court that a seizure comes under one of a few specifically
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. Rodgers,
656 F.3d 1023, 1028 n. 5 (9th Cir. 2011).
UNITED STATES V . CERVANTES 15
after the driver has violated a vehicle regulation must
consider the location of the vehicle, and whether the vehicle
was actually ‘impeding traffic 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
Vehicle Code § 14602.6(a)(1), “[w]henever 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 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
Cervantes’s car was his alleged driving without a license, in
violation of California Vehicle Code § 12500(a), according
to both officers, 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.
In sum, on this record, the impoundment of Cervantes’s
vehicle was not justified by the community caretaking
16 UNITED STATES V . CERVANTES
exception to the Fourth Amendment’s warrant requirement.
The district court’s contrary holding was error.
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).
Accordingly, we REVERSE the district court’s denial of
Cervantes’s motion to suppress and REMAND for further
proceedings consistent with this opinion.
MANDATE TO ISSUE FORTHWITH.
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
caretaking 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,
UNITED STATES V . CERVANTES 17
they may impound the vehicle in furtherance of their
community caretaking function. See Miranda, 429 F.3d at863–65.
But today, the majority muddies 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 that the majority’s decision
today is a mere fact-bound footnote to our long line of
precedents establishing the community caretaking doctrine.
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
passenger 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 findings 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 officers to impound the car to protect it from
vandalism or theft.
1
T he 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
officers 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
circumstances, any reasonable officer would have arrested Cervantes to
prevent him from driving off illegally.
18 UNITED STATES V . CERVANTES
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
doctrine 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 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
majority gives two reasons for reaching this conclusion, and
neither 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 13. 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
2
The majority attempts to distinguish Hallstrom on the ground that it
involved impoundment of a vehicle from a parking lot, maj. op. at 14-15,
but provides no explanation as to why a vehicle is an easier target for
vandalism or theft in a private parking lot than it would be on the street.
UNITED STATES V . CERVANTES 19
unattended 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
at 1477 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
situation: 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
location have been vulnerable to damage, vandalism, or theft,
as 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
entitled to impound Cervantes’s car under state law because
3
The majority attempts to distract attention from the photographic
evidence 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. M aj. op. at 13-14 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 majority’s strenuous assertions to the contrary are unsupported by
any case law.
20 UNITED STATES V . CERVANTES
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 Cervantes’s vehicle until they had probable cause
to arrest Cervantes for driving without a valid license. The
court therefore reasonably concluded that the impoundment
was contemporaneous with and incident to the decision to
arrest, in accordance with both the California Vehicle Code
and Los Angeles Police Department policy.
In short, neither of the majority’s reasons for reversing
the district court’s well-supported conclusion holds water.
Because this decision is contrary to both case law and
common sense, I respectfully dissent.
4
See Cal. Vehicle Code § 22651(h)(1) (the police may impound 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 § 14602.6(a)(1) (“W henever 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 . . . .”).