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 -