USCA1 Opinion
December 31, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-1255
UNITED STATES,
Appellee,
v.
WILBERTO RAMOS-MORALES,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Jose R. Aquayo for appellant.
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Carlos A. Perez, Assistant United States Attorney, with whom
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Daniel F. Lopez Romo, United States Attorney, was on brief for
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appellee.
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BREYER, Chief Judge. Federal agents of the Drug
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Enforcement Agency ("DEA") arrested the defendant on drug
charges. At that time, the defendant parked his car on the
side of the road. The agents seized the car, impounded it,
searched it, and found evidence that was later introduced at
trial. The single issue on this appeal is whether the
seizure of the parked car was lawful. The district court
held that the seizure amounted to a "reasonable," hence
lawful, impoundment of the car to prevent theft or
vandalism. We agree.
The basic facts, presented in the light most
favorable to the government (whose witnesses the court
explicitly credited), see, e.g., United States v. Newton,
___ ____ _____________ ______
891 F.2d 944, 946 n.2 (1st Cir. 1989), are as follows:
1. On July 12, 1991, two DEA agents, armed with
an arrest warrant for the defendant, Wilberto
Ramos Morales, spotted a man fitting Ramos'
description, emerging from a white, two-story,
apartment house on Calle Tulipan, in Carolina,
Puerto Rico. A passerby told the agents that the
man was indeed Ramos.
2. The agents saw Ramos enter his car, parked on
the sidewalk next to the house. Calle Tulipan is
a dead end street. Ramos drove the car towards
the far end of the street and turned it around.
The officers blocked the open end of the street
with their car, emerged from their car with
weapons, pointed them at Ramos in his car, and
told Ramos to stop.
3. Ramos, whose car was then "in the middle of
the street," moved his car "towards the edge of
the road," and stopped it "on the edge of the
street." Ramos then got out of the car, the
agents "put him in front of the vehicle with his
hand[s] on top of it," and one of the agents took
the keys from the "top of the car," where Ramos
had left them.
4. After arresting Ramos, the agents, following
"DEA standard procedures," which apparently
instruct agents not to "leave" a "vehicle in an
unknown location," took the car "for protection
and security purposes," -- i.e., "to protect"
Ramos' "property" and "for the safety of the
vehicle itself."
5. The agents testified that they did not know
where Ramos "usually lived or where he usually
stayed." They had a list of five addresses they
were to check in an effort to find him. The Calle
Tulipan address was the last on the list. Ramos'
car had a BCK license plate, registered at what
was apparently a different ("Country Club"
district) Ramos address.
These facts would seem to bring this case well
within the scope of the many precedents finding police
impoundment to protect a car from theft or vandalism
reasonable, and hence lawful. The Supreme Court itself has
held that police may impound a car for this reason, provided
they make their impoundment decision "according to standard
criteria and on the basis of something other than suspicion
of evidence of criminal activity." Colorado v. Bertine, 479
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U.S. 367, 375 (1987). Lower courts have found that the
police may lawfully impound a vehicle that would otherwise
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remain on the side of a public highway or city street, see
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Rodriguez-Morales, 929 F.2d 780 (1st Cir. 1991), cert.
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denied, 112 S.Ct. 868 (1992); United States v. Velarde, 903
______ _____________ _______
F.2d 1163 (7th Cir. 1990); United States v. Duncan, 763 F.2d
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220 (6th Cir. 1985); United States v. Griffin, 729 F.2d 475
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(7th Cir.), cert. denied, 469 U.S. 830 (1984); United States
_____ ______ _____________
v. Taddeo, 724 F. Supp. 81 (W.D.N.Y. 1989), aff'd, 932 F.2d
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956 (1st Cir. 1991); or in a private parking lot, see United
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States v. Kornegay, 885 F.2d 713 (10th Cir. 1989), cert.
______ ________ _____
denied, 495 U.S. 935 (1990); United States v. Johnson, 734
______ _____________ _______
F.2d 503 (10th Cir. 1984); United States v. Staller, 616
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F.2d 1284 (5th Cir.), cert. denied, 449 U.S. 869 (1980).
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The appellant tries to distinguish these cases by
arguing that he parked his car off the street in a private
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parking place just outside his home. The main problem with
this argument is factual. We must read the record favorably
to the government, and the government's witnesses (whom the
court generally credited) testified that the car was left
"on the edge" of the road outside a building that they "did
not know" (and reasonably need not have believed) was Ramos'
home.
The dissent tries to distinguish these cases by
pointing out that the street in question is not a busy
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public street where a long-parked car might seem out of
place, inviting theft or harm; that it is not a private
parking lot, belonging to another person; and that the
agents had no reason to think the street was located in an
especially crime-ridden area. But these distinctions do not
seem convincing. For one thing, the significant risk that
an abandoned car will be stolen or damaged does not seem
confined to busy streets, "high crime" neighborhoods, or
commercial parking lots. For another, the agents here, in
impounding the car, followed standard DEA procedures. The
existence and uniform application of such standard
procedures can help prevent what the dissent sees as a major
threat to privacy interests, namely that arresting officers
will use "theft-prevention impoundment" (and the inventory
search that usually follows) as a pretext for initiating
searches for evidence of criminal activity. See Bertine, 479
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U.S. at 375-76.
Finally, and perhaps most importantly, the Supreme
Court in Bertine seemed specifically to hold that the
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Constitution permits arresting officers to impound, pursuant
to standard procedures, an arrested person's automobile that
might otherwise be left abandoned. Id. This result, the
__
Court said, reflects the government's legitimate interest in
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reducing automobile theft and damage, the individual's
diminished expectation of privacy in an automobile, and the
tendency of clear, standard rules to control police abuses.
Cf. South Dakota v. Opperman, 428 U.S. 364, 373 (1976)
__ _____________ ________
(according deference to police caretaking procedures
designed to secure and protect vehicles and their contents
within police custody). We do not see any significant
distinction between the case at bar and that controlling
authority, particularly as supplemented by the cases cited
on pages 3 -4, supra. Indeed, Bertine, as far as the
_____ _______
Supreme Court's opinion there reveals, is identical to this
case, but for the fact that the Bertine car was likely at
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the side of the road (the police having stopped, and
presumably pulled over, the drunk driver) near a busy
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intersection, while the car in this case was at the side of
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the road in a residential neighborhood. (The dissent's
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claim that the police in Bertine "could not have left the
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car where it was located at the time of Bertine's arrest"
lacks any basis in the Supreme Court's description; indeed
the police here seem to have had the authority to have left
the car parked and locked.) And, as we have said, the
distinction between busy, and nonbusy, streets, in terms of
that Supreme Court case, and a host of later cases, seems a
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distinction without a difference. To hold that busy
arresting officers must leave a suspect's car behind if they
lack information about the surrounding neighborhood's crime
rate runs contrary to the rationale that underlies the case
law authority, for it invites the very kinds of risks that
the cases hold justify impoundment procedures such as the
one here at issue.
Given the extensive authority, this case seems to
us basically to involve application of, not any extension
of, existing law. And, we have not considered the case as
if we were writing Fourth Amendment law on a blank slate.
For these reasons, the judgment of the district
court is
Affirmed.
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BOWNES, Senior Circuit Judge, dissenting. Once
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again the Fourth Amendment has become a casualty of the "War
on Drugs." The majority opinion treats the warrantless
seizure of an automobile by the Drug Enforcement
Administration as a routine matter and approves the seizure
simply because the agents said that they followed DEA
"standard procedures." I do not think that the requirements
of the Fourth Amendment should be so cavalierly shunted
aside.
I start with the standard of review. A district
court's findings in a suppression hearing are binding on
appeal unless they are clearly erroneous. United States v.
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Lanni, 951 F.2d 440, 441 (1st Cir. 1991). This means that we
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review the record of the suppression hearing in the light
most favorable to the government. But our review does not
end there. The district court's "ultimate conclusion" must
be subjected to "plenary review." United States v. Sanchez,
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943 F.2d 110, 112 (1st Cir. 1991). See also, United States
___ ____ _____________
v. Ibarra, 955 F.2d 1405, 1409 (10th Cir. 1992) ("[a]lthough
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the district court's factual findings are subject to a
`clearly erroneous' standard of review, the ultimate
determination of the reasonableness of . . . [an officer's]
seizure and search is a question of law to be reviewed by
this court de novo.").
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The court of appeals must also bear in mind that
when a criminal defendant moves to suppress evidence seized
without a warrant in violation of the Fourth Amendment, the
government bears the burden of proving that the warrantless
seizure falls within one of the narrow exceptions to the
warrant requirement of the Fourth Amendment. As the Court
has stated:
Over and again this Court has emphasized
that the mandate of the Amendment
requires adherence to judicial processes.
See Weeks v. United States, 232 U.S. 383
___ _____ ______________
(1914); Agnello v. United States, 269
_______ _____________
U.S. 20 (1925). Only where incident to a
valid arrest, United States v.
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Rabinowitz, 339 U.S. 56 (1950), or in
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"exceptional circumstances," Johnson v.
_______
United States, 333 U.S. 10 (1948), may an
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exemption lie, and then the burden is on
those seeking the exemption to show the
need for it, McDonald v. United States,
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335 U.S. 451, 456 (1948).
United States v. Jeffers, 342 U.S. 48, 51 (1951). See also,
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United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992)
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(burden is on government to show reasonableness of
warrantless search including demonstrating that search comes
within one of the narrow exceptions to warrant requirement);
Ibarra, 955 F.2d at 1409-10 (government bears burden of
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showing warrantless seizure of auto satisfies exception to
Fourth Amendment); United States v. Rutkowski, 877 F.2d 139,
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141 (1st Cir. 1989) (government has burden of establishing
entitlement to "plain view" exception to Fourth Amendment's
warrant requirement); Wayne R. LaFave, 4 Search and Seizure,
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9
11.2(b) at 218 n. 23 (2d ed. 1987 & Supp. 1991) (government
always has burden of proving applicability of exception to
warrant requirement).
I now turn to the law on impoundment of motor
vehicles which the majority either ignores or misstates. The
United States Constitution guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. . . ."
U.S. Const. amend. IV. Generally, a search of private
property is unconstitutional unless it is conducted pursuant
to a properly issued search warrant. Katz v. United States,
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389 U.S. 347, 357 (1967). In a limited number of situations,
however, warrantless searches have been upheld as
"reasonable." One such exception to the warrant requirement
arises when the police, in the exercise of their "community
caretaking functions," Cady v. Dombrowski, 413 U.S. 433, 441
____ __________
(1973), acquire temporary custody of a privately-owned
automobile. In such circumstances the Supreme Court has held
that a warrantless inventory search of the automobile made
"pursuant to standard police procedures" and for the purpose
of "securing or protecting the car and its contents" is a
reasonable police intrusion which does not offend Fourth
Amendment principles. South Dakota v. Opperman, 428 U.S.
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364, 372 & 373 (1976). In Opperman, the police impounded a
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vehicle which had been parked in a no-parking zone. The
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Court stated that the "authority of the police to seize and
remove from the streets vehicles impeding traffic or
threatening public safety and convenience is beyond
challenge." Id. at 369.
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The Opperman Court identified three distinct
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interests which justify the inventory search of an
automobile: (1) protection of the owner's property while in
police custody; (2) protection of the police against claims
regarding lost or stolen property; and (3) protection of the
police from potential danger. Id. Before the need to
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protect these interests can arise, however, "the government
must have legitimate custody of the property to be
inventoried." United States v. Jenkins, 876 F.2d 1085, 1089
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(2d Cir. 1989) (citations omitted). See Illinois v.
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Lafayette, 462 U.S. 640, 648 (1983); United States v. Pappas,
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613 F.2d 324, 330 (1st Cir. 1979).
The DEA agents testified at the suppression hearing
that they impounded the vehicle to protect it from the risk
of theft or vandalism, "and as part of the rules of the
agency." The agents' perceived risk of theft or vandalism,
however, was not supported by any facts regarding the
character of the neighborhood, nor were the "rules of the
agency" explained or put in evidence. The only evidence
before the court was that the car was legally parked at the
edge of a public street in a residential neighborhood. The
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district court accepted the agents' "safety" justification
without question and did not rely on the existence of DEA
standard procedures to justify the seizure. The issue,
therefore, is whether the agents were, under the facts of
this case, justified in impounding Ramos' car to protect it
and its contents. "Framed precisely, the critical question
in cases such as this is not whether the police needed to
impound the vehicle in some absolute sense, or could have
effected an impoundment more solicitously, but whether the
decision to impound and the method chosen for implementing
that decision were, under all the circumstances, within the
realm of reason." United States v. Rodriguez-Morales, 929
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F.2d 780, 786 (1st Cir. 1991), cert. denied, 112 S. Ct. 868
_____ ______
(1992).
The majority relies heavily on the Supreme Court's
decision in Colorado v. Bertine, 479 U.S. 367 (1987). I read
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the Bertine facts differently than my brothers. In Bertine
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the Court upheld municipal regulations of Boulder, Colorado,
that gave its police officers the discretion to choose
between impounding a car and parking and locking it in a
public parking place, "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." Id. at 375. Bertine does not control the facts
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of this case, as the majority mistakenly asserts. In
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Bertine, the officers could not have left the car where it
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was located at the time of Bertine's arrest for drunk
driving; they had to choose between parking the vehicle in a
public lot or impounding it. The Court determined that the
grant to the officers of such discretion and their exercise
of that discretion were both reasonable.
In this case, the officers had no reason to move
Ramos' car. It was legally parked in a residential
neighborhood. There was no evidence that the car was
interfering with traffic, either automotive or pedestrian, in
any way. The DEA agents stressed that the car was impounded
to protect it from vandalism, but there was no evidence that
cars parked in the neighborhood had been vandalized regularly
or intermittently. The question here is not, as it was in
Bertine, whether the police appropriately exercised their
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discretion to impound the car because they had to move it.
Instead, the question is whether it was reasonable for the
agents to impound the vehicle given the fact that it was
lawfully parked in a residential area at the time of arrest.
Courts have upheld the reasonableness of decisions
by law enforcement officials to impound vehicles in cases
where leaving the vehicle where it was would either pose a
threat to public safety or present an inviting target for
thieves or vandals. See, e.g., Rodriguez-Morales, 929 F.2d
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at 785 (shoulder of a busy interstate highway when no
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occupant properly licensed to drive); United States v.
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Velarde, 903 F.2d 1163, 1166-67 (7th Cir. 1990) (same);
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United States v. Kornegay, 885 F.2d 713, 716 (10th Cir. 1989)
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(parked in private lot and police did not know identity of
operator), cert. denied, 495 U.S. 935 (1990); United States
____ ______ _____________
v. Brown, 787 F.2d 929, 932 (4th Cir.) (occupants appeared
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drunk, no known sober person was available to take custody,
and car, if left unattended, could present a nuisance), cert.
____
denied, 479 U.S. 837 (1986); United States v. Duncan, 763
______ _____________ ______
F.2d 220, 224 (6th Cir. 1985) (arrest on public highway);
United States v. Johnson, 734 F.2d 503, 505 (10th Cir. 1984)
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(parked in private lot, exposed to vandalism, and owner was
inebriated); United States v. Griffin, 729 F.2d 475, 480 (7th
_____________ _______
Cir.) (neither occupant could legally remove car from
emergency lane of highway and leaving it there would present
hazard and theft risk), cert. denied, 469 U.S. 830 (1984);
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United States v. Staller, 616 F.2d 1284, 1289-90 (5th Cir.)
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(legally parked in shopping mall parking lot, but arrested
driver was from out of state and nobody else was available to
assume responsibility), cert. denied, 449 U.S. 869 (1980);
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United States v. Taddeo, 724 F. Supp. 81, 82-3 (W.D.N.Y.
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1989) (stopped in a bus lane on a busy six-lane highway near
the center of downtown Rochester just prior to rush hour),
aff'd, 932 F.2d 956 (2d Cir. 1991); United States v. 1988
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B.M.W. 750IL, 716 F. Supp. 171, 173-74 (E.D. Pa.) (no
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licensed driver available to remove vehicle parked near
street corner and exposed to risk of theft or vandalism),
aff'd without opinion, 891 F.2d 284 (3d Cir. 1989).
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The majority cites many of these same cases in
support of its conclusion that the impoundment of Ramos' car
was legal. In so doing, the majority has failed to consider
the factual differences between the cited cases and this
case. Despite the clear factual differences from the line of
cases supporting the reasonableness of decisions to impound
vehicles for the protection of either the owner or the
public, the district court accepted the agents' unsupported
conclusions about the risks associated with leaving Ramos'
car where it was: legally parked "at the edge of the
street." Now the court of appeals compounds this error.
The district court did find that two factors
supported the reasonableness of the agents' determination
that there would have been a serious threat of theft or
vandalism had they left the vehicle where it was parked:
first, that the officers were unsure about the actual
residence of Ramos; and, second, that several people
witnessed the arrest. In the words of the district court:
at the time of the arrest, the agents
were uncertain of the defendant's actual
residence. Under these circumstances,
the agents could have reasonably
concluded that the defendant's vehicle
could be subject to theft or vandalism if
it remained parked where it was,
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especially in light of the fact that
several persons witnessed the arrest.
Despite the reasonableness of the agents'
uncertainty about Ramos' actual residence, that uncertainty
had no significance for the perceived risk of theft or
vandalism of his automobile. Those risks existed
independently of Ramos' actual residence. Such risks are
dependent upon the character of the neighborhood and the
propensity for car theft and vandalism in the area. After
all, the odds of the car being stolen or vandalized are less
for a stranger who parks his car in an area with a low rate
of car theft, than those for a resident of a high-risk area
who parks his car outside his home. There was no evidence
offered by the government at either the suppression hearing
or the trial to support the characterization of the
neighborhood in which Ramos and his car were found as one
with either a high or low risk for car theft or vandalism.
The location of the actual residence of Ramos is irrelevant
to this determination. The alleged DEA "policy" against
leaving vehicles of arrestees in "unknown locations" is
overbroad, if not completely irrational.
The second, and connected, reason supplied by the
court in support of its ruling, that there were witnesses to
the arrest, is simply not supported in the record of the
suppression hearing. At the suppression hearing, the
question of whether others were present near the scene of
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arrest arose on four occasions. First, Agent Ramirez
testified in response to questions posed by the prosecutrix
about what happened when he asked a bystander whether the
person he saw get into the Honda Accord was, in fact, Ramos:
A I asked the person who was near on the house
next to where his car was parked if he was
Willy, and that person responded in the
affirmative . . . .
. . . .
Q What happened to that individual that you had
inquired from, if he was Willy?
A At that moment I don't know what happened to
him.
Q Was he there when you arrested defendant Ramos
Morales?
A No madam, he was not.
Second, Agent Ramon testified about what the agents did when
they first spotted the Honda Accord registered in the name of
Ramos:
A [S]ince [we] did not see anybody on the
streets we decided to wait, and so we
established surveillance on that street
which is a dead end street.
Third, on cross-examination, Ramon testified that he did not
remember seeing Vadiz next to Ramos' car just prior to the
moment when Ramos entered his vehicle:
Q [D]id you see another man next to that car,
immediately next to Mr. Ramos's car?
A Not that I recall, Sir.
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Fourth, Vadiz, as a witness for the defendant, testified that
he was present at the scene of the arrest and that DEA agents
prevented Ramos from giving him custody of the car. The
district court, in its suppression order explicitly rejected
this testimony, stating: "[t]he agents further testified
that the 19-year-old neighbor was not present at the time of
defendant's arrest. After hearing the testimony of the
agents and that of the neighbor, the Court finds the
testimony of the agents more credible than that of Guido
[sic] Vadiz."
Therefore, there was no evidence in the record of
the suppression hearing supporting the district court's
finding that "several persons witnessed the arrest."1 Even
if there had been such evidence at the suppression hearing,
or at the trial itself, such evidence, without more, would
not support a finding of probable cause to seize a vehicle
without a warrant. It is difficult to imagine any arrest in
a major urban area which is not witnessed by at least one
bystander. Were that sufficient reason to justify the
seizure of a car at the time of arrest, the limited exception
to the warrant requirement based on exigent circumstances,
such as the protection of public safety or the prevention of
____________________
1 According to the government's own brief, "prior to the
arrest, there were neighbors in the immediate area. During
and after the arrest no one was within sight." Brief for
Appellee at 9 n.5.
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theft or vandalism, would soon swallow the rule. As the
Tenth Circuit has noted, "Opperman cannot be used to justify
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the automatic inventory of every car upon the arrest of its
owner. The justifications for the rule are too carefully
crafted for this to be the intent." United States v. Pappas,
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735 F.2d 1232, 1234 (10th Cir. 1984).
In United States v. Pappas, 613 F.2d 324 (1st Cir.
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1979), this court held that even when the government impounds
a vehicle because its agents have reason to believe that it
is subject to forfeiture under 21 U.S.C. 881(b)(4), it must
fulfill the warrant requirement in the absence of exigent
circumstances. Id. at 330. The Second Circuit recently
___
agreed, holding that warrantless seizures under 881(b)(4)
"must meet one of the recognized exceptions to the fourth
amendment's warrant requirement." United States v. Lasanta,
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Nos. 91-1724, 91-1725, 92-1008, 1992 Allfeds WL 297090, at *3
(2d Cir. Oct. 21, 1992).
If the warrant requirement must be met in cases
where the government has a legitimate, statutory
justification for impounding a vehicle, surely the existence
of a vague "agency policy" is no substitute for a warrant in
the circumstances presented by this case. Bertine does not
_______ ___
stand for the proposition that so long as a DEA agent claims
to be following standard procedures, he can seize an
automobile without a warrant. In Bertine, the Court merely
_______
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held that when the police must remove a car from the scene of
an arrest, they may, in accord with standard procedures,
either park and lock the car in a public place or impound the
vehicle and conduct an inventory search. The predicate to
the Bertine rule was not met in this case. There was no
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evidence showing that the
agents had any legitimate reason to move Ramos' vehicle. The
majority has extrapolated from Bertine how the Court would
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decide this case. This may be a reasonable prediction, but I
think we are restricted to the facts and holdings of Bertine
_______
as it was issued.
In summary, a careful review of the record reveals
that there was no evidence before the district court that
Ramos' car was located in an area that exposed it to the risk
of vandalism or theft, and the district court did not take
judicial notice that the car was parked in such a
neighborhood. There was no evidence to support the court's
finding that there were witnesses to the arrest. The lack of
certainty about the actual residence of Ramos was irrelevant
as to whether sufficient exigent circumstances existed to
justify the warrantless seizure of his automobile. Given the
lack of supporting evidence in the record, I cannot join the
majority.
The majority completely ignores the issue of burden
of proof. The government bears the burden of proof whenever
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it seeks to justify warrantless seizures. Today, despite a
lack of any supporting evidence, this court affirms the
agents' naked conclusion that leaving Ramos' car where it was
parked when Ramos was arrested presented a risk of theft or
vandalism. This means that in the future, any time a DEA
agent seizes a suspect's automobile without a warrant, all
she need say is that she did so "to protect the car from the
dangers of theft and vandalism." DEA agents will now surely
wait until a suspect gets into his automobile before
effecting an arrest because, once the suspect is arrested,
the agents can impound the car and conduct an inventory
search
withoutprobablecauseand
intheabsence
ofexigentcircumstances.
Today's decision is not compelled by current
constitutional doctrine. As a court of appeals, we must
recognize that our first duty is to uphold the Constitution
as it has been interpreted by the Supreme Court. We ought
not diminish and circumscribe the protections of the Bill of
Rights in the absence of a clear command by the Supreme
Court. The majority gives judicial sanction to the
impermissible seizure of a citizen's automobile that violates
the requirements of the Fourth Amendment. This ruling is,
lamentably, another step in the judicial erosion of the
freedoms guaranteed by the Bill of Rights.
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