United States v. Venezia

995 F.3d 1170

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 3, 2021
• Docket: 19-1432
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 3, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-1432

HUNTER TREY VENEZIA,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CR-00220-RM-1) _________________________________

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Elizabeth S. Ford Milani, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with her on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee. _________________________________

Before McHUGH, BALDOCK, and BRISCOE, Circuit Judges. _________________________________

BRISCOE, Circuit Judge. _________________________________

This is a direct appeal by Hunter Venezia following his conditional plea to one

count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). Specifically, Venezia challenges the district court’s

denial of his motion to suppress evidence found after a traffic stop led to the

impoundment and search of the vehicle he was driving. Venezia moved to suppress the

evidence recovered from the search, arguing the officers’ impoundment of his vehicle

violated the Fourth Amendment.

The sole issue on appeal is whether the district court was correct in concluding the

impoundment was constitutional. Exercising jurisdiction under 28 U.S.C. § 1291, we

reverse the district court’s denial of Venezia’s motion to suppress and remand with

directions to vacate Venezia’s conviction and sentence.

I. BACKGROUND

A. Factual History

On January 2, 2019, at about 9:00 p.m., Officers David Tubbs and Jason Jewkes,

two members of the Lakewood Police Department (“LPD”), were conducting a routine

patrol in Lakewood, Colorado. They observed an Audi pull into the parking lot of a motel

and then drive to a gas station across the street. Along the way, the driver—who was later

determined to be Venezia—committed a traffic violation by failing to signal a turn. The

vehicle soon returned to the motel parking lot, and as it did so, the officers observed that

the front and rear license plates were not properly affixed to the vehicle’s front and rear

bumpers; instead, the plates were improperly displayed in the passenger compartment.

The officers ran the license plate number through their identification systems, which

revealed the vehicle’s registered owner was a person named Luis Cuello.

2 Venezia then parked the vehicle in the motel’s private lot. The vehicle was

“legally parked,” was “not obstructing traffic,” and did not pose “an imminent threat to

public safety.” ROA Vol. 5 at 140. The motel and its parking lot were in a high crime

area of Lakewood.

The officers approached the vehicle based on the illegal turn they had observed.

The officers asked Venezia, the driver and sole occupant of the vehicle, for his license,

registration, and insurance. He did not have a driver’s license, registration for the vehicle,

car insurance, title to the vehicle, or a bill of sale. Venezia told the officers his license

was suspended; the officers confirmed that, in fact, his license had been revoked. Venezia

presented the officers with his Colorado identification card, and the officers determined

he had an outstanding misdemeanor warrant for “a failure to appear on a traffic ticket.”

Id. at 75.

When asked about Cuello—i.e., the vehicle’s registered owner—Venezia stated he

did not recognize the name. He told the officers he had recently purchased the vehicle

from a person named Dustin Estep but had been unable to insure or register it due to the

holidays. The officers contacted their communication center in an attempt to reach Cuello

by telephone, but the attempt was unsuccessful.

At the suppression hearing, the district court found as a matter of fact that Venezia

was the vehicle’s owner, and that he had recently purchased the vehicle from Estep, who

had recently purchased it from Cuello. But the court further found the officers had no

information available to them, at the time of their encounter with Venezia, that would

have alerted them to this chain of title.

3 The officers arrested Venezia on the outstanding warrant and impounded the

vehicle. Venezia objected to the impoundment. Although he was not a guest at the motel,

Venezia indicated that an individual he referred to as his brother was staying there. The

officers did not inquire whether Venezia’s “brother” (who turned out to be a friend,

Christian Kelly) could take possession of the vehicle. The officers also did not ask

anyone working at the motel for permission to leave the vehicle in the motel parking lot.

During an inventory search of the vehicle, conducted as part of the impoundment,

law enforcement found drugs, drug distribution paraphernalia, a gun holster, and

ammunition. Venezia was released on bond, after which he was able to establish his

ownership of the vehicle.

B. Procedural History

A grand jury charged Venezia with one count of possession with intent to

distribute methamphetamine, among other counts not relevant here. Venezia moved to

suppress the evidence recovered during the search, including the drugs. The government

opposed his motion.

The district court then held a suppression hearing at which Cuello, Estep, Venezia,

Officer Tubbs, and Kelly testified. The court denied Venezia’s motion in an oral ruling.

The court concluded the impoundment was conducted pursuant to the LPD’s

standardized, written policies and was justified by a community-caretaking rationale. The

court accordingly held the impoundment was constitutional.

Venezia entered a conditional guilty plea to one count of possession with intent to

distribute methamphetamine, reserving the right to appeal the district court’s denial of his

4 suppression motion. The district court entered judgment on November 5, 2019. Venezia

filed a notice of appeal the following day.

II. DISCUSSION

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S.

Const. amend. IV. To be reasonable, a search “generally requires the obtaining of a

judicial warrant.” Riley v. California, 573 U.S. 373, 382 (2014) (quoting Vernonia Sch.

Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). “In the absence of a warrant, a search is

reasonable only if it falls within a specific exception to the warrant requirement.” Id.

“The Government bears the burden of proving that the seizure and search were

reasonable.” United States v. White, 584 F.3d 935, 944 (10th Cir. 2009); see also United

States v. Sanders, 796 F.3d 1241, 1244 (10th Cir. 2015) (“The government bears the

burden of proving that its impoundment of a vehicle satisfies the Fourth Amendment.”).

When reviewing a district court’s denial of a motion to suppress, we review

findings of fact for clear error, and we view the evidence in the light most favorable to

the government. United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017). We

review the determination of whether the search and seizure were reasonable under the

Fourth Amendment de novo. Id.

One exception to the warrant requirement is a search or seizure conducted

pursuant to police officers’ “community-caretaking functions.” In the context of vehicle

impoundments, the community-caretaking doctrine arose from the everyday reality that

police frequently encounter disabled vehicles or investigate vehicular accidents in which

there is no cause to believe that a criminal offense has occurred. Cady v. Dombrowski,

5 413 U.S. 433, 441 (1973). Thus, in Cady, the Supreme Court recognized that police may

impound a vehicle where the vehicle was disabled as a result of an accident, the driver

could not arrange for the vehicle’s removal, and the vehicle’s presence “constituted a

nuisance along the highway.” Id. at 443.

In South Dakota v. Opperman, 428 U.S. 364, 369 (1976), the Supreme Court

elaborated by providing several illustrations in which the community-caretaking doctrine

justifies impoundment. For example, following a vehicle accident, officers may impound

a vehicle “[t]o permit the uninterrupted flow of traffic and in some circumstances to

preserve evidence.” Id. at 368. Violation of a parking ordinance may also justify

impoundment under the community-caretaking doctrine, provided the parking violation

“thereby jeopardize[s] both the public safety and the efficient movement of vehicular

traffic.” Id. at 369. Accordingly, the Supreme Court reasoned that “[t]he authority of

police to seize and remove from the streets vehicles impeding traffic or threatening public

safety and convenience is beyond challenge.” Id.

In Colorado v. Bertine, 479 U.S. 367 (1987), the Supreme Court addressed

inventory searches conducted pursuant to a community-caretaking impoundment. The

Court explained that Opperman does not “prohibit[] the exercise of police discretion so

long as that discretion is exercised according to standard criteria and on the basis of

something other than suspicion of evidence of criminal activity.” Id. at 375.

Guided by the Supreme Court’s decisions in these cases, we clarified the precise

standard for determining the constitutionality of a police-ordered impoundment on

private property in Sanders: “when a vehicle is not impeding traffic or impairing public

6 safety, impoundments are constitutional only if guided by both [1] standardized criteria

and [2] a legitimate community-caretaking rationale.” 796 F.3d at 1243. 1

Here, Venezia argues the officers failed to comply with either requirement,

rendering the impoundment unconstitutional for two independently sufficient reasons.

The government disagrees. Reviewing de novo, we conclude that the impoundment was

guided by standardized criteria, thus satisfying the first prong of Sanders. We also

conclude, however, that the impoundment was not guided by a legitimate

community-caretaking rationale, thus failing the second prong of Sanders.

A. Standardized Criteria

Under the first prong of the Sanders test, the impoundment of a vehicle, located on

private property, that is not obstructing traffic or creating an imminent threat to public

safety, is constitutional only if it is “guided by standardized criteria.” Sanders, 796 F.3d

at 1243. The standardized criteria prong “ensures that police discretion to impound

vehicles is cabined rather than uncontrolled,” and the existence of such standardized

criteria is “the touchstone of the inquiry into whether an impoundment is lawful.” Id. at

1248–49; see also Bertine, 479 U.S. at 375.

1 We have recently held that our two-prong inquiry under Sanders does not apply to impoundments where there is a “threat to public safety or traffic.” United States v. Trujillo, --- F.3d ---, No. 19-2212, 2021 WL 1257759, at *9 (10th Cir. Apr 6, 2021). Because the government asserts that the impoundment here was justified exclusively by the risk of theft or vandalism, as opposed to a safety- or traffic-related interest, we apply Sanders.

7 Here, the LPD officers’ discretion was cabined by their standardized

impoundment policies set forth in their department manual. The specific policy Officers

Jewkes and Tubbs relied on states when “[1] the driver of [a] vehicle does not have a

valid driver’s license[,] . . . [2] the car is registered to another person[,] and [3] the [LPD]

agent is unable to verify that the driver has permission to drive the vehicle, the agent is

encouraged to impound the vehicle.” LPD Policy § 4741(B)(1)(d). Venezia does not

argue the LPD’s policies provided insufficiently standardized criteria; nor does he argue

that, when LPD Policy § 4741(B)(1)(d) is viewed in isolation, Officers Jewkes and Tubbs

failed to abide by it. Because the officers’ decision fell within the bounds defined by the

LPD’s pre-existing, standardized criteria, the first Sanders prong is satisfied.

Venezia’s arguments to the contrary are unpersuasive. First, he argues that

Lakewood’s Municipal Code (the “Code”) prescribes the limits of the LPD’s

impoundment authority. As such, he argues the LPD’s impoundment policies must be

interpreted as narrowed by the Code, and any interpretation of the LPD’s policies that

exceeds the authority the Code confers is invalid. Properly construed in light of the Code,

Venezia asserts, “the provisions of [LPD’s] policy . . . do not allow for impoundments

from private property.” Aplt. Br. at 5. 2

2 Venezia points primarily to section 10.66.190 of the Code:

10.66.190 Authority to impound vehicles.

A. Whenever a police agent finds any vehicle parked upon any public street or public right of way in violation of the parking restrictions . . . contained on any official sign . . . or when any vehicle obstructs or interferes with the free flow of traffic, street maintenance, or access of emergency vehicles or 8 Even if Venezia’s interpretation of the Code were correct—an issue of local law

we do not reach—his argument is irrelevant under Sanders. As indicated above, the

concern articulated in Sanders—that is, the reason for the standardized criteria

requirement—is to ensure that “police discretion to impound vehicles is cabined rather

than uncontrolled.” 796 F.3d at 1249. And here, the LPD officers’ discretion was

so-cabined by their written policies. Further, to the extent Venezia argues the

standardized criteria prong requires officers to follow procedures that carry the force of

law—as distinct from being lawful—our precedents do not support this contention.

United States v. Ibarra, 955 F.2d 1405 (10th Cir. 1992), is inapposite. There, the

government argued an impoundment was constitutional because it was authorized under a

Wyoming statute permitting officers to impound a vehicle where the person in charge of

the vehicle was unable to provide for its removal or custody. Id. at 1408. We rejected the

government’s argument because the district court had found the defendant “was in fact

able to provide for the removal and custody of his vehicle,” and this factual finding was

not clearly erroneous. Id. at 1409. Thus, the Wyoming statute on which the government

equipment, or when any . . . vehicle which causes or tends to obstruct the free movement of pedestrians or other traffic upon a sidewalk, a police agent may order the vehicle towed to an impound lot . . . .

B. Nothing in this section shall prohibit the towing of a vehicle to the impound lot pursuant to another section of this title.

Venezia argues that because the Code expressly delineates particular circumstances under which the LPD has authority to impound vehicles, it would be an improper interpretation of the Code to infer it implicitly authorizes the LPD to impound vehicles under circumstances not provided for in the Code.

9 relied did not authorize the impoundment. Here, however, the government does not rely

on the Code. Rather, the government argues the impoundment was authorized under the

LPD Policy; thus, we only address whether the officers acted within that policy, which

they did.

Sanders’s first prong is agnostic about whether officers’ impoundment policies

comply with local law concerning impoundments, or whether the policies have

themselves been formally adopted as law. Rather, the first Sanders prong is concerned

simply with whether standardized criteria cabin the discretion of law enforcement

officers conducting impoundments, and about whether the law enforcement officers

followed them—i.e., whether their discretion was actually cabined. Here, such criteria

existed in the LPD manual, and Officers Jewkes and Tubbs followed them. The first

Sanders prong is therefore satisfied. 3

3 Neither our prior precedents, nor our decision today, condone bad faith or arbitrary impoundment policies designed to evade stricter local law. In Sanders we explained the second prong of the test guards against such bad faith or arbitrary impoundment policies: our rule that “all community-caretaking impoundments [must] be supported by a reasonable, non-pretextual justification . . . ensures that even if the police were to adopt a standardized policy of impounding all vehicles whose owners receive traffic citations, such impoundments could be invalidated as unreasonable under our precedent.” 796 F.3d at 1249–50; see also United States v. Pappas, 735 F.2d 1232, 1233, 1234 (10th Cir. 1984) (affirming district court’s grant of motion to suppress after a vehicle was impounded from a private lot pursuant to a policy that “requires the impounding of any vehicle whenever an arrest takes place, regardless of the circumstances”). The standardized criteria prong, however, serves a distinct purpose— limiting the discretion of the officer on the scene.

10 B. Community-Caretaking Rationale

The second prong of the Sanders test requires impoundments by law enforcement

to be justified by a “reasonable, non-pretextual community-caretaking rationale.” 796

F.3d at 1248. This second prong is primarily derived from Opperman, which established

that warrantless impoundments may be constitutional when “required by the

community-caretaking functions of protecting public safety and promoting the efficient

movement of traffic.” Sanders, 796 F.3d at 1245; see also Opperman, 428 U.S. at 369

(“The authority of police to seize and remove from the streets vehicles impeding traffic or

threatening public safety and convenience is beyond challenge.”).

This court identified in Sanders five non-exclusive factors that courts use to

determine whether an impoundment is justified by such a reasonable, non-pretextual

community-caretaking rationale:

(1) whether the vehicle is on public or private property; (2) if on private property, whether the property owner has been consulted; (3) whether an alternative to impoundment exists (especially another person capable of driving the vehicle); (4) whether the vehicle is implicated in a crime; and (5) whether the vehicle’s owner and/or driver have consented to the impoundment.

Id. at 1250. We review each factor in turn before weighing them de novo.

Factor One: Public or Private Property

The first Sanders factor weighs against impoundment because the vehicle was

located on a private motel parking lot. Public safety and convenience are less likely to be

at risk when the vehicle is located on private property as opposed to public property.

11 Thus, as we explained in Sanders, the Fourth Amendment imposes “heightened

requirements on police who seize vehicles from private property.” Id. at 1249.

Accordingly, the district court erred in concluding that a vehicle’s location on

private property is not a “strong factor.” ROA Vol. 5 at 147. The district court apparently

reasoned, as the government does on appeal, that Sanders applies only to private property

impoundments, and thus the first factor will always be satisfied. Id. (“I don’t think that in

and of itself [the first factor] is a strong factor, because if it were, Sanders would be a

pretty easy case to follow.”); Aple. Br. at 31 (“The district court properly observed this

factor is not a strong one given that Sanders provides the test for constitutional private

property impoundments.”) (internal citations and quotations omitted).

The district court and the government misunderstand the nature of our holding in

Sanders. The first prong of Sanders is indeed specific to private property impoundments.

In Sanders, we held that “impoundment of a vehicle located on private property . . . is

constitutional only if justified by both a standardized policy and a reasonable,

non-pretextual community-caretaking rationale.” 796 F.3d at 1248 (emphasis added). The

factors describing community-caretaking functions under the second prong of Sanders,

however, apply to “all community-caretaking impoundments.” Id. at 1249 (emphasis

added).

A legitimate rationale is always required, whether on private or public property,

because “[p]rotection against unreasonable impoundments, even those conducted

pursuant to a standardized policy, is part and parcel of the Fourth Amendment’s

guarantee against unreasonable searches and seizures.” Id. at 1250. Thus, Sanders applies

12 to both private and public property impoundments to the extent it describes when

impoundment is consistent with a reasonable and legitimate, non-pretextual

community-caretaking rationale. And, as we and other circuits have recognized, such a

rationale is less likely to exist where the vehicle is located on private property. See id. at

1249 (collecting cases). Accordingly, here, not only does the first factor weigh against

impoundment, the first factor is entitled to more than “little weight.”

In sum, the first factor weighs against finding the impoundment of Venezia’s

vehicle was justified by a legitimate community-caretaking rationale.

Factor Two: Consulting the Private Property Owner

The second Sanders factor also weighs against impoundment because the motel

owner was never consulted. 4 As mentioned above, public safety and convenience are less

likely to be at risk when a vehicle is located on private property. That risk is particularly

diminished when the private property owner does not object to the vehicle’s presence.

For these reasons, we consider the property owner’s consent, even if the property owner

does not own the vehicle. See, e.g., Sanders, 796 F.3d at 1251 (impoundment not justified

where “police [could have] consulted the owners of the parking lot about the vehicle

remaining where it was”); Pappas, 735 F.2d at 1234 (impoundment not justified where

bar owner could have kept vehicle on his property until driver returned).

Although we refer to motel “owner,” someone with authority to speak for the 4

owner—such as the motel manager or other agent—would suffice.

13 The district court erred in addressing the second factor in terms of ownership of

the vehicle, rather than the motel owner’s interest in the parking lot itself. The district

court apparently assigned the second factor little weight because the motel owner could

not help the officers determine who, as the district court described it, could “speak for the

vehicle.” ROA Vol. 5 at 148. This shows that the district court was focused on the

ownership of the vehicle, rather than where the vehicle was parked. Yet, questions

regarding the vehicle’s ownership, and who could speak for the vehicle, are relevant to

the fifth Sanders factor—whether the owner consented to impoundment. And, as the

government acknowledges, questions regarding liability for theft or vandalism are

relevant to the third factor—whether an alternative to impoundment existed. See Aple.

Br. at 32 (“[The motel owner’s] permission would have only been helpful to a point in

discerning an alternative to impoundment.”).

By contrast, the second Sanders factor goes to the private property owner’s

enjoyment of his or her private property, i.e., whether the vehicle’s presence caused a

nuisance. For example, the community-caretaking interest may permit officers to

impound a vehicle that interferes with a private property owner’s use or enjoyment of

their property. Indeed, the Code appears to contemplate this interest by authorizing police

to impound a vehicle that “limits the normal access to use of private property without the

express consent of the owner or person in lawful control of such property.” Lakewood,

Colo., Mun. Code § 10.42.010(A) (2020). In this case, however, the officers could not

have impounded Venezia’s vehicle based on the motel owner’s objection, because the

officers failed to even consult the motel owner, or anyone who could speak for the owner.

14 In sum, the second factor also weighs against finding the impoundment of

Venezia’s vehicle was justified by a legitimate community-caretaking rationale.

Factor Three: Alternatives to Impoundment

The third Sanders factor weighs against impoundment because the vehicle could

have remained at the motel parking lot until the motel owner objected to the vehicle’s

presence, until the officers contacted the vehicle’s registered owner, or until there was

reason to believe the registered owner could not be contacted and the vehicle would be

abandoned. Where an alternative to impoundment does not threaten public safety or

convenience, impoundment is less likely to be justified by a community-caretaking

rationale.

Here, as the district court found, and as the government asserts, the only

alternative to impoundment was to leave Venezia’s vehicle in the motel parking lot.

Venezia could not speak for the vehicle, nor was there anyone else present who could do

so. Thus, it is clear the vehicle could not have been moved. It is unclear, however, why

the vehicle needed to be moved at all. The district court found that the vehicle was legally

parked, was not impeding traffic, and did not pose a safety hazard. The only reason for

impoundment provided by the district court was that the vehicle would have been left

“where it is without protection, left in a high-crime area, where the risk of . . . vandalism,

theft or other criminal activity . . . is high.” ROA Vol. 5 at 157. In this case, the concern

over theft or vandalism was not reasonable for two reasons.

First, it was not reasonable for the officers to believe that the registered owner,

Luis Cuello, could not be contacted and that the vehicle would be abandoned. Certainly,

15 an abandoned vehicle on a public highway may be at risk of theft or vandalism, and thus

may be impounded under the community-caretaking doctrine. See Cady, 413 U.S. at 447

(holding that police lawfully impounded vehicle located on a highway, where “like an

obviously abandoned vehicle, it represented a nuisance”). And certainly, the officers were

unable to contact Cuello on the night of Venezia’s arrest.

Yet, the officers could not then reasonably conclude that they would continue to

be unable to contact Cuello. Indeed, the district court declined to find that the vehicle was

“abandoned.” ROA Vol. 5 at 156. Nor does the record indicate that the vehicle was

abandoned. The officers only began to contact Cuello by telephone after 9:00 P.M. 5 They

gave up on their attempts by 9:45 P.M. at the latest, when the vehicle was impounded.

ROA Vol. 1 at 54. The officers’ unsuccessful, late-night attempts to call Cuello do not

establish that the vehicle would have been left at the motel indefinitely. Accordingly,

there is no reasonable explanation for why the vehicle could not remain in the motel

parking lot until Cuello was reached, or why the vehicle needed to be impounded

immediately following Venezia’s arrest.

This case is unlike United States v. Kornegay, 885 F.2d 713 (10th Cir. 1989), in

several important ways. In Kornegay, the officers did not know where the vehicle was

5 During the suppression hearing, one of the officers testified that “[t]here’s a possibility that we may have requested . . . an agency in that jurisdiction of the registered owner’s address to go out and physically attempt to make contact.” Id. at 66. The officer, however, had “no personal knowledge or evidence to show that that actually occurred,” id., and the district court made no finding specific to physical contact. See id. at 142. Accordingly, we do not consider whether the officers also attempted to physically contact Cuello.

16 registered. The vehicle had a Missouri license plate temporarily fastened over a Louisiana

plate. 885 F.2d at 715. Thus, there was no way to determine who the owner was and

whether the owner would retrieve the vehicle. Here, the officers identified the registered

owner and had means of contacting him. Further, in Kornegay, the officers could not

identify the driver-arrestee because the driver’s license he produced pictured someone

else. Id. Thus, even if the officers could determine the owner, they had no way of

connecting the driver-arrestee to the vehicle. Here, the officers identified Venezia, and

thus could have released the vehicle back to him once his ownership was confirmed.

Accordingly, this case is more similar to Sanders, where we distinguished Kornegay by

reasoning that “police knew Sanders’ identity, place of residence, the origin of her

vehicle, and had other reasons to be assured that the vehicle would not be abandoned.”

796 F.3d at 1251 (citing Kornegay, 885 F.2d at 716).

Second, even though the motel parking lot was in a “high-crime area,” the risk of

theft or vandalism was not so imminent as to foreclose alternatives to impoundment. 6

There was simply nothing unusual, let alone harmful to public safety or convenience, in

6 We do not hold that a risk must be imminent in other impoundment cases. See Dissent at 12. Indeed, as the dissent points out, in other cases, an impoundment may be justified where there is no such immediacy. Id. at 12–13 (collecting cases). Yet, immediacy remains a relevant consideration in determining “whether an alternative to impoundment exists,” where, as here, the alternative is temporarily leaving the vehicle where it was found. Sanders, 796 F.3d at 1250. Just as our overarching inquiry is “the reasonableness of the officers’ decision in these circumstances to impound the vehicle for safekeeping until they could determine who owned it,” Dissent at 11, our inquiry under the third factor must be “the reasonableness of the alternative in these circumstances of leaving the vehicle at the motel until the officers could determine who owned it.”

17 leaving Venezia’s vehicle overnight in the motel parking lot. Ostensibly, doing so would

have been no different than what the motel’s guests do on a regular basis. In contrast to

the motel parking lot at issue here, the parking lot in Kornegay belonged to an auction

company. 885 F.2d at 716. The risk of theft or vandalism to a particular vehicle is greater

where, as in Kornegay, overnight parking is unusual, or where the vehicle would be out

of place or conspicuous. 7

Venezia’s inability to establish ownership at the time of his arrest did not make his

proposed alternative unworkable. The proper inquiry under the third factor is “whether an

alternative to impoundment exists” and is not focused on who suggested that alternative.

Sanders, 796 F.3d at 1250. Because Venezia could not establish ownership at the time of

his arrest, he could not mitigate the officers’ concerns of theft or vandalism. At the same

time, however, Venezia’s inability to establish ownership at the time did not exacerbate

the risk of theft or vandalism. In fact, police officers generally do not know who owns a

parked vehicle. Accordingly, police officers generally do not impound vehicles when

they cannot locate the vehicle’s owner at 9:00 P.M. The mere absence of a lawful owner

does not, on its own, justify impoundment. See Pappas, 735 F.2d at 1234 (“Opperman

7 We do not question the district court’s factual findings. See Dissent at 14. We credit the district court’s finding that the motel was located in a high-crime area, and that leaving the vehicle at the motel exposed it to the risk of theft or vandalism. We disagree, however, that such a risk, which was common to every car located in the area, foreclosed any “real alternative.” ROA Vol. 5 at 149. That the motel’s guests regularly park their cars overnight demonstrates such an alternative existed. And we review the district court’s application of Sanders de novo, rather than for clear error. Sanders, 796 F.3d at 1243–44.

18 cannot be used to justify 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.”).

Under the facts and circumstances of this case, leaving the vehicle in the motel

parking lot overnight did not expose it to unnecessary risk of theft or vandalism.

Accordingly, an alternative to impoundment existed—namely, leaving the vehicle in the

motel parking lot until the motel owner objected, Cuello objected, or it became

reasonable to conclude Cuello could not be contacted and the vehicle would be

abandoned. 8

Factor Four: Implicated in a Crime

The fourth Sanders factor weighs against impoundment because impounding

Venezia’s vehicle would not have provided further evidence of the traffic violations or

outstanding warrant for which Venezia was arrested.

Factor Five: Consent of Owner and/or Driver

Venezia concedes this final Sanders factor “arguably favors impoundment.” Aplt.

Br. at 12. He acknowledges that since “the officers could not determine at the time [of his

8 The dissent asserts that “the question here is not whether the officers . . . could have acted more solicitously . . . but whether their decision was, under all the circumstances, within the realm of reason.” Id. at 11; see also id. at 17 (“[T]he test of reasonableness is whether the officers’ decision was, under all the circumstances, within the realm of reason—not whether they needed to impound the vehicle in some absolute sense.”). Although not dispositive, we must consider the existence of alternatives when determining whether an impoundment was justified by a reasonable community- caretaking rationale. Sanders, 796 F.3d at 1250. Put differently, the existence of alternatives falls within “all the circumstances” under which we evaluate the reasonableness of a community-caretaking rationale.

19 arrest] that Mr. Venezia owned the vehicle, his consent or lack thereof was not terribly

relevant to the impoundment decision. And the officers tried and failed to contact the

vehicle’s registered owner.” Id. The fifth factor therefore weighs in favor of finding the

impoundment was justified.

Weighing the Factors

To summarize: the vehicle at issue was legally parked on private property, did not

impede traffic, and did not pose a safety hazard. The private property owner did not

object to the vehicle’s presence. None of these facts are in dispute. Rather, the parties

dispute whether leaving Venezia’s vehicle in the motel parking lot would have

unnecessarily exposed it to risk of theft or vandalism.

As discussed above, the vehicle in this case was not at unnecessary risk of theft or

vandalism, and thus the officers lacked a reasonable community-caretaking rationale. The

officers could not reasonably conclude that the vehicle would be unattended for a

prolonged period of time based on their unsuccessful 9:00 P.M. attempt to call the

vehicle’s registered owner. And the vehicle’s presence in the motel parking lot was no

different than any other vehicle in the lot. For these two reasons, the officers’ decision to

impound the vehicle was not guided by a reasonable community-caretaking rationale as

required under the second Sanders prong. The officers could no more impound Venezia’s

vehicle than they could impound any other vehicle at the motel, assuming its driver was

unavailable and its registered owner could not be reached that night.

It is unnecessary to decide whether the asserted community-caretaking rationale

was also “pretextual.” In fact, in this case, the evidence of pretext is scant. Yet, we held

20 in Sanders that an asserted community-caretaking rationale must be both “reasonable”

and “non-pretextual.” Id. at 1248. The officers in this case were attempting to rely on

their standardized policy when impounding the vehicle. That policy, however, as

exercised here, simply did not grant the officers authority to do what the Fourth

Amendment forbids—to impound a vehicle absent a reasonable community-caretaking

***

“Ascertaining whether an impoundment is justified by a reasonable and legitimate,

non-pretextual community-caretaking rationale is not an easy task.” Sanders, 796 F.3d at

1250. Yet, in that task, we are guided by the Supreme Court’s illustrations of the

community-caretaking doctrine in Cady and Opperman, and this court’s enumeration of

community-caretaking factors in Sanders. Here, reviewing the specific facts of this case

de novo, we conclude that the impoundment was inconsistent with the Supreme Court’s

description of the community-caretaking doctrine, and this court’s enumerated factors in

Sanders. 9

9 The dissent asserts that United States v. Johnson, 734 F.2d 503, 504 (10th Cir. 1984) (per curiam) compels us to affirm. See Dissent at 4–5. The government did not cite Johnson in its briefing, let alone argue for its application. And, in any event, the night club parking lot at issue in Johnson is easily distinguishable from the motel parking lot at issue in this case. So far as we are aware, motel guests are less likely to park for a few hours at night, and more likely to stay overnight at the premises, than night club patrons. Thus, the officers’ community-caretaking concerns are less reasonable here than they were in Johnson. The out-of-circuit cases that the dissent relies upon similarly address circumstances where overnight parking is less common than at motels. See, e.g., Ramirez v. City of Buena Park, 560 F.3d 1012, 1025 (9th Cir. 2009) (drugstore parking lot); United States v. Smith, 2005 WL 2746657 at *4, 05-cr-257, (E.D. Pa. Oct. 24, 2005) (public street obstructing a bus stop), aff’d 522 F.3d 305 (3d Cir. 2008); United States v. 21 III. CONCLUSION

For the reasons stated, we REVERSE the district court’s denial of his motion to

suppress and REMAND with directions to VACATE Venezia’s conviction and sentence.

Petty, 367 F.3d 1009, 1012 (8th Cir. 2004) (parking lot of a business that was closed); United States v. Ramos-Morales, 981 F.2d 625, 626 (1st Cir. 1992) (public street outside an unknown building); United States v. Staller, 616 F.2d 1284, 1290 (5th Cir. 1980) (mall parking lot). To say these cases addressed “similar circumstances” is generous. Dissent at 1.

22 No. 19-1432, United States v. Venezia BALDOCK, Circuit Judge, dissenting.

Until today, the Fourth Amendment permitted police officers to act as community

caretakers and impound an arrestee’s vehicle for safekeeping when no one is available to

take custody of it and the circumstances present the potential for theft or vandalism.

United States v. Kornegay, 885 F.2d 713, 716 (10th Cir. 1989); United States v. Johnson,

734 F.2d 503, 505 (10th Cir. 1984) (per curiam). To reach its contrary judgment, the

Court flouts precedent and turns a blind eye to the numerous decisions of this Court and

other courts upholding warrantless vehicle impoundments under similar circumstances.

In the process, too, the Court disregards facts, ignores record evidence, and dispenses

with our conventional rule that we do not judge the reasonableness of an officer’s

decision with 20/20 hindsight. Unable to rely on law or facts, the Court is left to

substitute its own speculative judgment about why the officers here could not reasonably

conclude that leaving the to-be-determined owner’s vehicle unattended in a high-crime

area for an undetermined length of time could subject it to theft or vandalism. Because

this decision is contrary to both precedent and common sense, I cannot agree with it.

Let’s start with what the Court has correct. First, the Court identifies the

applicable standard: When a vehicle located on private property “is not impeding traffic

or impairing public safety, impoundments are constitutional only if guided by both [1]

standardized criteria and [2] a legitimate community-caretaking rationale.” United States

v. Sanders, 796 F.3d 1241, 1243 (10th Cir. 2015). Second, applying that rule, the Court properly concludes that the officers’ decision to impound Mr. Venezia’s vehicle was

guided by standardized criteria that cabined their discretion in performing their

community-caretaking function.

Third, I also agree that some of the factors we outlined in Sanders—the vehicle

was parked on private property and was not implicated in a crime, and the officers did not

consult with the motel owner—weigh against the reasonableness of the impoundment

here. Id. at 1250. But as the Court correctly points out (and its analysis illustrates), the

five non-exclusive factors we listed in Sanders are exactly that—some things courts have

considered when assessing the constitutionality of a warrantless vehicle impoundment.

Id. Those factors can serve as a guide in evaluating an officer’s decision to impound a

vehicle, but they are not the sine qua non of a reasonable community-caretaking

rationale. Instead, “as in all Fourth Amendment cases, we are obliged to look to all the

facts and circumstances of this case in light of the principles set forth in [our] prior

decisions.” South Dakota v. Opperman, 428 U.S. 364, 375 (1976).

Where I part ways with the Court is at the next question: Under the particular

circumstances Officers Tubbs and Jewkes encountered, did they have a reasonable, non-

pretextual reason for impounding Mr. Venezia’s vehicle? Short answer: Yes.

My analysis, of course, begins with the facts of this case. The district court

determined that the officers made a lawful traffic stop and properly arrested Mr. Venezia

on an outstanding warrant. Mr. Venezia was the driver and sole occupant of the vehicle.

He did not have a driver’s license—which the officers determined had been revoked—

registration for the vehicle, car insurance, title to the vehicle, a bill of sale, or anything

2 else to suggest he owned the vehicle. When asked about the vehicle’s registered owner,

Mr. Venezia said he did not recognize the name. The officers attempted to contact the

registered owner of the vehicle, but they were unsuccessful. Based on credible officer

testimony, the district court found that Mr. Venezia’s vehicle was parked in a motel

parking lot located in a high-crime area. These findings are not clearly erroneous.

United States v. Cortez, 965 F.3d 827, 833 (10th Cir. 2020) (explaining that we view the

evidence in the light most favorable to the government, accept the district court’s factual

findings unless they are clearly erroneous, and review legal conclusions de novo).

Given these circumstances, the officers could reasonably infer that the vehicle

might be the subject of theft, vandalism, or other damage if left on the premises without a

responsible custodian. Because no third party was available to entrust with the vehicle’s

safekeeping, the officers also could not be certain how long the vehicle would be

vulnerable to criminal activity in Mr. Venezia’s absence. Even if Mr. Venezia did not

expect to be in custody long, he would not have been able to operate the vehicle himself

on release due to his revoked license. Nor did Mr. Venezia have authority to direct

someone to take custody of the vehicle or move it on his behalf because he was unable to

establish his ownership.

To be sure, the officers had strong reason to doubt Mr. Venezia was lawfully in

possession of the vehicle. And, resisting “the temptation of offering critiques with the

20/20 vision of hindsight,” they also had good reason to believe it might take several

days, if not longer, to figure out who owned the vehicle. See United States v. Harris, 735

3 F.3d 1187, 1191 (10th Cir. 2013) (Gorsuch, J.) (internal quotation marks omitted).

Specifically, the district court found Mr. Venezia had driven the vehicle

with the [license] plates on the inside, [was] beading sweat, when being . . . spoken to by police, [wa]s unable to produce [a] driver’s license, registration, insurance, bill of sale[,] or anything else[. He] simply sa[id] that he bought the car recently, but couldn’t get it insured or registered because of the holidays, [which] is not much of an explanation, and certainly not one that would be unreasonable for the police to refuse to accept at face value.

ROA, Vol. V at 147–48.

At bottom, the officers had two options following Mr. Venezia’s arrest: leave the

vehicle where it was or impound it. By choosing the second option and transporting the

to-be-determined owner’s vehicle to a secure location, the officers ensured the vehicle

was not left unattended in a high-crime area for an undetermined length of time, during

which it could have been stolen or damaged. That was a reasonable choice under the

circumstances. And, as the Court recognizes, nothing in the record suggests the officers

acted in bad faith or solely for the purpose of investigation in exercising their discretion

to impound the vehicle. Thus, as the district court concluded, the officers’ decision to

impound Mr. Venezia’s vehicle was guided by a reasonable, non-pretextual community-

caretaking rationale.

Our precedent compels us to affirm. In United States v. Johnson, for example, the

police impounded the defendant’s vehicle for safekeeping after arresting him on

suspicion of being in actual control of an automobile while intoxicated. 734 F.2d at 504.

The vehicle was legally parked in the parking lot of a night club, where it posed no

hazard to public safety or convenience. See id. We held that the impoundment was “an

4 appropriate exercise of the ‘community caretaking functions’ which the police have a

responsibility to discharge” because (1) the defendant was unable to move the vehicle

and (2) the officers were concerned about vandalism. Id. at 505 (quoting Opperman, 428

U.S. at 368–69, and Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).

The exact same factors are applicable here. Yet the Court suggests that we should

ignore on-point precedent because the government did not cite Johnson in its brief.

Majority Op. at 21 n.9. We, as neutral arbiters, “rely on the parties to frame the issues for

decision.” Colorado v. EPA, 989 F.3d 874, 885 (10th Cir. 2021) (quoting United States

v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)). But “[w]hen an issue or claim is

properly before the court,” it “retains the independent power to identify and apply the

proper construction of governing law.” United States v. Guidry, 199 F.3d 1150, 1159 n.5

(10th Cir. 1999) (quoting United States Nat’l Bank v. Independent Ins. Agents of Am.,

Inc., 508 U.S. 439, 446 (1993)). If the majority wishes to decide this case “according to a

truncated body of law, [it] should refrain from issuing an opinion that could reasonably

be understood by lower courts and nonparties to establish binding circuit precedent on the

issue decided.” See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 100 n.5 (1991); see

also United States v. Sabillon-Umana, 772 F.3d 1328, 1334 n.1 (10th Cir. 2014) (“In

cases of conflicting circuit precedent our court follows earlier, settled precedent over a

subsequent deviation therefrom.” (Gorsuch, J.) (cleaned up)).

Perhaps recognizing as much, the Court goes on to say that Johnson is inapposite

because that case involved a night club parking lot and this case involves a motel parking

lot. But given the facts here, that is a distinction without a difference. The Court ignores

5 that the police had fielded “significant high-priority calls for service,” including

S.W.A.T. calls, at the motel where the vehicle was parked. ROA, Vol. V at 47. It also

disregards that vehicle trespasses and thefts often occurred in the “very immediate area”

where the motel and its parking lot were located. Id. at 54. What’s more, the officers in

Johnson had no reason to question the defendant’s ownership of his vehicle, which

presumably was properly registered and insured. Because my colleagues cannot explain

why the officers in Johnson acted reasonably but the officers here did not, it appears they

have resorted to implicitly overruling precedent.

A few years later, in United States v. Kornegay, we reaffirmed that theft and

vandalism are legitimate community-caretaking concerns even when a vehicle is legally

parked on private property and poses no hazard to public safety or convenience. There

the officers arrested the defendant while he was inside an auction house attempting to

collect proceeds from the sale of two stolen tractors. 885 F.2d at 715. The officers

impounded the defendant’s vehicle, which he had parked in the auction company’s

private lot, and conducted an inventory search of its contents. Id. The defendant argued

there was no need to impound his vehicle because it was legally parked in a private lot, it

was not blocking traffic, the auction company had not requested its removal, and his

refusal to consent relieved the officers of any potential liability for failure to protect his

property. Id. We rejected those arguments and held that the impoundment was

reasonable because the defendant’s true identity and place of residence were unknown;

the defendant “was alone, and there was no friend, relative or companion who could be

asked to care for the car”; “the vehicle was not parked on [the defendant’s] property”; he

6 was unlikely to return soon to take care of the vehicle; and leaving the vehicle in the

auction company’s lot “could have subjected it to vandalism or theft.” Id. at 716.

As in Kornegay, Mr. Venezia’s vehicle was parked in a private lot, it was not

blocking traffic, and the owner of the lot had not requested its removal. After the officers

arrested Mr. Venezia, no one else was present or promptly available who could move the

vehicle or take custody of it. The officers “did not know where the vehicle was from,”

and leaving it in the motel parking lot “could have subjected it to vandalism or theft.”

See id. Yet, once again, the Court fails to explain why the agents in Kornegay acted

reasonably but the officers here did not.

The officers’ decision to impound Mr. Venezia’s vehicle not only falls within the

scope of Johnson and Kornegay but is also consistent with many precedents of our sister

circuits finding police impoundment to protect a vehicle from theft or vandalism

reasonable. See, e.g., Ramirez v. City of Buena Park, 560 F.3d 1012, 1019, 1025 (9th

Cir. 2009) (holding impoundment of a vehicle legally parked in a drugstore parking lot a

little over a mile from the defendant’s home was justified because (1) there was “nothing

in the record indicating when [the defendant] could return to the drugstore to retrieve his

car” and (2) “[l]eaving [the defendant’s] car in the drugstore parking lot would have

made it an easy target for vandalism or theft”); United States v. Smith, 522 F.3d 305,

314–15 (3d Cir. 2008) (concluding that officers reasonably impounded a vehicle when no

one was available to take custody of it, they did not know who owned it, and the vehicle

was parked in an area where “vehicles were subject to being damaged, vandalized, or

stolen”); United States v. Petty, 367 F.3d 1009, 1011–13 (8th Cir. 2004) (upholding

7 decision to impound a vehicle legally parked in a private lot in an area known for

narcotics and prostitution because the officers were concerned about theft or damage);

United States v. Ramos-Morales, 981 F.2d 625, 626–27 (1st Cir. 1992) (Breyer, J.)

(upholding impoundment of a vehicle legally parked in a residential neighborhood based

on concerns about theft and vandalism); United States v. Staller, 616 F.2d 1284, 1290

(5th Cir. 1980) (finding impoundment reasonable when the arrestee’s vehicle was legally

parked in a private lot but no one was immediately available to take custody of it and

leaving it parked overnight presented an “appreciable risk of vandalism or theft”).

The Supreme Court itself has also suggested that preventing theft or vandalism is a

legitimate community-caretaking reason to impound a vehicle. In Colorado v. Bertine,

the Supreme Court cited with approval a police policy that prohibited parking and

locking a vehicle rather than impounding it “where there is reasonable risk of damage or

vandalism to the vehicle.” 479 U.S. 367, 376 n.7 (1987). The policy not only

“circumscribe[d] the discretion of individual officers,” the Court explained, but “also

protect[ed] the vehicle and its contents and minimize[d] claims of property loss.” Id.

Given the law and the facts, it’s unsurprising that this Court is unable to explain

why this case doesn’t meet our community-caretaking standard. The Court gives two

reasons for reaching this conclusion, and neither of them withstands scrutiny.

First, the Court tries to distinguish Kornegay and liken this case to Sanders by

pointing out that the officers had identified Mr. Venezia and could have released the

vehicle back to him once his ownership was confirmed. I admire my colleagues’ attempt

to treat like cases alike, as that may be the first and most prosaic duty of the judge. But

8 the problem with the Court’s argument is that the circumstances in Sanders—and in our

related precedents in which we have held impoundments unconstitutional—were

meaningfully different from those present here. In fact, the critical distinctions between

those cases and this one provide additional support for the conclusion that Officers Tubbs

and Jewkes reasonably carried out their community-caretaking duty.

In Sanders, the officers did not have to concern themselves with identifying the

owner of the vehicle, which presumably was properly registered and insured, because

they believed the defendant owned it. 796 F.3d at 1243, 1251. Although the defendant

told the officers she would have someone pick up her vehicle on her behalf, and her

companion offered to find someone to pick it up for her, the police impounded the

vehicle. Id. at 1251. Under these circumstances—particularly because the defendant

expressed a willingness to accept the risk of a break-in—we determined the officers’

concerns about theft and vandalism were unreasonable, pretextual, and therefore could

not justify the impoundment. Id. at 1251 & n.2.

Similarly, in United States v. Pappas, the officers had no reason to question the

defendant’s ownership of his vehicle, which presumably was properly registered and

insured. 735 F.2d 1232, 1233–34 (10th Cir. 1984). Nor did the officers raise any

concern that leaving the vehicle in the parking lot of a local bar could have subjected it to

theft or vandalism. See id. To the contrary, the district court’s factual findings suggest

the vehicle likely would have been safe in the local bar’s parking lot because the

defendant was “a well known person in the community” and his family lived nearby. See

id. at 1234. The district court also found that other unpursued, yet readily available,

9 alternatives to impoundment existed. Id. Specifically, the defendant’s friends were

present and might have taken custody of the vehicle if asked, and the defendant’s family

could have been called to pick up the vehicle. Id. On these facts, we agreed with the

district court that the impoundment was unreasonable. Id.

Unlike Sanders and Pappas, where the defendants were lawfully in possession of

their vehicles, and clear and promptly available alternatives to impoundment were

present, Mr. Venezia had no means of ensuring prompt removal of his vehicle from the

motel parking lot. Cf. Sanders, 796 F.3d at 1245 (recognizing that in Kornegay we

“distinguished Pappas on the basis that Pappas’ associates had ample opportunities to

retrieve his vehicle”). The panel cites no case in which this Court or any other court has

deemed an impoundment unreasonable when the vehicle’s ownership was uncertain, no

third party could take custody of the vehicle, and leaving the vehicle unattended could

have subjected it to theft or vandalism. Indeed, this Court has repeatedly upheld

impoundments as reasonable when either the vehicle’s occupants were unable to show

ownership at the time of the arrest or no third party was available to take custody of the

vehicle. United States v. Trujillo, --- F.3d ---, No. 19-2212, 2021 WL 1257759, at *5

(10th Cir. Apr. 6, 2021) (collecting cases); see also United States v. Hannum, 55 F.

App’x 872, 873, 876 (10th Cir. 2003) (unpublished) (upholding impoundment of a

vehicle legally parked in a private lot under the community-caretaking doctrine because

the defendant could not produce proper registration or proof of insurance).

In light of our prior decisions, Mr. Venezia’s inability to establish ownership of

the vehicle at the time of his arrest weighs strongly in favor of finding the impoundment

10 constitutional. After Mr. Venezia surrendered control over the vehicle, the officers were

faced with the choice either of transporting the to-be-determined owner’s property to a

secure location or of leaving it vulnerable to theft and vandalism. Contrary to the Court’s

suggestion, the officers were not obligated to conduct a more exhaustive investigation of

potential custodians following Mr. Venezia’s arrest. Nor were they required to wait until

the vehicle was abandoned before impounding it. As the Supreme Court said in Bertine:

“The real question is not what could have been achieved, but whether the Fourth

Amendment requires such steps . . . [.] The reasonableness of any particular

governmental activity does not necessarily or invariably turn on the existence of

alternative less intrusive means.” 479 U.S. at 374 (cleaned up)). In short, I am aware of

no precedent that would question the reasonableness of the officers’ decision in these

circumstances to impound the vehicle for safekeeping until they could determine who

owned it.

Second, the Court says the officers acted unreasonably because leaving Mr.

Venezia’s vehicle in the motel parking lot would not have exposed it to an “unnecessary”

risk of theft or vandalism. Majority Op. at 19. But the question here is not whether the

officers needed to impound the vehicle in some absolute sense or could have acted more

solicitously—as the majority suggests—but whether their decision was, under all the

circumstances, within the realm of reason. Bertine, 479 U.S. at 374. When the issue is

framed correctly, the answer (once again) is yes.

The main problem with the Court’s argument is factual. We must read the record

favorably to the government and defer to the district court’s factual findings unless they

11 are clearly erroneous. Cortez, 965 F.3d at 833. Officer Tubbs testified that the police

had fielded “significant high-priority calls for service,” including S.W.A.T. calls, at the

motel where the vehicle was parked. ROA, Vol. V at 47. He also explained that vehicle

trespasses and thefts often occurred in the “very immediate area” where the motel and its

parking lot were located. Id. at 54. The district court credited this testimony and found

that the motel parking lot was in a high-crime area. Id. at 140, 145. This finding of fact

is not clearly erroneous. Cortez, 965 F.3d at 833.

When the district court’s factual findings and the record evidence are properly

considered, it is hard to make a plausible argument that the circumstances encountered by

the officers did not present “the potential for theft or vandalism.” See Kornegay, 885

F.2d at 716. Still, the Court argues that the officers acted unreasonably because the risk

of theft or vandalism was not “so imminent” as to require immediate impoundment.

Majority Op. at 17. That view is as mistaken as it is novel.

The Court cites no authority to support its theory that the risk of theft or vandalism

is sufficient to justify an impoundment only when that risk is “imminent” under the

circumstances. Id. Such a requirement is nowhere to be found in any of our precedents.

What’s more, several of this Court’s unpublished decisions upholding impoundments as

reasonable based on officer concerns about theft or vandalism are inconsistent with an

imminent-risk requirement. See, e.g., Hackett v. Artesia Police Dep’t, 379 F. App’x 789,

793 (10th Cir. 2010) (Briscoe, J.) (holding that, “[u]nder the community caretaking

doctrine, concerns about theft or vandalism [were] sufficient to justify impoundment”

after the officer issued a citation for driving a vehicle with an expired license plate and

12 the defendant “could not produce a valid driver’s license, registration, or proof of

insurance”; and rejecting arguments that “it was unnecessary to impound the vehicle

because it was parked in a store parking lot, and thus neither impeded traffic nor affected

the public safety,” and that the officer should have allowed the defendant to call a friend

to remove the vehicle on a car trailer); United States v. Walker, 81 F. App’x 294, 297

(10th Cir. 2003) (upholding impoundment of a vehicle parked in a private lot where the

defendant “was alone at the time of his arrest, there was no one immediately available to

move his car to a safe location,” and “the vehicle was located in area where it could have

inhibited business or been subject to theft or vandalism”); United States v. Andas-

Gallardo, 3 F. App’x 959, 963–64 (10th Cir. 2001) (finding impoundment reasonable

when there was no evidence about how long it might take the defendant or his family to

retrieve the vehicle or how safe it would be if left unattended, although the vehicle was

properly registered, lawfully parked in a private lot, and did not pose a public hazard or

nuisance). The Court acknowledges as much, yet brushes aside this inconsistency. See

Majority Op. at 17 n.6.

Whatever other problems lurk in the Court’s line of reasoning, it rests on at least

one other faulty premise. The Court speculates that the “risk of theft or vandalism to a

particular vehicle is greater where, as in Kornegay, overnight parking is unusual, or

where the vehicle would be out of place or conspicuous.” Majority Op. at 18. According

to the Court, the motel parking lot in this case was a safe haven for unattended vehicles

because “the motel’s guests regularly park their cars overnight” there. Id. Thus, says the

Court, a reasonable alternative to impoundment existed. Because no legal authority or

13 factual basis in the record—such as whether cars were regularly parked overnight at this

motel—supports this argument, it’s unsurprising that Mr. Venezia never made it.

In any event, the Court’s argument is flawed for a more fundamental reason: it

dispenses with our obligation to view the evidence in the light most favorable to the

government and defer to the district court’s factual findings. Cortez, 965 F.3d at 833.

It’s unclear from the opinion in Kornegay what evidence supported the reasonableness of

the officers’ concerns about theft and vandalism, or whether the district court made any

factual findings about the safety of the area where the auction company’s parking lot was

located. See 885 F.2d at 716. But what we do know is that the district court here made

such factual findings based on credible testimony that the motel parking lot was in a

high-crime area where vehicle trespasses and thefts often occurred. And on those facts, it

strains credulity to say that the officers unreasonably believed that leaving “the vehicle in

the [motel’s] parking lot—a lot open to the public—could have subjected it to vandalism

or theft.” Id. (emphasis added).

The Court fails to explain how the presence of other vehicles in the motel parking

lot extinguished the reasonableness of the officers’ determination that leaving the to-be-

determined owner’s vehicle in a high-crime area where vehicle trespasses and thefts often

occurred was not a prudent alternative. Such risks are dependent on the character of the

parking lot and the propensity for vehicle theft and vandalism in the area—not on the

number of nearby targets. After all, the odds of a car being stolen or vandalized are less

when it is parked by itself in a remote area with a low rate of vehicle trespass than when

it is parked in an area where vehicle trespasses and thefts often occur.

14 The Court also fails to cite a single case suggesting that the officers unreasonably

impounded Mr. Venezia’s vehicle because it was parked in a location where overnight

parking is typical. I am aware of no authority for such a proposition. To the contrary,

we—along with other courts—have regularly upheld impoundments under similar

circumstances when a vehicle, if left unattended following the driver’s arrest, would not

have been out of place or conspicuous. See, e.g., United States v. Martin, 566 F.2d 1143,

1144–45 (10th Cir. 1977) (upholding impoundment of vehicle legally parked on a

residential street when the defendant, who had just been placed under arrest for public

intoxication, “was in no condition to drive his vehicle” and the other vehicle occupant

had been arrested for carrying a concealed weapon); Ramos-Morales, 981 F.2d at 626–27

(holding that concerns about theft and vandalism justified impoundment, and rejecting

the defendant’s argument that the police acted unreasonably because the vehicle would

not have been “out of place” where it was legally parked on a residential street “just

outside his home”); United States v. Brown, 787 F.2d 929, 931–32 (4th Cir. 1986)

(concluding that the police reasonably impounded a vehicle legally parked in a private lot

that serviced nearby apartments, and rejecting the defendant’s argument that the officer

should have left the car in the custody of his girlfriend who lived in an apartment building

adjoining the lot); United States v. Cauthen, 669 F. Supp. 2d 629, 633–37 (M.D.N.C.

2009) (finding that the police reasonably impounded a vehicle for the purpose of

protecting it after the defendant’s arrest, and rejecting the defendant’s argument that the

officers should have left his vehicle in the motel’s private parking lot where it was legally

15 parked). The Court does not address those decisions—let alone explain what

distinguishes this case.

Make no mistake. Officers Tubbs and Jewkes could have ignored Mr. Venezia’s

inability to establish ownership of the vehicle, brushed aside their concerns about theft

and vandalism, and left the vehicle parked in a high-crime area (with its attendant

consequences). But given the circumstances they encountered, leaving the to-be-

determined owner’s vehicle in the motel parking park was not a prudent alternative.

While I will not go so far as to suggest that the officers would have been irresponsible if

they had not removed the vehicle for safekeeping, a legitimate argument could be made

that they would have been. Thus, the third Sanders factor—“whether an alternative to

impoundment exists (especially another person capable of driving the vehicle)”—weighs

in favor of impoundment. 796 F.3d at 1250 (emphasis added). And when that factor,

along with the others, is considered in light of the totality of the circumstances and our

prior decisions, the impoundment here certainly was reasonable.

At bottom, the officers’ decision to act as community caretakers and impound the

to-be-determined owner’s vehicle for safekeeping rather than leave it unattended in an

area where vehicle trespasses and thefts often occurred was not unreasonable under the

Fourth Amendment. The Court’s contrary conclusion is simply wrong.

I have great admiration for my two distinguished colleagues in the majority. And

I recognize that determining whether an impoundment is guided by a reasonable, non-

pretextual community-caretaking rationale is not always an “easy task.” Id. But in my

16 view, this decision jumps the rails. To rule as it does, this Court bypasses precedent,

jettisons the district court’s factual findings, and ignores record evidence. Along the way,

it rejects the longstanding principle that the test of reasonableness is whether the officers’

decision was, under all the circumstances, within the realm of reason—not whether they

needed to impound the vehicle in some absolute sense. This distortion of our

community-caretaking standard does not advance the purposes of the Fourth Amendment

or further respect for the Constitution. And neither caselaw nor common sense can

sustain it.

Respectfully, I dissent.