U.S. v. Ramos-Morales, RAMOS-MORALE

• Decision Date: 06 October 1992
• Docket Number: D,RAMOS-MORALE,No. 92-1255,92-1255
• Citation: 981 F.2d 625
• Parties: UNITED STATES, Appellee, v. Wilbertoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 625

981 F.2d 625

UNITED STATES, Appellee, v. Wilberto RAMOS-MORALES, Defendant, Appellant.

No. 92-1255.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 1992.

Decided Dec. 31, 1992.

Jose R. Aquayo, for appellant.

Carlos A. Perez, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., was on brief for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BREYER, Chief Judge.

Federal agents of the Drug 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 U.S. 367, 375, 107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987). Lower courts have found that the police may lawfully impound a vehicle that would otherwise remain on the side of a public highway or city street, see United States v. Rodriguez-Morales, 929 F.2d 780 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992); United States v. Velarde, 903 F.2d 1163 (7th Cir.1990); United States v. Duncan, 763 F.2d 220 (6th Cir.1985); United States v. Griffin, 729 F.2d 475 (7th Cir.), cert. denied, 469 U.S. 830, 105 S.Ct. 117, 83 L.Ed.2d 60 (1984); United States v. Taddeo, 724 F.Supp. 81 (W.D.N.Y.1989), aff'd, 932 F.2d 956 (1st Cir.1991); or in a private parking lot, see United States v. Kornegay, 885 F.2d 713 (10th Cir.1989), cert. denied, 495 U.S. 935, 110 S.Ct. 2179, 109 L.Ed.2d 508 (1990); United States v. Johnson, 734 F.2d 503 (10th Cir.1984); United States v. Staller, 616 F.2d 1284 (5th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980).

The appellant tries to distinguish these cases by arguing that he parked his car off the street in a private 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 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 U.S. at 375-76, 107 S.Ct. at 742-43.

Finally, and perhaps most importantly, the Supreme Court in Bertine seemed specifically to hold that the 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 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, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (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 page 626, 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 the side of the road (the police having stopped, and presumably pulled over, the drunk driver) near a busy intersection, while the car in this case was at the side of the road in a residential neighborhood. (The dissent's claim that the police in Bertine "could not have left the 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 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.

BOWNES, Senior Circuit Judge, dissenting.

Once 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. Lanni, 951 F.2d 440, 441 (1st Cir.1991). This means that we 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, 943 F.2d 110, 112 (1st Cir.1991). See also, United States v. Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992) ("[a]lthough 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.").

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, [34 S.Ct. 341, 58 L.Ed. 652] (1914); ...