Colorado Criminal Law – Illegal Auto Seizures & Unjustifiable Inventory Searches
Colorado Criminal Law – Illegal Auto Searches &Unjustifiable Inventory Searches – Every search under Federal and State Constitutional law requires that a search warrant is obtained unless the search comes within an exception to the warrant requirement. One such exception is the so called “inventory search” exception.
Two recent (2018) Colorado Supreme Court cases narrow the grounds for the use of the inventory search as a pretext to illegally search a vehicle when there are no legitimate policy based reasons to support a seizure of the vehicle and an inventory search of that car.
On the streets and highways of Colorado thousands of tickets (summons) are written each year for traffic crimes such as DUI. In the past, (but perhaps no longer), the police had the apparent right to seize the vehicles of those ticketed or arrested for “safekeeping” …. with a subsequent search of these vehicles utilizing a procedure called an “inventory search.”
If contraband was found such as illegal to possess controlled substances during these so called “inventory searches,” charges would be filed against the owner or possessor of the car.
An Example (People v Brown)
In the Brown case, the police received an anonymous report of a suspicious person driving a gray BMW in the area. The Aurora police found Brown’s gray BMW and observed Brown fail to stop at a stop sign. Brown was pulled over and issued a ticket for driving on a suspended license but did not arrest him.
Utilizing a routine police procedure authorized under Aurora law, the police decided to impound his vehicle and then inventory the BMW’s contents – finding several bags of cocaine. Brown was arrested and charged with the drug felonies.
In the motion to suppress the seized drugs hearing based on an alleged illegal search, the Prosecution argued that Aurora’s police policies and procedures granted the officers the right to conduct an inventory search and the search was not pretextual, … even if the officers hoped to find evidence of a crime.
The Community Caretaking Function Of Colorado Law Enforcement
The grounds asserted for the seizure and search of the car in the Brown case was based on a loosely understood concept of the “community caretaking” function performed by the police.
The Colorado Supreme Court had plenty to say about the so called “community caretaking” exception to the requirement that the police secure a warrant before searching a vehicle under these circumstances. The Court pointed out that the authority of the police to act in furtherance of a “community caretaking” function does not originate from the same source as their authority to investigate criminal activity such as an investigatory or “Terry Stop.”
Community care taking:
…is not concerned with potential criminal activity, but rather with administration of the risk to public safety threatened by the vehicle.
The fact that an impoundment complies with a state statute or police policy, by itself, is insufficient to justify an impoundment under the community caretaking exception.
The primary purpose of the community caretaking function of the police is protecting against danger or loss in the seizure of private property and includes the risk of false claims of loss against police departments.
What follows is the key to the Court’s decision to the Brown case decision:
…in the absence of an arrest, seizing the defendant’s vehicle so as to provoke an inventory of its contents could not be justified as an exercise of the police caretaking function, and in the absence of any other recognized exception to the probable cause and warrant requirements of the Fourth Amendment, violated its prohibition against unreasonable searches and seizures.
The Court’s Reasoning In The Brown Case
Because the District Attorney could not provide A REASON to impound the car other than the inventory search was authorized by Aurora police policy and procedure it did not matter that the police followed their department’s inventory procedure. The officers lacked justification for taking the vehicle into the cities’ custody in the first place.
The seizure of the car was not justified because the DA provided no evidence or other reason that the Defendant could not: “lawfully provide for the vehicle himself, and thereby prevent it from becoming a public hazard or subjecting the police to liability for the loss of it or its contents.”
Stated differently, the State failed to prove that the seizure of the Defendant’s vehicle was justified as an exercise of the police caretaking function or was otherwise reasonable within the meaning of the Fourth Amendment.
The reasoning offered by the State was that they were entitled to seize and search the driver’s car
“…without a warrant in order to prevent any possible future crimes was rejected because it (smacks of pretext) and is insufficient to overcome the warrant requirement of the Fourth Amendment.”
There was no threat to public safety by leaving the car accessible to the driver.
As of the Brown decision by the Colorado Supreme Court – right now – even if police officers have reason to suspect that the driver who is ticketed will unlawfully drive the vehicle upon the departure of the police from the scene, the community caretaking exception to the probable cause and warrant requirements of the Fourth Amendment WILL NOT support the seizure and inventory search of the car on the basis of suspicion that the Driver has committed, is committing, or will commit a crime.
The deterrence rationale underlying exceptions to the warrant requirement of the Fourth Amendment is incompatible with the principles of the community caretaking doctrine.
A Closer Look At The Analysis Underlying Seizure Of Your Vehicle In A Non-Arrest Setting Such As A Traffic Stop
The Non-Arrest Scenario
The Court’s reasoning in Brown further centers on a driver’s retained freedom of action. Unless the police have a good reason to believe that the driver will be unable to make arrangements sufficient to prevent the vehicle from “impeding traffic or threatening public safety and convenience, there are no grounds to seize and inventory the vehicle.”
“[I]f the driver is only ticketed but cannot himself operate the car because of an expired license, impoundment of the vehicle is improper unless the driver is unable to provide for its custody or removal.”
After Brown, there is an important distinction between two different law enforcement decisions. First, is the decision to seize the car – and Second is the decision to search/inventory after the seizure.
They are different issues.
If the police make the decision to seize your vehicle, it must be based on a reasonable belief that that seizure is necessary to protect the your property, …the police from liability for that property, or the public at large being placed in danger of a hazardous condition created by the car.
In the final analysis if a driver remains in possession and control of his vehicle, (not arrested):
“justifying an impoundment as an exercise of a community caretaking function, so as to fall within that exception to the probable cause and warrant requirements of the Fourth Amendment, will be dependent upon the particular circumstances of the seizure in addition to the standardized policy or procedure.”
Even where the police have a “reason to suspect” that an arrested person might unlawfully drive the vehicle after the police leave, this factor alone no longer justifies the seizure and impoundment of a vehicle under the community caretaking function.
A Closer Look At The Analysis Underlying Seizure Of Your Vehicle In An Arrest Setting – (Such As A DUI Investigation)
The Arrest Scenario
The arrested driver scenario is a harder case for the Defendant because it is clear that the arrested individual is temporarily deprived of the immediate custody and control of their vehicle. But even when a person is placed under arrest – that fact alone – does not automatically authorize the government to seize and take custody and control of the suspect’s vehicle.
The issue is whether, as a result of police action, the person arrested is rendered unable to protect the vehicle or its contents. After the Brown case, Colorado Courts are required to apply certain factors when determining whether it is reasonable for the government to seize and then search a vehicle.
These factors include:
1.The time and location of the arrest; and
2. Proof of ownership of the vehicle; and
3. Whether another person, authorized by the arrestee can take possession of the vehicle.
After the Brown case, even where a driver has lost his or her freedom of action, unless there is a reason to believe that he or she will be unable to make arrangements sufficient to prevent the vehicle from:
“impeding traffic or threatening public safety and convenience, or that police action has rendered him unable to protect the vehicle or its contents, …. even routine policies or procedures providing for impoundment maybe insufficient to demonstrate the reasonableness of a seizure in the absence of probable cause of a crime.”
The Government must present evidence that the seizure of an arrested person’s car was necessary to protect his property, the police from liability, or the public at large from a hazardous condition.
To the contrary, the Government must articulate some reason to believe that inventorying is necessary to protect the individual’s property or the police from liability. Unless such a showing can be made, the impoundment and inventory search of a vehicle may violate the dictates of the Fourth Amendment.
The Ultimate Issue
In examining the reasons alleged by the police to support a seizure and inventory of a vehicle in an arrest setting, the ultimate issue remains whether the impoundment and subsequent inventory serve an administrative community caretaking function.
- Does this seizure of the car meet any of the factors or purposes for which a community caretaking exception has been recognized supported the impoundment of the defendant’s vehicle?
- Is there evidence that the car in question is impeding traffic or threatening public safety?
- Is the car inoperable or otherwise unable to be safely and legally removed by a licensed party?
- Was the Defendant offered the option to have the car safely left at the scene or privately towed?
Where the only justification offered by the police for seizing a car is the likelihood that the Defendant might continue to drive that vehicle and thereby endanger public safety, the initial seizure of his car still did not fall within the community caretaking exception to the probable cause and warrant requirements of the Fourth Amendment.
As the Brown Court states it:
….because the community caretaking exception can apply only to conduct that is distinct from the investigation of criminal activity, a seizure premised solely on the risk that the vehicle will be driven illegally, by a driver cited for driving on a suspended license, can never find justification as a community caretaking function.
Furthermore, the Brown court found that – merely complying with a departmental policy or procedure on seizing and inventorying vehicles – is insufficient in and of itself to bring a seizure of a vehicle within an exception to the Fourth Amendment warrant requirement. For example, as noted, seizing a vehicle to prevent the driver from continuing to drive with a suspended license does not fall within the specific community caretaking exception.
Summary And Conclusion – Colorado Criminal Law – Illegal Auto Searches &Unjustifiable Inventory Searches
The “common practice” of the seizing and inventorying vehicles by Colorado police departments may be unconstitutional. For a search and seizure to be considered reasonable within the meaning of the Fourth Amendment, it must either be authorized by a warrant supported by probable cause or it must fall within a recognized exception to those requirements.
In any specific case, unless the Government provides evidence that demonstrates that a seizure of a Defendant’s vehicle is justified as an exercise of the police community caretaking function (or is otherwise reasonable within the meaning of the Fourth Amendment), notwithstanding local laws or police policies and procedures broad enough to grant the officers discretion to impound the vehicle of a driver, an automobile can not be seized and searched. If a vehicle is impounded and subsequently inventoried in the absence of such evidence, it may directly violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Colorado Criminal Law – Illegal Auto Searches & Unjustifiable Inventory Searches
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The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2018) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (19 years).
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