United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 27, 2007 Decided June 19, 2007
No. 05-3132
UNITED STATES OF AMERICA,
APPELLEE
v.
DOUGLAS MYRON PROCTOR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00427-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued the
cause for the appellant. A. J. Kramer, Federal Public Defender,
was on brief.
Ryan W. Scott, Attorney, United States Department of
Justice, argued the cause for the appellee. Jeffrey A. Taylor,
United States Attorney, and Roy W. McLeese III, Assistant
United States Attorney, were on brief.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: A jury found
appellant Douglas Myron Proctor guilty of unlawful possession
2
of a firearm and ammunition by a felon in violation of 18 U.S.C.
§ 922(g)(1). He was sentenced to 120 months’ imprisonment
and five years’ supervised release. Proctor now appeals the
district court’s denial of his motion to suppress evidence
obtained during an inventory search of his vehicle following his
arrest for moving violations on the ground that the arresting
officers failed to follow standard police procedures when they
impounded his car and subsequently retrieved a weapon from a
trash bag found in the trunk. For the reasons set forth below, we
conclude that the district court erred in denying the motion to
suppress and reverse the district court’s judgment.
I.
At approximately 1:35 a.m. on September 8, 2004,
Metropolitan Police Department (MPD) Officer Jody Shegan,
and his partner, Officer Martin Nassar, while parked near
Spingarn High School at the corner of 26th Street and Benning
Road, Northeast, in Washington, D.C., received a radio call
informing them that a maroon 1989 Mercury Grand Marquis
traveling westbound on Benning Road had failed to stop at a red
light. After the vehicle turned onto 26th Street and passed by
Officers Shegan and Nassar, they followed it for a short distance
before noticing that it had tinted windows. The officers initiated
a traffic stop “[a]lmost immediately.” Tr. 11/23/04 at 7-8.
Proctor, the driver and sole occupant, produced his license
and registration to Officer Nassar. At that time, Nassar noticed
the odor of alcohol on Proctor’s breath. As he returned to the
squad car to check the license and registration information,
Nassar signaled to Shegan that Proctor had been drinking.
Shegan then approached Proctor and initiated a conversation
with him, during which Shegan too smelled alcohol and noticed
that Proctor’s speech was slurred. When Shegan directed
Proctor to step out of the vehicle, Proctor “swayed back and
forth and used his vehicle as a leaning post so . . . he wouldn’t
fall down.” Id. at 9. Because Proctor exhibited signs of
3
intoxication, Shegan placed him under arrest for operating a
vehicle while intoxicated (OWI) and driving under the influence
(DUI).1
After Proctor’s arrest and while he remained at the scene, the
officers conducted an inventory search of the vehicle. In the
trunk, the officers recovered a .380 semi-automatic pistol from
a “white trash bag,” Tr. 4/18/05 at 56, that also contained clothes
and Proctor’s cell phone bill. From the front passenger seat, the
officers recovered another plastic bag containing personal
documents with Proctor’s name. After waiving his Miranda
rights, Proctor informed the police that the bag belonged to him
but the gun did not. In an indictment filed September 23, 2004,
Proctor was charged with unlawful possession of a firearm and
ammunition by a felon. On October 20, 2004, he filed a motion
to suppress, challenging, inter alia, the physical evidence
recovered during the inventory search.
At the November 23, 2004 suppression hearing, Officer
Shegan, the hearing’s only witness, testified that the MPD
standard procedure required the officers to impound Proctor’s
vehicle after his arrest. Shegan, who had been a police officer
for twenty years and a member of the MPD for three years,
declared that he did not “believe [he] had a choice” in
impounding the vehicle, Tr. 11/23/04 at 38, because Proctor was
not the owner and no one else was present to take custody of it,
id. at 38, 24. Shegan further explained that the officers did not
attempt to contact the owner to retrieve the vehicle because they
“weren’t going to wait that long” and that they did not consider
parking the car nearby because the police were “still responsible
for the vehicle if it [was] parked.” Id. at 38. Pursuant to the
MPD’s “new procedure” (Shegan’s term) for any vehicle not
1
Proctor ultimately received traffic citations for running a red light
and having tinted windows in addition to the OWI and DUI charges.
Tr. 11/23/04 at 27.
4
held as evidence or for civil forfeiture, id. at 25, Shegan testified
that he requested the dispatch of a “ROC crane”—a crane
operated by a private towing company which, by contract with
the MPD, conducts towing operations for each Regional
Operations Command—to remove the vehicle to a private
impoundment lot instead of to the regional MPD station or the
MPD impoundment lot, id. at 24-25.2
Shegan also testified that the MPD procedure required the
officers to search “[t]he entire vehicle,” id. at 26, before removal
“[t]o reduce liability on the police department and to preserve
any property that the owner of the vehicle or the occupants of
the vehicle may have,” id. at 25. He explained that
[t]he old policy was if a vehicle is taken to Metropolitan
Police Department under the[] same circumstances [as
here], the passenger compartment of the vehicle would
be inventoried on the scene; and then within a certain
amount of time after that, 24, 48 hours after that, then
the entire vehicle, if the owner didn’t come and pick it
up, the entire vehicle would be inventoried. . . . That
policy is no longer in existence.
Id. at 26-27. According to Shegan, the current search policy
went into effect when “Metropolitan Police Department didn’t
have the room to store these vehicles.” Id. at 27.
In response to Shegan’s testimony, Proctor introduced into
evidence a copy of MPD General Order 602.1 which sets forth
MPD impoundment and inventory search procedure. General
Order 602.1, Automobile Searches and Inventories (May 26,
1972) (GO 602.1), reprinted in Appendix for Appellant (AA) at
32. Part I.B.3, entitled “Prisoner’s Property,” provides, “When
a person is arrested in an automobile which he owns or has been
2
Shegan testified that the “new procedure” was developed in
response to the lack of MPD impoundment space. Tr. 11/23/04 at 25.
5
authorized to use and the vehicle cannot be classified [as
evidence or for civil forfeiture], that vehicle shall be classified
as prisoner’s property.” Id. at 42. Subpart (a) of Part I.B.3
provides that a vehicle “classified as prisoner’s property shall be
disposed of in any lawful manner in which the person arrested
directs. In any case where a prisoner requests that his vehicle be
lawfully parked on a public street, he shall be required to
indicate his request in writing.” Id. Subpart (b) provides:
If a vehicle classified as prisoner’s property is disposed
of so that it is not taken to a police facility, it shall not be
inventoried in any way. If it is necessary to take such a
vehicle into police custody, the vehicle shall be taken to
a police facility or to a location in front of or near a
police facility. Immediately upon arrival at the police
facility the arresting officer shall remove from the
passenger compartment of the vehicle any personal
property which can easily be seen from outside the
vehicle and which reasonably has a value in excess of
$25. . . . No other inventory or search of the vehicle
shall be made at this time.
Id. at 43 (emphases added). And subpart (c) states:
If a person authorized by the prisoner or the prisoner
himself, upon his release, does not claim the vehicle
within 24 hours of the time that the prisoner was
arrested, a complete inventory of the contents of the
automobile shall be made by the arresting officer or an
officer designated by an official.
Id. Finally, Part I.B.6, entitled “Scope of Inventory,” provides:
Whenever an officer has a right to inventory a vehicle
pursuant to this order, the officer shall examine the
passenger compartment, the glove compartment,
whether or not locked, and the trunk, whether or not
6
locked. . . . Any container such as boxes or suitcases
found within the vehicle shall be opened . . . .
Id. at 46-47.
While noting “a conflict or something of a disparity”
between Shegan’s testimony and GO 602.1 regarding the MPD’s
impoundment and inventory search procedure, Tr. 11/23/04 at
62, the district court denied Proctor’s suppression motion. The
court explained that “it is clear . . . through the testimony of
[Officer Shegan] that th[e written] procedures have been
changed and perhaps because of financial realities or whatever
it appears that the city in the last several years has adopted
different procedures.” Id. at 63. The court found the “new
procedure”—that is, an inventory search of a vehicle classified
as “prisoner’s property” whether or not the vehicle is removed
to a police facility—“reasonable” and concluded,
I have listened to the testimony of the particular officer
and decided, based on the way he has testified and to the
content, he seems to be knowledgeable and he strikes me
as being an honest police officer with no agenda with
respect to this particular vehicle during the time span of
the events, that I find nothing that would even remotely
suggest a pretextual search in this case as a way of
getting inside the trunk of that car.
Id. at 64.
A three-day jury trial was held in April 2005. On April 20,
2005, the jury found Proctor guilty and he was sentenced on
August 8, 2005 to 120 months’ imprisonment and five years’
supervised release. This appeal followed.
II.
The Fourth Amendment to the United States Constitution
protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
7
seizures.” U.S. Const. amend. IV. “The touchstone of the
Amendment is reasonableness.” United States v. Askew, 482
F.3d 532, 538 (D.C. Cir. 2007); see also Cady v. Dombrowski,
413 U.S. 433, 439 (1973). “‘[W]hether a search and seizure is
unreasonable within the meaning of the Fourth Amendment
depends upon the facts and circumstances of each case . . . .’”
South Dakota v. Opperman, 428 U.S. 364, 375 (1976) (quoting
Cooper v. California, 386 U.S. 58, 59 (1967)) (alterations in
original). Automobiles “are ‘effects’ and thus within the reach
of the Fourth Amendment.” Opperman, 428 U.S. at 367. “Both
the decision to take [a] car into custody and [a] concomitant
inventory search must meet the [Amendment’s] strictures.”
United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996); see
also Colorado v. Bertine, 479 U.S. 367, 374-76 (1987);
Opperman, 428 U.S. at 368-70. Thus, “the decision to impound
(the ‘seizure’) is properly analyzed as distinct from the decision
to inventory (the ‘search’).” Duguay, 93 F.3d at 351.
Proctor argues that both the impoundment and subsequent
search of his vehicle violated the Fourth Amendment because
the officers failed to follow the MPD’s standard impoundment
and inventory search procedure detailed in GO 602.1. Although
he does not dispute that adherence to unwritten standard police
procedure can satisfy the Fourth Amendment, he contends that
Shegan’s testimony failed to establish that the “new”—and
unwritten—MPD procedure had in fact modified GO 602.1. In
analyzing Proctor’s Fourth Amendment challenge, we review
the district court’s factual findings for clear error, giving “‘due
weight to inferences drawn from those facts,’” United States v.
Goree, 365 F.3d 1086, 1090 (D.C. Cir. 2004) (quoting Ornelas
v. United States, 517 U.S. 690, 699 (1996)), and we review de
novo whether the officers’ actions were reasonable, cf. United
States v. Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (“We
decide de novo whether the police had reasonable suspicion,
reasonable fear, and probable cause.”).
8
A seizure—including by impoundment—conducted without
a search warrant is “per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and
well delineated exceptions.” Minnesota v. Dickerson, 508 U.S.
366, 372 (1993). One exception is the “community caretaking”
exception. See United States v. Coccia, 446 F.3d 233, 238 (1st
Cir. 2006); Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th
Cir. 2005). As the Supreme Court observed in Opperman, “In
the interests of public safety and as part of what the Court has
called ‘community caretaking functions,’ automobiles are
frequently taken into police custody.” 428 U.S. at 368 (citing
Cady, 413 U.S. at 441). Indeed, “[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. at 369. The Supreme Court has suggested that a reasonable,
standard police procedure must govern the decision to impound.
Bertine, 479 U.S. at 375-76. In Bertine, the defendant
challenged the inventory search of his vehicle because the police
officers had discretion to choose between impounding the
vehicle or parking it in a public place. The Court declared,
“Nothing in Opperman or [Illinois v. Lafayette, 462 U.S. 640
(1983)] prohibits 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 (emphasis added).
At least two of our sister circuits have held that the decision
to impound must be made pursuant to a standard procedure. See
United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004)
(“Some degree of ‘standardized criteria’ or ‘established routine’
must regulate [impoundments]” but “an impoundment policy
may allow some ‘latitude’ and ‘exercise of judgment’ by a
police officer when those decisions are based on concerns
related to the purposes of an impoundment.”); Duguay, 93 F.3d
at 351 (“‘[S]tandardized criteria or established routine must
regulate’ inventory searches. Among those criteria which must
9
be standardized are the circumstances in which a car may be
impounded.” (internal citation omitted) (alteration in original)).
On the other hand, the First Circuit has concluded that the
Supreme Court’s Bertine holding does not require that an
impoundment be governed by standard police procedure. See,
e.g., Coccia, 446 F.3d at 238 (“[W]e do not understand Bertine
to mean that an impoundment decision made without the
existence of standard procedures is per se unconstitutional.
Rather, we read Bertine to indicate that an impoundment
decision made pursuant to standardized procedures will most
likely, although not necessarily always, satisfy the Fourth
Amendment.”). The Coccia court explained:
“Virtually by definition, the need for police to function
as community caretakers arises fortuitously, when
unexpected circumstances present some transient hazard
which must be dealt with on the spot. The police cannot
sensibly be expected to have developed, in advance,
standard protocols running the entire gamut of possible
eventualities. Rather, they must be free to follow ‘sound
police procedure,’ that is to choose freely among the
available options, so long as the option chosen is within
the universe of reasonable choices.”
Coccia, 446 F.3d at 239 (quoting United States v. Rodriguez-
Morales, 929 F.2d 780, 787 (1st Cir. 1991)). The Government
invites us to adopt the First Circuit’s conclusion that an
impoundment is reasonable so long as it “serves the
10
government’s ‘community caretaking’ interests.’”3 Appellee’s
Br. at 48. We decline the invitation.
We believe that if a standard impoundment procedure exists,
a police officer’s failure to adhere thereto is unreasonable and
violates the Fourth Amendment. Cf. United States v. Maple, 348
F.3d 260, 263-64 (D.C. Cir. 2003) (search of vehicle relocated
by police after traffic arrest unreasonable because contrary to
GO 602.1). GO 602.1 provides that a vehicle “classified as
prisoner’s property shall be disposed of in any lawful manner in
which the person arrested directs.” GO 602.1, AA at 42
(emphasis added).4 Thus, before impounding the vehicle, an
3
In United States v. Reese, 561 F.2d 894 (D.C. Cir. 1977), we
suggested—prior to Bertine—that the decision to impound be
reasonable. Id. at 903 n.17 (“The officers acted in a completely
reasonable manner in moving the car to the police station, impounding
it and conducting an inventory search.”). It appears that we have not
addressed the issue again until now.
4
Because Proctor was charged with OWI and DUI, we believe the
officers were also required to follow the impoundment procedures set
forth in the Comprehensive Anti-Drunk Driving Amendments Act of
1991, D.C. Code § 50-2201.05(c-1) (Anti-Drunk Driving Act or Act).
Indeed, both parties agreed that the Act rendered GO 602.1’s
impoundment procedures obsolete as applied to DUI and OWI arrests.
See Appellee’s Br. at 39 (“The Act rendered Part I.B.3(a) of General
Order 602.1 obsolete as applied to DUI and OWI arrests.”); Reply Br.
at 9 (“To the extent the Act is more restrictive than the General Order
in limiting the options to impoundment of vehicles relating to DUI or
OWI arrests, the statute trumps the General Order.”). The Act requires
that, before impounding the vehicle, the officer allow the OWI or DUI
arrestee to authorize the officer to release the vehicle to a
licensed—and capable—driver who can take possession of it within
a reasonable amount of time. See D.C. Code § 50-2201.05(c-1)(2)(C)
(“The officer shall not cause the vehicle to be impounded if . . . (C)
[t]he arrested person authorizes the officer to release the vehicle” to
11
officer should provide the arrestee with the opportunity to
arrange for its removal. See Hill v. United States, 512 A.2d 269,
274 n.10 (D.C. 1986) (“As ‘prisoner’s property’ [under GO
602.1] . . . a vehicle cannot be impounded without first giving
the prisoner an opportunity to make other lawful arrangements
for its disposition.”); Arrington v. United States, 382 A.2d 14,
18 (D.C. 1978) (“[P]olice are authorized to impound a motor
vehicle as prisoner property [under GO 602.1] only where the
prisoner consents thereto or is incapable of making other
arrangements for its disposition.”). Proctor, however, was
afforded no such opportunity. On the contrary, Shegan testified
that the officers were required to impound Proctor’s vehicle
because no one was present to remove it, see Tr. 11/23/04 at 24,
Proctor was not the owner and they “weren’t going to wait” for
the owner to remove it, id. at 38; see also id. (“I don’t believe I
had a choice.”). Accordingly, the officers’ impoundment
(seizure) decision violated GO 602.1.
The officers’ impoundment decision led to an inventory
search that also violated GO 602.1. As noted earlier, Shegan
testified that due to a lack of impoundment space at MPD
facilities, MPD’s “new procedure” necessitated that a ROC
crane tow Proctor’s vehicle to a private impoundment lot rather
a licensed individual not at the scene of the arrest who is physically
capable of removing the vehicle in “a reasonable period of time.”)
(emphasis added). At oral argument, the Government maintained that
the burden is on the arrestee in the first instance to request that the
vehicle be released to another. But to require an allegedly intoxicated
driver to understand that he can avoid impoundment by authorizing
the officer to allow another driver to remove the vehicle—without
being so advised by the officer—is unrealistic if not unreasonable. If
no licensed—and capable—driver can take possession of the vehicle
within a reasonable amount of time, or if the arrestee is incapable of
making the request, the Anti-Drunk Driving Act requires the officer
to impound the vehicle. Id.
12
than to an MPD facility. Id. at 24-25, 52-53. According to
Shegan, the officers were thus required to search “[t]he entire
vehicle” before it was towed, id. at 26, “[t]o reduce liability on
the police department and to preserve any property that the
owner of the vehicle or the occupants of the vehicle may have,”
id. at 25. GO 602.1, however, expressly prohibits an inventory
search of a vehicle not taken to an MPD impoundment lot. GO
602.1, AA at 43 (“If a vehicle classified as prisoner’s property
is disposed of so that it is not taken to a police facility, it shall
not be inventoried in any way.”).5
The Fourth Amendment requires, again, that an inventory
search be reasonable and, if a standard procedure for conducting
an inventory search is in effect, it must be followed. See Maple,
348 F.3d at 264-65 (“[T]he reasonableness of the officer’s
conduct is to be determined by reference to whether he followed
the MPD’s procedures.”); see also Bertine, 479 U.S. at 374 n.6
(“Our decisions have always adhered to the requirement that
inventories be conducted according to standardized criteria.”).
Adherence to a standard procedure ensures that an inventory
search is “not . . . a ruse for a general rummaging in order to
discover incriminating evidence.” Florida v. Wells, 495 U.S. 1,
4 (1990). The district court concluded, erroneously, that the
inventory search of Proctor’s vehicle satisfied the Fourth
Amendment based on Shegan’s testimony that necessity had
5
Had the vehicle been towed to an MPD facility, the arresting
officer would have been required “[i]mmediately upon arrival” to
remove from the passenger compartment of the vehicle any personal
property “easily . . . seen from outside the vehicle” and “reasonably
ha[ving] a value in excess of $25.” GO 602.1, AA at 43. No further
search of the vehicle is permitted unless “a person authorized by the
prisoner or the prisoner himself . . . [fails to] claim the vehicle within
24 hours of the time that the prisoner was arrested.” Id. In that case,
an officer is required to make “a complete inventory of the contents of
the automobile.” Id.
13
forced an unwritten MPD modification to GO 602.1 to allow an
inventory search before a vehicle is towed to a private
impoundment lot. Tr. 11/23/04 at 63-64. There is plainly
insufficient support on this record, however, to conclude that the
MPD is no longer bound by GO 602.1.6 More than a single
officer’s ad hoc description of a new practice is required to
decide that a thirty-year-old inventory search procedure—in
writing—has been altered by “necessity.”
Because the officers failed to follow the MPD standard
procedure, the impoundment of Proctor’s vehicle was
unreasonable and thus violated the Fourth Amendment.
Likewise, “if the seizure of the car was unconstitutional, the
materials later recovered during the inventory search [are]
excluded.” Coccia, 446 F.3d at 237 n.5 (citing Duguay, 93 F.3d
at 351). Accordingly, Proctor’s motion to suppress should have
been granted.
For the foregoing reasons, the judgment of the district court
is reversed.
So ordered.
6
In fact, MPD Special Order (SO) 03-14, entitled “Implementation
of Centralized Towing Program,” a copy of which Proctor submitted
pursuant to Federal Rule of Appellate Procedure 28(j), indicates that
GO 602.1 remains in effect. SO 03-14 provides, “Except as may be
modified by the provisions of this Special Order, the applicable
provisions of the following directives shall continue to be followed:
. . . 4. General Order SPT—602.1 (Automobile Searches and
Inventories).” SO 03-14, Implementation of Centralized Towing
Program, at 4 (June 15, 2003). SO 03-14 did not modify GO 602.1.