United States v. Christopher Duguay

KANNE, Circuit Judge,

dissenting in part and concurring in part.

In weighing the testimony of the Alton police detectives, the majority notes what are described as “inconsistencies” and thus determines that the Alton police did not have a standard policy with regard to the impoundment of vehicles. Supra at 352. I disagree.

The backdrop for the quoted testimony concerned the existence of the department’s impoundment policy when the owner of a vehicle is not present and the person in control of the vehicle is taken into custody. At the suppression hearing, Detective Adams testified:

[1]f a person is arrested in a vehicle, we tow the vehicle.

And Detective Waldrup testified:

[W]e always inventory and tow vehicles after the person in control of the vehicle or the owner is arrested.

Finally, at trial, Detective Waldrup stated:

Any time a person is arrested, taken from the vehicle or out of the vehicle where they do not have control over it, we inventory and tow the vehicle.

Rather than being inconsistent, a realistic reading of this testimony, placed in context, discloses that the Alton police have a standard policy that if the person in control of a vehicle is arrested and taken into custody, *355that vehicle is impounded and an inventory search conducted. It certainly does not seem to me to have been error for the long-tenured district judge — who observed the detectives testify — to have made such a determination.

The Supreme Court in Ornelas v. United States, — U.S.-,-, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), directs that “a reviewing court should take care both to review findings of historical fact only for-clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” While briefly mentioned by the majority, I do not believe this admonition by the Supreme Court played a part in the majority’s analysis of the existence of a standard impoundment policy.

Turning to the validity of the impoundment of the vehicle controlled by Duguay, it is not my view that the Alton police detectives were (as the majority suggests) “making up new police obligations after the fact where none existed before.” Supra at 352. This is a clear indication-although unstated— that the majority believes the impoundment of the car over which Duguay had control to be pretextual. Again, I see no reason to discount the district judge’s contrary credibility determination. More significantly, however, the issue is not a question of pretext but whether the impoundment was objectively reasonable under the circumstances.

Like the district judge, I find that the situation with which the detectives were confronted was sufficient to establish a reasonable and constitutionally correct basis for impounding Duguay’s vehicle, to-wit: prevent it from being vandalized or stolen.

We, along with other courts of appeals, have determined that the police may lawfully impound automobiles when doing so accords with established procedures and is necessary either to remove the automobile from a public way or to protect the automobile or its contents from theft or vandalism. See, e.g., United States v. Ramos-Morales, 981 F.2d 625, 627 (1st Cir.1992); Cobbler v. Superintendent, 528 F.2d 1142, 1145-46 (4th Cir.1975); United States v. Staller, 616 F.2d 1284, 1290 (5th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980); United States v. Balanow, 528 F.2d 923, 924 (7th Cir.1976); United States v. Agofsky, 20 F.3d 866, 872-73 (8th Cir.1994); United States v. Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992). We recognized in Griffin that a police department’s unique province as a caretaker of the public interest affords it some degree of latitude in determining whether impoundment is appropriate. 729 F.2d at 480 (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976)).

In this ease, the officers were faced with the choice of abandoning the car in a high crime area (with the attendant consequences) or impounding it for safekeeping. It seems quite reasonable for the Alton police to have opted for impoundment where the owner is absent and the person asserting control is under arrest. The police were certainly not required to turn the car over to bystanders Coles or Vaughn. The most prudent and constitutionally valid course, under the situation which presented itself to the detectives, was the one taken.

I therefore dissent as to Count I, and I concur with the result in Count III.