United States v. Sandos

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 22 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 03-4037
v. (D.C. No. 02-CR-377-PGC)
(D. Utah)
TROY ANTHONY SANDOS,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **

Mr. Sandos appeals from the district court’s denial of his motion to

suppress, arguing that the impoundment of his vehicle violated the Fourth

Amendment and a firearm discovered as a result of an inventory search should

have been suppressed. Our jurisdiction arises under 28 U.S.C. § 1291 and we

affirm.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
 Background

Mr. Sandos was charged with possession of a firearm by a convicted felon

(Count I), and possession of ammunition by a convicted felon (Count II), both in

violation of 18 U.S.C. § 922(g)(1). I R. Doc. 1. After the district court denied

his motion to suppress (Id. Docs. 16 & 21), Mr. Sandos entered a conditional plea

of guilty to Count I of the indictment, preserving his right to appeal the district

court’s ruling on his motion to suppress. Id. Doc. 24. The district court

sentenced him to 37 months imprisonment, to be followed by a term of 36 months

of supervised release, and dismissed Count II of the indictment. Id. Doc. 29.

On April 17, 2002, at approximately 11:00 p.m., police officers Casey

Heaton and James Troy McCombe responded to a third-party’s home in Murray,

Utah, on a complaint that a stranger, later determined to be Mr. Sandos, had

entered the home uninvited. II R. at 20-22. The officers believed Mr. Sandos to

be under the influence of alcohol or drugs.

The officers learned that a warrant with a $75,000 bond requirement was

outstanding for Mr. Sandos. Id. at 22-23. He was taken into custody and placed

in the patrol car. Mr. Sandos’s vehicle was parked in the driveway of the

residence. Id. at 18. The officers impounded the vehicle because it was parked in

the complainant’s driveway and because Mr. Sandos was impaired by alcohol and

being taken into custody. Id. at 25.

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 Officer McCombe testified at the suppression hearing that the Murray City

Police Department had an impound policy, that he was familiar with the policy,

and that he impounded Mr. Sandos’s vehicle pursuant to the policy. II R. at 26.

Section 735(I)(B) of the impound policy states that a vehicle should be

impounded “[w]hen the driver or owner is injured, dead, or arrested and cannot

personally care for the vehicle, or have some responsible person take custody of it

for him.” I Supp. R. at 2.

Mr. Sandos was not asked whether he had some responsible person who

could have taken custody of his vehicle (II R. at 26), nor were the residence

owners asked if they wanted Mr. Sandos’s vehicle removed (Id. at 32). Mr.

Sandos lived 2.1 miles from the residence where his car was parked. Id. at 29.

After Mr. Sandos was arrested, Officer Heaton inventoried his vehicle, finding a

firearm and ammunition. I R. Doc 1.

At the suppression hearing, Mr. Sandos argued that, by impounding his

vehicle without first inquiring into whether another responsible person could

assume custody of the vehicle on his behalf, the officers violated their own

impoundment policy. Mr. Sandos reasoned that, in light of this alleged policy

violation, the inventory search conducted pursuant to the impoundment was

unlawful and unreasonable. II R. at 47-54. Those same contentions are raised on

appeal.

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 The district court denied the motion to suppress, concluding that the

officers had not violated the impoundment policy and that the search was

otherwise reasonable under the Fourth Amendment. The court acknowledged that

the policy authorizes impoundment only where there is no “responsible person”

available to take custody of the vehicle on the arrestee’s behalf. Nevertheless, the

court explained that the policy gives police officers broad discretion to decide, on

a case-by-case basis, how much effort to devote to finding such a person. Id. at

61-65.

The court then explained that impoundment was warranted in this case

because Sandos was alone and under arrest (Id. at 62), had already provided false

statements to the police (Id. at 63), was intoxicated to the point that he could not

be expected to provide reliable information regarding the availability of an

alternate driver (Id. at 61), and had parked his vehicle in the driveway of a private

residence, blocking access to the road (Id. at 63-64). According to the court,

those factors–combined with the fact that the entire event transpired late at night

and had already caused significant inconvenience to the complainants–obviated

any need for the officer to take additional steps before impounding the vehicle.

Id. at 62.

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 Discussion

In reviewing the district court’s denial of a motion to suppress, we examine

the court’s findings of fact for clear error, viewing all facts in the light most

favorable to the government, but will review de novo questions of law and the

reasonableness of the search. United States v. Marquez, 337 F.3d 1203, 1207

(10th Cir. 2003).

The Supreme Court has held that inventory searches are a “well-defined

exception to the warrant requirement of the Fourth Amendment.” Colorado v.

Bertine, 479 U.S. 367, 371 (1987). Inventory searches pursuant to lawful

impounds are permitted for the purpose of protecting the owner’s property,

protecting the police against claims of lost or stolen property, and protecting the

police from potential danger. South Dakota v. Opperman, 428 U.S. 364, 369

(1976); United States v. Haro-Salcedo, 107 F.3d 769, 772 (10th Cir. 1997).

However, impounds “cannot be used to justify the automatic inventory of every

car upon the arrest of its owner.” United States v. Pappas, 735 F.2d 1232, 1234

(10th Cir. 1984). Thus, in order for an impound and inventory of a vehicle to be

reasonable under the Fourth Amendment, it must be conducted pursuant to

standardized police procedures. Opperman, 482 U.S. at 372; Illinois v. Lafayette,

462 U.S. 640, 648 (1983).

The officers impounded Mr. Sandos’s vehicle pursuant to standardized

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police procedures. Mr. Sandos concedes that the impoundment policy requires

only that the policy “take reasonable steps to determine that there is not another

responsible person to take custody of the vehicle.” Aplt. Br. at 13 (emphasis

added). The steps taken by the officers were reasonable under the circumstances,

and were therefore consistent with departmental policy. While it may be true, as

Mr. Sandos argues, that it would have taken only five minutes for the officers to

confirm whether Mr. Sandos could make arrangements for someone to take

custody of his vehicle, the mere fact that alternatives to impoundment may have

existed does not make the impoundment per se unreasonable. See Bertine, 479

U.S. at 374.

Whether an impoundment is reasonable is highly dependent on the facts

considered as a whole. See United States v. Kornegay, 885 F.2d 713, 716 (10th

Cir. 1989). Mr. Sandos relies upon United States v. Ibarra, 955 F.2d 1405, 1409

(10th Cir. 1992), and Pappas, 735 F.2d at 1234, as supporting his position that the

police must allow a defendant to explore alternatives to impoundment, i.e. finding

another to take custody of the vehicle. But Ibarra and Pappas involved very

different factual findings by the district court that were upheld on appeal, and did

not involve the type of highly unusual behavior exhibited by this defendant. In

addition to the behavior, the vehicle was parked in a private driveway without

permission. On balance, in view of the district court’s factual findings, its

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determination of Fourth Amendment reasonableness is not in error.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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