1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: October 2, 2017
4 NO. A-1-CA-34951
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellant,
7 v.
8 LARRY BYROM,
9 Defendant-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
11 John A. Dean, Jr., District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 Kenneth H. Stalter, Assistant Attorney General
15 Albuquerque, NM
16 for Appellant
17 Arlon L. Stoker
18 Farmington, NM
19 for Appellee
1 OPINION
2 FRENCH, Judge.
3 {1} The State appeals from the district court’s order granting Defendant Larry
4 Byrom’s motion to suppress evidence discovered in Defendant’s vehicle during a
5 warrantless search by a police officer. The district court suppressed the evidence on
6 the ground that the community caretaker exception to the Fourth Amendment’s
7 warrant requirement of the United States and the New Mexico Constitution was not
8 applicable because (1) Defendant was not arrested before the officer decided to
9 impound and inventory Defendant’s vehicle, and (2) there was no evidence that the
10 parking lot where Defendant’s vehicle was located posed particular safety concerns
11 or subjected the vehicle to the risk of theft or vandalism. We reverse the district
12 court’s decision to suppress the evidence because the applicability of the community
13 caretaker exception does not depend on the existence of an arrest or on the
14 presentation of evidence specifically showing unsafe conditions or the potential for
15 loss or damage.
16 BACKGROUND
17 {2} The facts are taken from the testimony at the suppression hearing held on June
18 11, 2015, unless otherwise noted. New Mexico State Police Sergeant James R.
19 Foreman responded to a call from dispatch on February 2, 2015 around 3:30 p.m.
1 concerning a man “slumped over the steering wheel” of his vehicle in the parking lot
2 of Dino’s Mini-Mart in Farmington, New Mexico. The call was an “EMS
3 assist”—when emergency medical services are requested, law enforcement officials
4 often assist for safety purposes. Sergeant Foreman arrived before the medics and
5 found the vehicle properly parked in a parking space in front of the store. Sergeant
6 Foreman approached the vehicle from the driver’s side. The window was rolled down,
7 and he observed the driver (Defendant) “slumped over.” Sergeant Foreman said he
8 was unable to determine “if he was sleeping, passed out, . . . unconscious.”
9 Defendant “was sitting there in an unresponsive state.” Sergeant Foreman reached
10 into the vehicle through the window and “shook” Defendant. Defendant then sat up,
11 put his hands to his face, and said “I can’t see. My eyes are on fire.” Sergeant
12 Foreman said that he was not sure what to do next but that he knew emergency
13 medical services were on the way, so he told Defendant to remain seated and wait for
14 the medics to arrive. Sergeant Foreman then asked Defendant if he had taken
15 narcotics, “because it’s standard questioning to find out what type of medical services
16 a person needs when [law enforcement] make[s] contact with them.” Defendant
17 answered negatively, and Sergeant Foreman asked to see Defendant’s eyes. Sergeant
18 Foreman said that Defendant’s eyes were “pin-pointed” and that he “didn’t do much
19 ’til the medics got there” in order to “let them do their evaluation.”
2
1 {3} Medics arrived a few minutes later, and, according to the district court’s
2 findings of fact, “[Sergeant] Foreman decided, in conjunction with the advice of the
3 EMTs on the scene,” that Defendant should be taken to the emergency room. While
4 escorting Defendant from his vehicle to an ambulance, Sergeant Foreman told
5 Defendant, “You go to the ER with the medics. I will take care of your vehicle, then
6 I will meet you at the ER.” The district court found that “Defendant can be heard to
7 respond ‘Okay’ and then say something which is inaudible.” Defendant did not
8 instruct Sergeant Foreman about how to care for his vehicle, which turned out to be
9 rented, and Sergeant Foreman noted that Defendant appeared to be alone, without
10 anyone accompanying him. Sergeant Foreman then decided to have the vehicle towed
11 because, according to his testimony, police policy required that he do so. Sergeant
12 Foreman added that he was not allowed to simply lock the car and leave the rented
13 vehicle in the parking lot when no other person was present to take possession of it.
14 He testified that police policies require officers conducting inventory searches of
15 vehicles to complete a tow authorization form listing all items worth more than $25.
16 Sergeant Foreman further testified that the reason he decided to have the vehicle
17 towed was “for the protection of myself and for the person who was responsible for
18 the vehicle . . . we do it to protect ourselves from anyone saying that . . . there was
19 $500 in that purse and now there’s not.”
3
1 {4} Prior to the arrival of the tow truck, Sergeant Foreman inventoried the vehicle
2 and its contents. Sergeant Foreman found a closed backpack in the backseat and,
3 upon opening it, discovered drugs and drug paraphernalia. Defendant was discharged
4 from the hospital later the same day and was then arrested as a result of an arrest
5 warrant based upon the drugs Sergeant Foreman discovered in Defendant’s vehicle.
6 {5} Defendant was charged with trafficking a controlled substance, contrary to
7 NMSA 1978, Section 30-31-20 (2006), and distribution of marijuana, contrary to
8 NMSA 1978, Section 30-31-22(A)(1)(a) (2011). Defendant moved to suppress all of
9 the items seized during the course of Sergeant Foreman’s inventory search of
10 Defendant’s vehicle, challenging Sergeant Foreman’s authority to impound
11 Defendant’s vehicle. Defendant argued that an officer has statutory authority to tow
12 a vehicle if: (1) the vehicle was involved in an accident; (2) the vehicle is evidence
13 of a criminal offense; or (3) the vehicle was abandoned on or adjacent to a roadway.
14 Defendant also argued that none of the exceptions to the Fourth Amendment’s
15 warrant requirement applied: Sergeant Foreman did not arrest Defendant, so the
16 search cannot be justified as a search incident to arrest; there existed no exigencies
17 requiring Sergeant Foreman to search the vehicle in order to preserve a life or prevent
18 serious damage to property; Defendant did not consent to the search; and nothing in
4
1 plain view in the vehicle gave rise to Sergeant Foreman’s perceived need to search
2 the vehicle.
3 {6} In response to the motion, the State argued that the warrantless search of
4 Defendant’s vehicle was reasonable under the community caretaker exception, citing
5 two New Mexico cases—State v. Shaw, 1993-NMCA-016, 115 N.M. 174, 848 P.2d
6 1101, and State v. Ruffino, 1980-NMSC-072, 94 N.M. 500, 612 P.2d
7 1311—discussing the impoundment and inventory doctrine of the community
8 caretaker exception. Following the suppression hearing, the district court allowed the
9 parties to submit additional briefs. Defendant’s supplemental brief maintained that
10 Sergeant Foreman’s decision to impound the vehicle cannot be justified under the
11 community caretaker exception because an officer responding to an emergency
12 assistance call must have a reasonable basis to associate the emergency with the
13 location searched. Once medics removed Defendant from the vehicle, Sergeant
14 Foreman could not possibly have needed to search the vehicle in order to aid in the
15 emergency response. The State’s supplemental brief maintained that during each
16 stage of an encounter, an officer’s actions must be justified. The initial encounter was
17 “justified by the community caretaking doctrine[,]” and the justification for the
18 decision to tow and search Defendant’s vehicle after Defendant went to the hospital
19 “is based on the inventory exception to the warrant requirement.”
5
1 {7} The district court entered a written order granting Defendant’s motion to
2 suppress. In the order, the district court stated that Sergeant Foreman did not lawfully
3 acquire custody and control of the vehicle prior to conducting the inventory search.
4 The court noted, “[t]aking custody and control of a person’s vehicle is not automatic
5 in all circumstances where the officer is responsible for separating a person from his
6 or her vehicle.” The district court concluded that absent an arrest, the inventory
7 search was improper. Furthermore, without evidence showing that leaving the vehicle
8 in the parking lot subjects it to specific safety concerns, “[t]he community caretaking
9 doctrine also does not, in this case, make the warrantless seizure of . . . Defendant’s
10 car lawful under the Fourth Amendment.”
11 {8} The State timely appealed. The State argues that Sergeant Foreman acted as a
12 community caretaker by responding to the call from dispatch and that his subsequent
13 decision to impound the vehicle was justified by the impoundment and inventory
14 doctrine of the community caretaker exception. Defendant maintains that the
15 emergency aid doctrine of the community caretaker exception applies and does not
16 justify Sergeant Foreman’s decision to impound and inventory Defendant’s vehicle.
17 We begin with a review of the community caretaker exception to the Fourth
18 Amendment and the doctrines it encompasses—the emergency aid doctrine, the
19 impoundment and inventory doctrine, and the public servant doctrine. We detail the
6
1 differing tests of the two doctrines at issue, determine the doctrine under which the
2 facts of the present case must be analyzed, and apply the appropriate test.
3 STANDARD OF REVIEW
4 {9} “Appellate courts review a district court’s decision to suppress evidence based
5 on the legality of a search as a mixed question of fact and law.” State v. Ryon, 2005-
6 NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032. “We view the facts in the light most
7 favorable to the prevailing party and defer to the district court’s findings of historical
8 facts and witness credibility when supported by substantial evidence.” Id. “The
9 legality of a search, however, ultimately turns on the question of reasonableness.” Id.
10 “Although our inquiry is necessarily fact-based it compels a careful balancing of
11 constitutional values, which extends beyond fact-finding, to shape the parameters of
12 police conduct by placing the constitutional requirement of reasonableness in factual
13 context[.]” Id. (internal quotation marks and citation omitted). “We thus review the
14 determination of reasonableness de novo.” Id. Given the arguments and decision
15 below, our analysis necessarily begins with a review of the community caretaker
16 exception.
17 DISCUSSION
18 {10} The community caretaker exception to the Fourth Amendment developed from
19 the understanding that police officers frequently interact with citizens without an
7
1 investigative purpose. Police have “dual roles,” acting as criminal investigators and
2 as community caretakers. Id. ¶ 13. The caretaking function is “totally divorced from
3 the detection, investigation, or acquisition of evidence relating to the violation of a
4 criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). When police
5 engage in conduct unrelated to crime-solving, officers need not possess warrants,
6 probable cause, or reasonable suspicion. Ryon, 2005-NMSC-005, ¶ 24. However,
7 reasonableness remains the touchstone of the Fourth Amendment. To evaluate the
8 reasonableness of a warrantless search or seizure based on community caretaking, we
9 must balance “the public need and interest furthered by the police conduct against the
10 degree of and nature of the intrusion upon the privacy of the citizen.” Id. (internal
11 quotation marks and citation omitted).
12 {11} From this balancing of interests, three separate doctrines within the community
13 caretaker exception have been developed—the emergency aid doctrine, the
14 impoundment and inventory doctrine, and the public servant doctrine. Id. ¶ 25
15 (“[D]efining the community caretaker exception as ‘broad’ and encompassing three
16 versions, each requiring a different test[.]” (citing Mary E. Naumann, Note, The
17 Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am.
18 J. Crim. L. 325, 330-31 (1999))). Each doctrine stems from the basic premise
19 underlying the community caretaker exception—an officer’s interaction with a citizen
8
1 in need is motivated by a desire to aid, not investigate. Ryon, 2005-NMSC-005, ¶ 25.
2 But, importantly, “it does not follow that all searches resulting from such activities
3 should be judged by the same standard.” Id. (internal quotation marks and citation
4 omitted). We have adopted different tests for assessing the reasonableness of the
5 officer’s conduct based on the particular doctrine at issue.
6 {12} The State argues that the facts of this case must be analyzed under the
7 impoundment and inventory doctrine, and not the emergency aid doctrine, as
8 Defendant contends. We outline the tests of each doctrine as set forth in several New
9 Mexico cases and conclude that the facts of this case call for analysis under the
10 impoundment and inventory doctrine.
11 {13} Under the emergency aid doctrine, the State has the burden of establishing the
12 following three-part test:
13 First, the police must have reasonable grounds to believe that there is an
14 emergency at hand and an immediate need for their assistance for the
15 protection of life or property. Second, the search must not be primarily
16 motivated by intent to arrest and seize evidence. Third, there must be
17 some reasonable basis, approximating probable cause, to associate the
18 emergency with the area or place to be searched.
19 Id. ¶ 29 (alterations, internal quotation marks, and citations omitted). Typically, the
20 application of the emergency aid doctrine is limited to situations where an officer acts
21 to protect or preserve a citizen’s life, or acts to avoid serious injury. Id. ¶ 26. In New
22 Mexico, we have exclusively applied the emergency aid doctrine to intrusions into
9
1 the home. See id. ¶ 44 (concluding that entry into a home was unreasonable under the
2 emergency aid doctrine where an officer responded to several calls from dispatch
3 referring to a victim of a stabbing and other persons with possible head injuries);
4 State v. Gutierrez, 2005-NMCA-015, ¶ 14, 136 N.M. 779, 105 P.3d 332 (holding the
5 search of pants pockets at a hospital was unreasonable under the emergency aid
6 doctrine where an officer first encountered the defendant on the floor of the
7 defendant’s house in response to a call concerning a possible overdose); State v.
8 Nemeth, 2001-NMCA-029, ¶¶ 32-36, 40, 130 N.M. 261, 23 P.3d 936 (determining
9 that entry into a home in response to a possible suicide call was reasonable under the
10 emergency aid doctrine), overruled on other grounds by Ryon, 2005-NMSC-005,
11 ¶ 28. “The emergency [aid] doctrine applies to, but is not limited to, warrantless
12 intrusions into personal residences.” Ryon, 2005-NMSC-005 ¶ 26 (internal quotation
13 marks and citation omitted).
14 {14} The impoundment and inventory doctrine has, under our cases, been applied
15 to searches of vehicles and other personal items. To be valid under the impoundment
16 and inventory doctrine, the seizure and search of the item must meet a three-part test,
17 different from that required by the emergency aid doctrine. First, the vehicle must be
18 in police custody and control. Ruffino, 1980-NMSC-072, ¶ 5. More specifically, the
19 police must lawfully have custody and control of the item. Id. Police custody must be
10
1 based on “some legal ground” with “some nexus between the arrest and the reason for
2 the impounding.” Id. Second, the officer must conduct the inventory search “pursuant
3 to established police regulations.” Id. These regulations may proscribe the limits of
4 the search, but they have no bearing on the reasonableness of the search itself. Id.
5 Finally, the search must be reasonable and will be upheld if made “in furtherance of
6 any one of three purposes: (1) to protect the arrestee’s property while it remains in
7 police custody; (2) to protect the police against claims or disputes over lost or stolen
8 property; or (3) to protect the police from potential danger.” Shaw, 1993-NMCA-016,
9 ¶ 10. Many of the cases applying the impoundment and inventory doctrine involve
10 automobiles, and in all of them, officers arrested the defendant prior to gaining
11 custody of the items and subsequently searching them. See State v. Boswell, 1991-
12 NMSC-004, ¶ 2, 111 N.M. 240, 804 P.2d 1059 (describing arrest prior to the search
13 of the arrestee’s wallet); State v. Williams, 1982-NMSC-041, ¶ 2, 97 N.M. 634, 642
14 P.2d 1093 (describing arrest prior to the search of the arrestee’s vehicle); Ruffino,
15 1980-NMSC-072, ¶ 2 (describing arrest prior to the search of the arrestee’s vehicle);
16 Shaw, 1993-NMCA-016, ¶¶ 2, 3 (describing the search of a wallet and a cigarette
17 pack during the arrestee’s booking into the detention center).
18 {15} We evaluate the constitutionality of the search of Defendant’s vehicle in the
19 present case using the impoundment and inventory doctrine of the community
11
1 caretaker exception, rather than the emergency aid doctrine for the following reason.
2 Generally, entry into a home in response to an emergency assistance call triggers
3 application of the emergency aid doctrine, and an arrest preceding the search and
4 seizure of the arrestee’s possessions triggers application of the impoundment and
5 inventory doctrine. In the present case, Defendant and the State agreed at the
6 suppression hearing that the contact between Sergeant Foreman and Defendant
7 occurred as a result of the officer responding to an emergency assistance call. The
8 initial encounter was, therefore, premised on the provision of emergency care. As the
9 district court observed, “[Sergeant] Foreman acted in his community caretaking
10 capacity when he decided . . . Defendant should be taken to the hospital. The
11 warrantless seizure of . . . Defendant’s person was therefore constitutionally valid
12 under the Fourth Amendment because community caretaking is a recognized
13 exception to the warrant requirement.” At issue is the officer’s conduct following the
14 initial encounter, specifically Sergeant Foreman’s decision to impound and search
15 Defendant’s vehicle after Defendant’s departure.
16 {16} Under our case law, the emergency aid doctrine operates to justify the search
17 of a home upon an officer’s arrival at a given location under circumstances that call
18 for the officer to exercise the community caretaking responsibility to provide
19 emergency assistance. See Ryon, 2005-NMSC-005, ¶ 4 (describing entry into a home
12
1 in response to several calls from dispatch concerning a stabbing victim and other
2 persons with possible head injuries); Nemeth, 2001-NMCA-029, ¶¶ 3, 8 (describing
3 entry into a home in response to a possible suicide). In such circumstances, whatever
4 search is conducted happens alongside the officer’s actions in response to providing
5 emergency assistance. The first requirement of the three-part test reflects the
6 importance of this contemporaneous connection—the “police must have reasonable
7 grounds to believe that there is . . . an immediate need for their assistance for the
8 protection of life or property.” Ryon, 2005-NMSC-005, ¶ 29 (emphasis added)
9 (internal quotation marks and citation omitted). Here, by the time Sergeant Foreman
10 searched Defendant’s vehicle, the emergency had subsided and been resolved by the
11 decision to have Defendant taken to the hospital. Sergeant Foreman could not
12 possibly claim that he needed to seize the vehicle and inventory its contents in order
13 to aid its owner where the owner was himself no longer within the vehicle and was
14 already receiving substantial assistance from medical personnel at a different
15 location. Unlike Nemeth and Ryon, rendering emergency assistance to Defendant did
16 not require Sergeant Foreman to enter into or search Defendant’s vehicle.
17 {17} We must, therefore, analyze Sergeant Foreman’s decision to impound
18 Defendant’s vehicle and inventory the items within it under the impoundment and
19 inventory doctrine of the community caretaker exception. We begin by reviewing the
13
1 line of New Mexico cases discussing the test for the impoundment and inventory
2 doctrine, beginning with Ruffino. We track the development of the test, state it in its
3 present form, and apply it to the facts of this case.
4 A. The Impoundment and Inventory Doctrine of the Community Caretaker
5 Exception
6 {18} The State cites federal circuit court opinions in support of its argument that
7 Sergeant Foreman’s decision to tow Defendant’s vehicle was justified by the
8 impoundment and inventory doctrine. The State asserts that there is “no standardized
9 criteria for evaluating reasonableness—it depends on a case-by-case inquiry of the
10 facts and circumstances leading to the decision to impound.” We find the State’s
11 characterization of the law accurate and supported by four decisions from New
12 Mexico’s appellate courts. We discuss these four cases sequentially, apply the
13 resulting legal precepts to the facts of this case, and conclude that Sergeant Foreman’s
14 decision to impound and inventory Defendant’s vehicle was reasonable.
15 B. New Mexico Cases
16 {19} As previously discussed, New Mexico’s appellate courts have established a
17 three-part test for assessing reasonableness under the impoundment and inventory
18 doctrine, often referred to as the Ruffino requirements. In Ruffino, our Supreme Court
19 found reasonable an officer’s search of a vehicle following the arrest of the owner of
20 the vehicle. The officer first searched the vehicle’s interior, then used the keys to
14
1 unlock the trunk and inventory the items within the trunk. The defendant challenged
2 the search of the trunk specifically. Despite the defendant’s specific complaint that
3 the search of the trunk exceeded the officer’s authority under the impoundment and
4 inventory doctrine, the Court held that “the initial search was valid,” and that “the
5 entry into the trunk was equally valid.” Ruffino, 1980-NMSC-072, ¶¶ 2, 6. “To forbid
6 entry into trunks as part of an inventory search would frustrate the very purpose of
7 the inventory, since the trunk is a likely place for valuables to be stored.” Id.
8 Although Ruffino discusses which parts of an automobile may be subject to an
9 inventory search, a question not at issue in the present case, the decision set forth the
10 three-part test used in New Mexico for evaluating a search and seizure based on the
11 impoundment and inventory doctrine. In short, the vehicle must be in police custody
12 or control, the inventory made pursuant to established police regulations, and the
13 search reasonable.
14 {20} The following three cases apply the Ruffino requirements and together embody
15 New Mexico law on valid inventory searches. In Williams, our Supreme Court found
16 reasonable an officer’s search of a vehicle legally parked behind a grocery store
17 following the arrest of its owner. Officers arrested the defendant while he attempted
18 to force a cashier to empty her register at gun point. Williams, 1982-NMSC-041, ¶ 2.
19 After taking the defendant to the police station for booking, officers discovered “a set
15
1 of keys in the defendant’s pocket.” Id. An officer returned to the store to locate the
2 defendant’s vehicle, found it “locked and legally parked behind the grocery store[,]”
3 and then searched its contents. Id. The defendant sought suppression of the items
4 found during the officer’s inventory search of the vehicle, arguing that the state failed
5 to prove the first requirement of a valid inventory search—there must exist “some
6 nexus between the arrest and the reason for the impounding.” Id. ¶ 5 (internal
7 quotation marks and citation omitted).
8 {21} Our Supreme Court concluded that “the first Ruffino requirement was
9 satisfied,” citing two federal cases. Williams, 1982-NMSC-041, ¶¶ 5, 7 (citing
10 Preston v. United States, 376 U.S. 364 (1964) and United States v. Lawson, 487 F.2d
11 468 (8th. Cir. 1973)). In Preston, the police properly took custody of a vehicle after
12 arresting the defendants for vagrancy while sitting in the parked vehicle, “even
13 though they presumedly could have locked it and left it parked where it was.”
14 Williams, 1982-NMSC-041, ¶ 5. In Lawson, the police impounded a locked vehicle
15 parked in the parking lot of a motel on the day that they arrested the vehicle’s owner
16 for passing insufficient funds checks. Williams, 1982-NMSC-041, ¶ 5. Our Supreme
17 Court observed that the decision to impound in those cases could not be justified
18 because of some necessity, e.g., the car presented a traffic hazard or its location
19 violated a parking ordinance. Id. ¶ 6. Rather, Preston and Lawson illustrate “that no
16
1 compelling need must be present to justify impoundment of a vehicle incident to an
2 arrest.” Williams, 1982-NMSC-041, ¶ 6. “The possible use of the vehicle as evidence
3 of the crime . . . supplies the necessary nexus between the arrest and the reason for
4 impounding.” Id. ¶ 7. Notably, our Supreme Court clarified, “[t]he fact that the
5 vehicle was legally parked and could have been left there does not make the
6 impoundment improper.” Id.
7 {22} In Boswell, our Supreme Court found reasonable a search of the defendant’s
8 wallet conducted after an officer took the defendant to the police station for booking.
9 Suspecting the defendant of shoplifting at his grocery store, the store’s manager
10 detained the defendant in his office. 1991-NMSC-004, ¶ 2. Upon arrival, the police
11 requested the defendant’s identification. Id. After retrieving his identification from
12 his wallet, the defendant inadvertently placed his wallet on a cabinet in the office
13 where it remained until an officer returned to the grocery store to find it during the
14 defendant’s booking. Id. As in Williams, the defendant in Boswell sought to suppress
15 the drugs later found in his wallet, arguing that the police did not have lawful custody
16 of the wallet, i.e., that there was no reasonable nexus between the defendant’s arrest
17 for shoplifting and the officer’s seizure of the wallet. Boswell, 1991-NMSC-
18 004, ¶¶ 4, 8.
17
1 {23} Our Supreme Court held that, “[t]he reasonable nexus between the arrest and
2 seizure need not be based on probable cause, but can be based on all the facts and
3 circumstances of this case in light of established [F]ourth [A]mendment principles.”
4 Id. ¶ 12 (alteration, internal quotation marks, and citation omitted). The Court’s
5 analysis of the first requirement tracked the facts relevant to the third requirement of
6 a valid inventory search, that is, its reasonableness: the defendant’s wallet was left in
7 the manager’s office, a location in which the defendant had no reasonable expectation
8 of privacy or possessory interest; the defendant left the wallet accidentally and in an
9 unsecure place “as an immediate result of [his] arrest[;]” theft or loss of the wallet
10 was probable; and the police may be liable for such loss or theft. Id. ¶ 13.
11 {24} Importantly, Boswell also explicitly rejected the defendant’s argument that the
12 officer cannot lawfully acquire custody of the defendant’s possessions if the
13 defendant can arrange for someone else to retrieve the item. Id. “This would not have
14 removed the risk that intervening causes would result in the loss of the wallet, nor
15 would it exculpate the police had it been lost.” Id. The officer’s investigation of the
16 defendant created a situation that put the defendant’s property at risk of theft or loss,
17 and therefore, the officer has an “on-going” responsibility to safeguard the
18 defendant’s property. Id. The risk of loss to the defendant and the possibility of police
19 incurring liability for that loss provide valid bases upon which an officer may claim
18
1 to have custody or control of the item. “[T]he reasonable nexus between the initial
2 arrest and [the] seizure is not found in a theory of probable cause to suspect the
3 existence of contraband or evidence, nor necessarily on an incident to arrest theory,
4 but in the need to safeguard [the] defendant’s property from loss and to protect the
5 police from liability and charges of negligence.” Id. ¶ 14.
6 {25} Finally, in Shaw, this Court found reasonable a search of a cigarette pack
7 removed from the defendant’s pocket during booking, following his arrest for a
8 domestic disturbance. 1993-NMCA-016, ¶¶ 2, 17. The defendant argued that
9 searching the cigarette pack did not further any of the permissible purposes of an
10 inventory search. Id. ¶ 12. Because the value of cigarettes is negligible, the defendant
11 argued that a search of a cigarette pack cannot be necessary to protect the arrestee’s
12 property or to prevent claims against police for the loss or theft of the cigarettes. Id.
13 We rejected this argument for “miss[ing] the essence of the law controlling inventory
14 searches,” and we emphasized “that a clearly established inventory procedure may
15 properly require that jailers search all containers, including cigarette packs.” Id. ¶ 13.
16 Moreover, we acknowledged that Boswell “is illustrative of the broad scope of lawful
17 inventory searches.” Shaw, 1993-NMCA-016, ¶ 14. We concluded “there was
18 substantial evidence to find that the inventory of [the d]efendant’s cigarette pack . . .
19 was reasonably made in furtherance of both the protection of the arrestee’s property
19
1 and to protect the police against false claims because items of value such as money,
2 rings, and bracelets are often temporarily stored in open cigarette packs.” Id. ¶ 16. In
3 short, we found the search reasonable because the purpose was to inventory the
4 contents of the cigarette pack and because the detention facility’s procedure furthered
5 legitimate police interests. Id. ¶ 17.
6 {26} In sum, the state of the law of the impoundment and inventory doctrine has
7 evolved from the distinctive three-part test first established in Ruffino, and now
8 focuses more generally on the reasonableness of the officer’s asserted custody or
9 control of the item seized and searched. Insofar as the officer’s decision to impound
10 the vehicle or seize the item stems from concerns that the vehicle or item could be lost
11 or stolen and that the officer could be liable for such loss or theft as a result of the
12 officer having separated the owner from the vehicle or item, the officer may impound
13 or seize. Notably, the following considerations do not by themselves defeat the
14 reasonableness of the officer’s decision to impound a vehicle or seize an item:
15 whether the vehicle could remain in its location legally if not impounded, Williams,
16 1982-NMSC-041; whether another person could acquire the item on the defendant’s
17 behalf, Boswell, 1991-NMSC-004; and whether the item is valuable, regardless of
18 whether the officer has any way of knowing its value, Shaw, 1993-NMCA-016.
20
1 C. Application of the Impoundment and Inventory Doctrine and Parties’
2 Arguments
3 {27} Turning to the present case, we address Defendant’s argument and evaluate the
4 reasonableness of Sergeant Foreman’s decision to impound Defendant’s vehicle.
5 Defendant focuses on several facts that tend to show the unreasonableness of
6 Sergeant Foreman’s decision to impound his vehicle. First, Defendant rented the
7 vehicle; he did not own it. Defendant maintains that the car rental company
8 presumably had contingencies for retrieving its own abandoned or disabled vehicles.
9 The initial encounter between Defendant and Sergeant Foreman began at 3:30 p.m.,
10 a time the car rental company was reachable by phone. Defendant maintains that these
11 facts prove that calling the car rental company to seek assistance from an agent was
12 the reasonable course of action. Alternatively, Defendant notes that the owner of
13 Dino’s Mini-Mart could have arranged for the removal of the vehicle given its
14 location on the owner’s property. Second, Defendant highlights the condition and the
15 location of the vehicle. The vehicle was not disabled; it was not a nuisance; it was not
16 obstructing a highway or other public roadway; and it was parked legally.
17 {28} We are not persuaded that these facts prove Sergeant Foreman’s decision to
18 impound the vehicle was unreasonable. Defendant asserts that the availability of two
19 other persons besides Sergeant Foreman who initiated the police-citizen encounter
20 compel the conclusion that Sergeant Foreman’s decision to manage the vehicle
21
1 himself was unreasonable. Our precedent states that such a fact cannot be dispositive
2 of the reasonableness determination. Indeed, our Supreme Court rejected Defendant’s
3 argument in Boswell. There, the defendant had asked that a friend, rather than an
4 officer, retrieve the defendant’s wallet after the defendant’s arrest. Boswell, 1991-
5 NMSC-004, ¶ 2. Because reasonableness “can be based on all the facts and
6 circumstances of this case in light of established [F]ourth [A]mendment principles[,]”
7 which include safeguarding the defendant’s property upon arrest and limiting the
8 officer’s exposure to liability for theft or loss, the Court rejected the defendant’s
9 argument that the search of the wallet was unreasonable because someone else could
10 have safeguarded it on behalf of the defendant. Id. ¶ 12 (alteration, internal quotation
11 marks, and citation omitted). The Court explained that allowing someone else to
12 recover the defendant’s property would not eliminate “the risk that intervening causes
13 would result in the loss of the wallet, nor would it exculpate the police had it been
14 lost.” Id. ¶ 13. Rather, “[l]eaving the wallet in the office, where [the] defendant had
15 no privacy interest or expectation of security and where any number of unknown
16 individuals may have gained access to the wallet, subject to the friend possibly
17 retrieving it at some future time, would be careless police procedure evincing a lack
18 of concern for the defendant’s belongings.” Id.
22
1 {29} The same logic applies here. Fourth Amendment issues and the applicability
2 of exceptions to the Fourth Amendment stem from conduct that occurs between an
3 officer and a citizen. Sergeant Foreman, not the car rental company, not the owner of
4 Dino’s Mini-Mart, and not some other person Defendant might have called upon to
5 attend to Defendant’s vehicle, was responsible for separating Defendant from the
6 vehicle. Therefore, Sergeant Foreman must also be the person responsible for
7 safeguarding the vehicle and for taking precautionary measures to protect himself
8 from suit should he fail to do so effectively. The willingness of a person—a person
9 not directly involved in the police-citizen encounter but who may have some interest
10 in the vehicle’s location—to assume responsibility for a defendant’s property cannot
11 be determinative of the reasonableness of the officer’s decision to care for the
12 defendant’s belongings where the officer was responsible for separating the owner
13 from those belongings through the exercise of the officer’s community caretaker
14 obligations.
15 {30} Similarly, we are not persuaded by Defendant’s contention that the operability
16 of the vehicle and the fact that it was parked legally control the reasonableness of
17 Sergeant Foreman’s decision to impound the vehicle. Our Supreme Court previously
18 decided that “[t]he fact that the vehicle was legally parked and could have been left
19 there does not make the impoundment improper.” Williams, 1982-NMSC-041, ¶ 7.
23
1 The Court cited two United States Supreme Court opinions where, in neither case,
2 “could the impoundment be characterized as necessary because the car was a traffic
3 hazard, or because it was violating a parking ordinance[.]” Id. ¶ 6 (citations omitted).
4 Here, as in Williams, there existed no compelling need to move the vehicle because
5 it posed a particular hazard or otherwise violated any other traffic laws. Id. “[N]o
6 compelling need must be present to justify impoundment of a vehicle incident to an
7 arrest.” Id. Our cases show that the fact that the vehicle is properly parked does not
8 preclude impoundment of it based on its owner’s compelled absence from the parking
9 lot.
10 {31} We note that we examine the reasonableness of Sergeant Foreman’s conduct
11 under circumstances unique to our past cases applying the impoundment and
12 inventory doctrine. Unlike our other cases, Sergeant Foreman did not arrest
13 Defendant before deciding to impound and therefore inventory Defendant’s vehicle.
14 The broader legal issue this appeal presents concerns the applicability of the
15 impoundment and inventory doctrine where the officer does not arrest the owner of
16 the vehicle prior to making the decision to impound. See Boswell, 1991-NMSC-004,
17 ¶ 2 (describing arrest prior to the search of the arrestee’s wallet); Williams, 1982-
18 NMSC-041, ¶ 2 (describing arrest prior to the search of the arrestee’s vehicle);
19 Ruffino, 1980-NMSC-072, ¶ 2 (describing arrest prior to the search of the arrestee’s
24
1 vehicle); Shaw, 1993-NMCA-016, ¶¶ 2, 3 (describing the search of a wallet and a
2 cigarette pack during the arrestee’s booking into the detention center).
3 {32} Defendant argues that the impoundment and inventory doctrine can only apply
4 to situations where police first arrest the owner of the vehicle. We disagree with
5 Defendant, and we conclude that Sergeant Foreman’s decision to impound and
6 inventory Defendant’s vehicle was reasonable under the impoundment and inventory
7 doctrine given the circumstances that confronted him. We acknowledge that if the
8 defendant’s arrest is a necessary component of the rationale underpinning the
9 impoundment and inventory doctrine, then the doctrine may not be applied to the
10 facts of this case, absent novel reasons for the doctrine’s existence. We cannot
11 conclude, however, that the doctrine only applies to searches following an arrest for
12 two reasons.
13 {33} First, the impoundment and inventory doctrine is, as explained previously, one
14 branch of the community caretaker exception to the Fourth Amendment. The
15 community caretaker exception, not just the impoundment and inventory doctrine,
16 was born from the understanding that not all police-citizen encounters involve
17 criminal investigation. Rather, police frequently interact with citizens innocuously,
18 not seeking to implicate the citizen in a crime. The overarching concept substantiating
19 the community caretaker exception is the non-criminal nature of the officer’s contact
25
1 with the citizen. The exception itself presupposes the lack of criminal activity that
2 would precede an arrest. It therefore makes little sense to conclude that one of the
3 doctrines within the exception would require criminal activity as a precondition to its
4 application.
5 {34} Second, we believe, and our case law supports the conclusion, that an arrest is
6 not what makes an officer’s decision to impound a vehicle reasonable.
7 Reasonableness is a function of an officer’s responsibility to safeguard the citizen’s
8 property and a prudent officer’s need to insulate the police from liability should the
9 citizen’s property be lost or stolen. Shaw, 1993-NMCA-016, ¶ 10. Any time a citizen
10 is separated from his or her belongings, be it because an officer arrested that citizen
11 or because the officer’s judgment led the officer to believe the citizen required
12 medical attention at a facility some distance from the citizen’s vehicle where the
13 officer responded to the citizen’s medical emergency, the citizen’s property is left
14 exposed and unattended, and because the officer is involved in the separation of the
15 citizen from the citizen’s belongings, the officer opens himself or herself up to
16 potential liability for the loss or theft of those belongings. The reasons an officer’s
17 decision to impound may be reasonable rest not on the existence of an arrest, but on
18 the resulting circumstances after an arrest occurs—the separation of the citizen from
19 the citizen’s property leaves the citizen’s property unattended and in a public place.
26
1 A medical emergency may produce, exactly as it did in the present case, the same
2 factual circumstances, i.e., the citizen no longer possesses or controls his own
3 property because of the officer’s assistance. For the foregoing reasons, we conclude
4 that Sergeant Foreman’s decision to impound and inventory Defendant’s vehicle was
5 reasonable under the impoundment and inventory doctrine, despite not having
6 arrested Defendant prior to deciding to impound Defendant’s vehicle. More
7 specifically, it was not unreasonable for Sergeant Foreman to have decided to
8 impound Defendant’s vehicle given that Defendant understood and responded
9 positively to Sergeant Foreman’s offer to bring the tow paperwork to the hospital, and
10 that Defendant’s rental car would have been left unattended for an unknown period
11 of time in an area known for criminal activity while Defendant received medical
12 treatment.
13 {35} Finally, we address Defendant’s two remaining arguments. Defendant argues
14 that the State did not offer any evidence proving that there existed a threat of theft or
15 vandalism to the vehicle were Sergeant Foreman to leave the vehicle parked in the
16 parking lot. The only evidence the State presented came from Sergeant Foreman’s
17 testimony at the suppression hearing, during which he stated that the location of the
18 convenience store was “known for criminal activity.” Defendant cites to our decision
19 in Apodaca v. New Mexico Taxation & Revenue Dep’t, for the proposition that the
27
1 officer must express “specific, articulable safety concern” to justify the intrusion.
2 1994-NMCA-120, ¶ 5, 118 N.M. 624, 884 P.2d 515. In the present case, the district
3 court concluded that the community caretaker exception requires “actual” evidence
4 of unsafe conditions, and, “[t]here was no evidence it was a high value car or that it
5 contained visible high value items which might make it a target for theft or
6 vandalism.”
7 {36} We cannot rely on Apodaca for this proposition of law. There, an officer
8 stopped the driver of a motorcycle weaving within one lane of traffic in a pendulum-
9 type motion. Id. ¶ 2. The officer specifically admitted that he never suspected the
10 driver was intoxicated or otherwise committing a traffic infraction. Id. ¶ 3. Rather, the
11 officer initiated the stop out of concern for the driver’s welfare, perhaps an injury or
12 illness. Id. Accordingly, the defendant argued that the stop was unconstitutional
13 because the officer had no reasonable suspicion that the driver was engaged in
14 criminal activity. Id. ¶ 4. We found the stop constitutional because “a police officer
15 may stop a vehicle for a specific, articulable safety concern, even in the absence of
16 reasonable suspicion that a violation of law has occurred or is occurring.” Id. ¶ 5. Our
17 decision relied on State v. Reynolds, 1993-NMCA-162, 117 N.M. 23, 868 P.2d 668,
18 rev’d on other grounds by 1995-NMSC-008, 119 N.M. 383, 890 P.2d 1315.
28
1 {37} Both cases, Reynolds and Apodaca, fall into a different line of cases—those
2 applying the public servant doctrine of the community caretaker exception. See Ryon,
3 2005-NMSC-005, ¶ 26 (citing, exclusively, Reynolds and Apodaca in the course of
4 explaining the public servant doctrine, where a search and seizure of a vehicle on a
5 public highway “is judged by a lower standard of reasonableness: a specific and
6 articulable concern for public safety requiring the officer’s general assistance”). The
7 public servant doctrine, not the impoundment and inventory doctrine, requires the
8 officer to identify specific safety concerns. Id. The third branch of the community
9 caretaker exception stems from factual circumstances where one citizen’s vehicle
10 poses a particular hazard to the general public. See Apodaca, 1994-NMCA-120, ¶ 2
11 (describing a driver operating a motorcycle on highway erratically); Reynolds, 1993-
12 NMCA-162, ¶ 2 (describing a driver operating a vehicle on highway with an open
13 tailgate and three passengers with feet dangling). Here, because Defendant’s vehicle
14 remained stationary and in a parking lot, not a roadway, Defendant’s vehicle
15 presented no such obstacle. The public servant doctrine does not apply, and therefore,
16 neither does its requirement that the officer proffer identifiable and particular
17 concerns about the safety of the general public in order to justify the officer’s
18 decision to stop and search the vehicle. To the extent the district court granted
19 Defendant’s motion to suppress because of the State’s failure to provide specific
29
1 evidence concerning the dangerousness of the parking lot of Dino’s Mini-Mart, we
2 conclude the district court’s order draws erroneous conclusions of law about the
3 impoundment and inventory doctrine.
4 {38} Lastly, Defendant argues the State failed to prove Sergeant Foreman’s
5 inventory search complied with police regulations and procedures, the second Ruffino
6 requirement. Defendant cites two sections of the Department of Public Safety Policy
7 Manual, providing “[w]hen the driver is arrested, the officer shall inventory the
8 vehicle if it is being towed from the scene[,]” and “[o]fficers shall not tow vehicles
9 from private property at the property owner’s request due to them being abandoned.”
10 According to Defendant, the policies only authorize the towing of a vehicle if the
11 officer arrested its owner. We disagree with Defendant’s reading of these policies.
12 The first policy cited by Defendant applies only if the officer arrested the driver of the
13 vehicle. It says nothing about the proper procedure to follow if the antecedent is not
14 true, i.e., where the officer did not arrest the driver. The second policy cited by
15 Defendant is irrelevant because Sergeant Foreman did not receive a request from
16 anyone (neither the car rental company nor an owner or employee of Dino’s Mini-
17 Mart) to remove Defendant’s vehicle.
30
1 CONCLUSION
2 {39} We hold that a police officer may decide to impound a citizen’s vehicle under
3 the impoundment and inventory doctrine of the community caretaker exception to the
4 Fourth Amendment where a medical emergency results in the driver’s separation from
5 the vehicle. Applying the test appropriate to the impoundment and inventory doctrine,
6 we conclude that Sergeant Foreman’s decision to tow and subsequently search
7 Defendant’s vehicle was reasonable. We reverse the district court’s order granting
8 Defendant’s motion to suppress.
9 {40} IT IS SO ORDERED.
10 ___________________________________
11 STEPHEN G. FRENCH, Judge
12 WE CONCUR:
13 ___________________________________
14 JAMES J. WECHSLER, Judge
15 ___________________________________
16 TIMOTHY L. GARCIA, Judge
31
State v. Byrom
Combined Opinion