vehicle ascertained he was unlicensed driver suspended license he obviously fit within the definition of an unlicensed driver within fourteen six of two point six however he was discretionary with the l a p d as to it's because it's to punish the administrators penalty to deter the tampering forfeiture and who's making that call it's the l a p d let's say the legislature passed a law we know that terrible things terrible crimes are committed with guns legislature passes a law that says if the policemen believes you know probable cause that the gun was used in a crime the policeman can take the gun without a warrant and hold it for thirty days in order to teach her as well as perhaps to penalize now there's no requirement for judicial review however the gun owner can go to the police department that sees the gun and say look you made a mistake you shouldn't take my gun and that's it that's the review you get to police department with that standing of the fourth amendment i don't think so i think when you talk about guns you're also whether or not to punish it is that then that's really not the issue we're trying to decide here and that seems to me to be off the point the police have certain discretion they have a whole series of statutes and they get to invoke them a lot of times in ways that we think are not particularly rational or what we would do isn't a legal question we have to decide whether this seizure which did occur can continue  without the ability of the car owner to get the car back whether that's some kind of constitutional violation well i think i mean i don't know why it matters what statute the police pick so maybe you can explain that or perhaps the point did deserve  i don't know what those things are but but not for the men i have which is i think is what judge mchugh was question i guess is what does any of this have to do with the fourth amendment the fourth amendment requires conditional review when the police seize property there are  or removing a vehicle off the street but community caretaking is not a criminal law dr and it's of course it's just to protect property and to prevent a traffic hazard by leaving the car on the street what would be so you say at some point you said he knew he i mean you're complaining about the lack of a hearing as i was you know about what worked and what were complaining is once the car has been removed from the street placed in the vehicle storage yard community caretaking has been satisfied when miss brewster was at the privately but then they have another just for cation they have a vehicle code section that says you've got to keep the car well you can't police the car so you know you have queer caretaking that stops at some point and then you've got another just a case of state law that says you got to hold on to the car that's true however state law does not trump the fourth amendment if the holding the video but the fourth amendment  you've got to look at state law here you look at state law state law says you can't police of why why isn't that all the justification you need for the purpose of the fourth amendment well to go back the reason i've used the hypothetical  police going out and seizing say your alleged burglary tools is that under the fourth amendment absent an accident circumstance there would have to be judicial review that's why so simply because state law says they can do it with band of taxes go to a court and get a court order that says yes you can keep the car for the thirty days that's what the police should have done ok same thing you do with then you turn that's your that's your that's your  fourth amendment time to go i mean there's no two ways in which that hearing is going to come out there's no you know you say judicial review but all you're doing is the judge is saying yes it's less than thirty days and so because they are entitled to keep us for thirty to say footnote aside was that the community care taking exception justifies the initial seizure but that the seizure is continuing in a way that violates the fourth amendment because there is no longer any justification for communicating ron is that what you're saying correct and there has to be a fourth amendment justification for that seizure or an exception to the warrant requirement and there is no exception th they can hang on to the car well they can hang on the car for some period of time but they cannot hang on to it indefinitely i mean ice age versus dos this court holding you know suspicious packages for up to twenty three days without seeking any type of process you see due process issues that come up depending upon how long you're holding a car for what reason that sort of thing but once you're seizing property basic rule is you have to have a warrant less here the exception community caretaking ended once the cart within the storage yard they didn't seek any warrant they didn't find any other out exception to the warrant requirement that would justify keeping a car for thirty days  one i would not have this fourth amendment claim i may have a fourth amendment claim that a criminal case arose out of the proceedings and then i would bring a motion to suppress and i could argue that the warrant authorizing the seizure wasn't supported by probable cause well the question is under what standard does the judge authorize that because we're the amendment obviously has this flexibility from suspicion to probable cause to whatever you if you're if your position as i understand it is that you need probable cause and without that for extended impoundment you have a fourth amendment violation now you're saying well or you just needed some judge's signature regardless of what standard is used if the judge just says oh i see there's a statute i'm going to sign so then it would be ok it would officiate your fourth amendment claim presumably the probable cause the warrant application would submit what the officer cements is evidence of the underlying crime and there's basically two possible underlying crimes here one is driving a vehicle with a suspended license and secondly with regard to the owner of my client mr brewster knowingly permitting the unlicensed driver to drive her vehicle all right so presumably the warrant application address has facts alie get facts supporting the probable cause for those crimes and if the judge believes that there is i just just to cut to the chase your position is that in order for the judicial sanction to be effective it has to be based on a probable cause finding her or like a warrant application morning gabriel sherman for the police footnotes and briefs aside this is a fourth amendment case and i don't actually think it's that complicated a fourth amendment case it is conceded that taking the car from the street is a seizure governed by the fourth amendment or fourth member principles here miss brewster concedes the propriety of that seizure at that point the los angeles police department you pick whatever they have possession of the car if that possession following the seizure is viewed as a subsequent seizure continuously something like this excuse me then the district court got it wrong on the other hand if that subsequent retention of the property after the proper seizure is viewed as subsequently tension of property with the du only when the case and that temporary detention becomes a fourth amendment problem of tell for too long here we have a fourth amendment problem if you will out of the gate with the seizure from the street we comply with the fourth amendment for community caretaking then you have a seizure but then continued possessory interest down the road can become a fourth amendment violation why isn't that exactly what we have here because this continued continued possession down the road is protected by the the fourteenth amendment due process and all of the way you are trying to cleanse a fourth amendment violation with the fifth amendment due process i'm not because there was no fourth amendment violation because the appellant concedes that this year what you believe and what you think you have it doesn't really matter now if you want to answer my question on the assumption that i think yes you can do it if you choose not to then i'll have to assume there is no good answer so if you you know that the thirty day hold is a fourth and then problem you have the question you want to repeat the question if because you were so convinced that that was not true because you're not going to listen to it if if the court wouldn't mind repeating the question i'd appreciate that you have to deal with now i realize you don't believe that but doesn't matter that you don't believe it right the understand that part yes ok so i assume now that i think it matters how do you deal with the fourth amendment problem the fact that you now have something that is no longer the seizure holding onto the vehicle is no longer justified by the community caretaking function we would only have at that point the statutory authority and the justifications provided by the but that's not enough we know n fact that might be a subsequent season you know we might come out and say those seizure what is your fourth amendment answer that i'd surely when we were preparing for this case you somebody  have told you that that would be a question we asked so the question must be readily on your tongue because surely when you were moved as for this case somebody asked you that question right and that's where the case lives or dies i agree if if i that's the end of the case i can see that this retention would be proper viewed under due process but we don't have a fourth amendment warrant or a justification to hold out of the fourth amendment so just to be clear on your position i think everyone agrees here including your colleague over here that the initial seizure of course is justified by the community caretaking and is a seizure and is a seizure so we all agree luckily we start at the same place is it your position that the single justification for the seizure which is the caretaking exception that that then lasts all the way through till they give it back no cases from temporary detentions being blown into full blown seizures that don't comply with the fourth amendment but how do we accept your position when the ninth circuit precedent is that it doesn't and simply upon the seizure we have cases that talk about the continuing situation i mean i don't understand we would have to basically override those cases who would know because none of those cases have a proper seizure at the inception that complies with the fourth amendment and then a statutory basis that complies with due process right behind it so the entire retention of the property from seizure to return is for is compliant with the constitution ok so let's say we don't have a statute let's say we're driving down the road and and my friend is driving said oh give me your phone i need to call somebody it's ok here is my phone and he gets on the phone police say automatic violation we stop and they seize the phone if they say look we can't have this guy driving down the road talking it's my phone and everyone would agree that this that there was a seizure of the phone and that it was proper and that the police could even take it under the communicator taking exception so make sure this guy's not going to keep driving do they have the right then to keep that phone for ever you know when when do they have to give it back it's my fault i didn't do anything i was just had the bad luck to have stupid friends i couldn't tell you when they have to give it back but i can tell you that i think the due process equivalent to when a person is arrested and then bail kicks in i think due process would dictate when that property is returned not the fourth amendment but the but the what is the justification for the continued retention of it before you are hinting that on the state statute we don't have state statute in my hypothetical so what's the continued justification for the retention in that case and i wouldn't i wouldn't know when i am pinching my case on the state statute but i don't know that if the fourth amendment is complied with i don't know when  statute said you could keep it for a year that be ok too because it's a state statute to depend well no i mean there would have to be due process protections in place if if due process provided for keeping that car for a year then i would say right i thought from your brief that you were defending the post impoundment thirty day detention of the car as in essence a temporary civil forfeiture that was imposed as punishment for the offense either if you're the registered owner of the car who was the unlicensed driver for for doing that or even in a situation of our case here you're the registered owner and you negligently entrusted your car to somebody who didn't have the lawful authority to drive it and we normally there are normally more process protections built into that kind of forfeiture before it can be imposed upon someone right and i guess i'm how i know we don't have a fourteenth amendment due process came before us but how would you justify the statute here under this if we're going supposed to conceive of the thirty day detention as a temporary civil forfeiture how could that really be imposed on the  complete absence of any judicial process whatsoever this court in two thousand and eleven in the salazar case found that the state legislature determined that the problem that it was trying to address with the statute was a significant one and they imposed impose this statute because they viewed this temporary retention detention administrative penalty whatever you want to call this thirty day hold of the vehicle as the best mechanism they could come up with t address this significant problem of unlicensed drivers or or suspended license drivers in this and that's that's what we have here but you do what you just tell me another situation in which we allow the government to impose a forfeit even of a temporary nature without any judicial process whatsoever because i can't think of any i can think of other cases where we are the supreme court of appellate civil forfeiture is attached to some underlying violation of the criminal law but it's never in the situation where like we have here and that's i guess what bothers me the most so is there some other context i'm not aware of really analogous these temporary thirty day forfeiture when you talk about for ture we're talking about civil forfeiture is that or are judicial proceedings because the government can take the car forever take that property forever so i'm not aware necessarily of a particularly analogous analogous areas of your possession of the car i mean it's not a permanent deprivation and the court the city or the state here is not going to take it forever in fact it's their story that they did a temporary possession of the vehicle following a legitimate right so so it seems to me if that's the basis on which you're going to defend this then you would also have to say that if we had let's say we had a different statutory regime this one only allows the thirty day temporary forfeiture in connection with the immediate seizure of the car pursuant to the community caretaker doctrine but let's say that we had facts like we did in our decision in miranda where the person got all the way home and actually had the car parked in the driveway there we've held that the community caretaker doctrine does not authorize you to even get the initial possession of the car but let's say that the statute were different and said that even in that situation we want this thirty day temporary forfeiture imposed right so you don't have the advantage of having already gotten the car and into your custody what then you could just show up the next day with a tow truck and they were taken to the impound lot c in thirty days you would presumably need some kind of judicial process on the front right i think that if the rand there was a warrant with this statute then it would be this case that's that's where there needs to be a justification to take the car from the driveway and that seems to me the only difference here is that the  justification for the initial interference with the owner's possession is taken care of by virtue of the community caretaker exception of the fourth member from that of the guy but you have the exact same problem on the back end in the hypothetical i posed right that you're trying to impose now a separate civil forfeiture on this on the owner without there having been any judicial determination of anything it's not a it's not a forfeiture it's the thirty days there's a hearing that comports with due process i suppose why do you could have the most neutral it's not the person who sees the car it's the same body we don't have the cop that did impound doing it it's that this is his or her police department it's a colleague yes ok i wouldn't call that neutral but ok there's no judicial involvement and don't and i'm very much for getting up putting in this brief this time yes but i but i know that the that courts have held that administrative reviews comply with due process ok but so just coming back though to the fourth amendment problem that you are trying to address with judge kozinski i assume that if you could the let's take away any due process concerns because the plane if you're just hasn't for whatever reason raise that as a as a claim all we have is the fourth amendment i guess what you would say is that the thirty day temporary civil forfeiture is reasonable to the extent that the fourth amendment requires some reasonable this review because i don't know in relation to the seriousness of the underlying offense this temporary taking away of the car is the logistically i don't know when the when the police would do that and when that seizure would trigger certainly you would need a warrant or an exception a war crime to take the vehicle in the first instance when the city already has possession of the vehicle i right i believe that a warrant could be could be gotten if the court ordered us to get a warrant if that's that's my answer i know that the i'm looking at question now and it's it's not it's a due process case and it's also talking about whether you would need a hearing in less than forty eight hours nobody's suggesting here but it says they we that circuit holds that a provision for post seizure hearing within forty eight hours satisfies due and they hearing can be it a hearing within forty eight hours that's what this is not notice of the hearing for years she can have her card taken for thirty days though and this is what what what due process requires which of course if there's a due process provision that's that's complied with here that doesn't necessarily mean there's not a fourth amendment violation so i'm not sure how whiteman helps you it was more than just what for its point that i believe that we have the due process protections on the backend here for the statute i understand that it doesn't cover the fourth amendment and there's not even a due process claim being made here but i'm pointing out that the due process protections are legitimate and provided for here i want to ask you a couple of questions about the mechanics because i want to make sure i understand asking for yes for for a fact you know i guess it's in this case the plane of car wasn't held for thirty days but yes as a general rule i was going to get to that yes if you hear my question yes they prefer thirty days and they booster there was some dispute about that in the trial court it was our position that it was released without any condition to the title company the impound yard just return it to the title company without any any condition explain to me why wasn't her lease to them and not to her i don't mean why in the sense of what's possible when so i really meant why does a statute repossessions if the registered legal owner the same person would be considered to be a repossession of the vehicle or a repeal company that's what it's it's talking about the statute you're speaking of phrases not force and says the one that's talking about this statute allows legal owners financial companies people who want to repossess to seize vehicle because payments haven't been made whatever reason they can repossess the vehicle again you know if they show the proper documentation if the legal owner registered owners vehicle was seized in compliance with community care taking another exception and then held for thirty days under the statute there would be no no similar reason to give the car this respond to your your last point just for them to give l a p d released the car to the lienholder his declaration is in the record he states he got the car from the l a p d on the condition that he not release it to miss brewster or her agent for the thirty day period we also put in a record the evidence of the l a p d policy that the car gets released to a lien holder such as the finance company and less than thirty days but only on the proviso that it not be returned to the registered owner or his or her agent for the thirty day time period that's both pursed attitude and an l a p d policy there was some dispute about that but we certainly had evidence in the record l a p d policy on that very point as well as the declaration of the lien holder mr dearmer stated that this case li on whether the thirty day m pallant is a fourth amendment seizure i agree with them i heard mr durham are to say in so many words that for the thirty day m pound there is no fourth amendment justification and their argument that it's not a seizure well i guess i mean maybe you could address the point that i raised about conceiving of this as a temporary civil forfeiture why is that not the right way to conceive of it and if we do so why is that render it per se unreasonable and in the fourth i'm a well i don't like using the word forfeit your because california has a vehicle forfeiture statute fourteen so i'm  the concept of what this represents right and you would agree that that's basically what it is it's not a permanent deprivation of the only great it's not permanent it's temporary ok so just take that as the conception i don't quibble with the language and why is that not the right way to conceive procedure attached to it this doesn't have that and you haven't brought a due process claim so why isn't that the end of your case the way you framed the complaint it's solely based on the fourth amendment because the fact that if one could say this complies with you process doesn't answer the fourth amendment question that's what i'm trying to get you to answer so why is it per se unreasonable under the fourth amendment to impose a temporary civil forfeiture of thirty days as punishment does a deterrent mechanism for the underlying offense that we're dealing with here the rule is police don't seize property to punish to penalize to deter they seize property for a the fourth amendment interest why if we conceive of this as a temporary civil forfeiture why is it per se unreasonable under the fourth amendment i think it's unfair for you to bar me from making the point because the fact that there is judicial review process here distinguishes this temporary forfeiture from the forfeiture cases that we know about so that's what distinguishes setting of this case now she cannot bring a claim on this complaint for compensation for due process violation on this complaint she can't do it because as you we conceded you know that we don't bring in due process claim but the fact that there  and they also give notice to the vehicle owner you can have and adversary hearing in front of the court to contest this finding of justification for them even in how to interject because that does this position you're now taking in response to judge what for it seems at odds with the position you took when i asked you whether you needed probable cause for the continued detention and you said yes and then when i asked about some court order that might come down you indicated you needed probable cause so i don't see a hearing that might occur with respect to a temporary forfeiture as doesn't necessarily have anything to do with probable cause so my question is do you need probable cause in your view for the continued retention of the copper answer is yes and i don't see an inconsistency between what i'd earlier state to you your honor and wit because whether it's a warrant application where is his words is gone adversarial proceeding obviously versus an adversarial hearing the standard still probable cause and in this case the probable cause would have to be probable cause that the vehicle owner right that one has committed a crime that justifies the impoundment for thirty days so as i say that can be established a probable cause me established on i basically a warrant application and it can also be contested at an adversarial hearing which it is per statute when it comes to bennett taxies this that would you still have the case the fourth amendment claim probably fails at that point i would then be so you're not claiming that this has to be an adversary proceeding to get a a period of court literally in a few hours since they can do that so quickly get a warrant quickly if you build into an adversarial hearing process that's going to drag it out  but let me say what the claim in this case would be if they had secured a warrant authorizing the thirty day impound you know x party then the claim would be there was a due process violation because there's no adversarial proceeding to contest that finding a probable cause for the thirty day impound and we would submit at that point under due process there needs to be an adversarial hearing claim you're making in this case but were right to make the claim the argument would be that's not does not satisfy proceed to process because it's not essentially a fair trial you know to pass judgment on whether or not it was lawful that would be the argument but ok all right thank you thank you