2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-9-2008

USA v. Smith

Precedential or Non-Precedential: Precedential

Docket No. 06-3112

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-3112

 

 

UNITED STATES OF AMERICA

v.

DEVON MONROE SMITH,

Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 05-00257)

Honorable Eduardo C. Robreno, District Judge

 

Submitted under Third Circuit LAR 34.1(a)

March 7, 2008

BEFORE: FISHER, GREENBERG, and ROTH, Circuit Judges

(Filed: April 9, 2008)

 

Patrick L. Meehan

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106
2

K. Kenneth Brown, II

Special Assistant United States Attorney

50 North Duke Street

Lancaster, PA 17602

 Attorneys for Appellee

Christopher D. Warren

1500 Walnut Street, Suite 1500

Philadelphia, PA 19102

 Attorney for Appellant

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on an appeal from

a final judgment of conviction and sentence in this criminal case

entered on June 6, 2006, following appellant Devon Smith’s

conditional plea of guilty after the District Court denied his

motion to suppress. The circumstances of the case are

straightforward. On June 8, 2004, Lancaster, Pennsylvania,

police officers Christopher Laser and Richard Heim while on

patrol observed Smith sitting in the passenger seat of an

automobile that Danny Santiago was operating. Heim

recognized Smith and was aware that there was an arrest warrant

outstanding for him. Consequently, the officers stopped the

vehicle and arrested Smith. Subsequently, Laser and Santiago

got into an altercation during which Smith fled the scene. After

additional officers arrived the police recaptured Smith and

rearrested him. They also arrested Santiago at the scene of the

stop.

The police did not know who owned the vehicle for

neither Smith nor Santiago claimed to own it. Moreover,
1

At the suppression hearing that we will describe below

Laser testified that at some point after the search he discovered that

Smith’s girlfriend owned the vehicle. 

2

In the District Court Smith unsuccessfully argued that his

statement should be suppressed as the “fruit of the poisonous tree.”

Supp. app. at 41. In light of the result that we reach here that the

seizure and search were lawful, there was no “poisonous tree.”

3

Santiago said he did not know who the owner was, its

registration papers were not available, and Santiago did not

know the location of the registration papers.1

 Furthermore,

inasmuch as the police arrested both men neither could drive the

vehicle which had no other occupants. Moreover, there was no

one else available at the scene to take its possession. 

These circumstances created a problem for Laser and

Heim because they believed that they should not leave the

vehicle at the place where they stopped it inasmuch as the

conditions in the area led them to believe that if they did so the

vehicle might be damaged, vandalized, or stolen. Therefore,

Heim impounded the vehicle and drove it to the police station. 

At the station during a routine warrantless inventory search of

the vehicle, Laser found a loaded semi-automatic handgun in its

glove department. He then interrupted the search which he

resumed after he obtained a search warrant for the vehicle. 

Subsequently, on the same day, in a statement that he has not

renounced as untruthful, Smith told police detectives that he had

loaded the weapon and placed it in the glove department.2

 He

also told them that he knew that he was a convicted felon and

was aware that because of that status he was not lawfully

permitted to possess the weapon.

On May 3, 2005, a grand jury indicted Smith for unlawful

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g) and 924(c). Smith responded to the indictment

by filing a motion to suppress the handgun as evidence. The

District Court held an evidentiary hearing on the motion at

which Heim, who was in Iraq, without objection by Smith,

testified by video conference and Laser testified in person. 
3

The District Court also held that the impoundment was

lawful under Pennsylvania law and inasmuch as Smith predicates

his argument on this appeal solely on the Fourth Amendment and

does not contend that the District Court’s state law analysis was

wrong we do not review that analysis. Of course, we could not

uphold the impoundment merely because it was lawful under state

law as it still would have to meet Fourth Amendment standards and

the state law might not satisfy them. See United States v. Coccia,

446 F.3d 233, 238 (1st Cir. 2006).

4

Thereafter, by an order entered October 26, 2005, accompanied

by a memorandum opinion, the court denied the motion to

suppress. In its opinion the District Court held that the

impoundment was lawful because Heim impounded the vehicle

pursuant to police community caretaking function authority and

Lancaster police use a standardized routine that they followed

here to determine whether to impound the vehicle. The court

further held that the impoundment was “not arbitrary or

unreasonable.”3

 We quote judicial authority describing the

parameters of the community caretaking function authority

below.

On November 8, 2005, Smith entered a conditional plea

of guilty to the indictment but preserved his right to appeal from

the denial of his motion to dismiss. See Fed. R. Crim. P.

11(a)(2); United States v. Zudick, 523 F.2d 848, 852 (3d Cir.

1975). The District Court accepted the plea of guilty and later

sentenced Smith to a 192-month custodial term to be followed

by five years of supervised release. It also imposed a $2,000

fine.

Smith appeals making the following argument:

The decision by a police officer to impound

a vehicle must be exercised pursuant to

standardized criteria or the seizure is

unconstitutional. The testimony presented in this

case established that Officer Heim was exercising

his discretion when he opted to impound the

vehicle and that there were no standard policies or
5

procedures which circumscribed or otherwise

limited that discretion. The district court thus

clearly erred when it found as a fact that the officer

was acting pursuant to a standardized routine when

he decided to impound the vehicle. Accordingly,

the evidence obtained as a result of the

unconstitutional seizure of the vehicle should have

been suppressed.

Appellant’s br. at 12. Significantly, Smith does not contend that

even if the impoundment was lawful the inventory search was

not lawful. Consequently, we focus on the validity of the

impoundment rather than the validity of the actual search of the

vehicle.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. 

As we often have indicated, we exercise the deferential clear

error standard in reviewing a district court’s factual findings but

exercise plenary review over its determination of legal issues. 

See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). In

this case there is a sharp dispute of facts with respect to whether

Heim was acting pursuant to a standardized routine when he

decided to impound the vehicle. On the one hand, the

government contends that, as the District Court held, the police

followed a standardized routine in impounding the vehicle. On

the other hand, Smith contends that Heim, rather than following

a standard impoundment routine, simply exercised his discretion

when impounding the vehicle as the Lancaster Police

Department did not have standard policies or procedures which

circumscribed or otherwise limited that discretion. Nevertheless

we need not determine whether the District Court clearly erred

on the basis of the record before it when it found that Heim was

acting pursuant to a standardized routine when he impounded the

vehicle because even if the court’s finding was erroneous, for the

reasons we will set forth we are satisfied that the impoundment

was lawful. Thus, we decide this case assuming, as Smith
4

The government indicates in its brief that after the District

Court adjudicated this matter and Smith appealed, the government

itself discovered that the Lancaster Police Department has a written

policy that the brief does not describe regarding the impounding

and towing of vehicles. The parties apparently never brought this

policy to the attention of the District Court and thus that court was

not aware of the policy either when entering the order now on

appeal or at any later date. Nevertheless, neither party has moved

to remand the case to the District Court so that it might reconsider

its decision in light of the policy and neither has moved to expand

the record on this appeal to include this policy and, accordingly, we

do not know what the policy is. We will not remand the case to the

District Court to reconsider its decision in light of the policy and

we have not expanded the record on our own motion to include the

policy as Heim cannot have relied on the policy when he

impounded the vehicle as he was not aware of it.

6

contends, that the Lancaster Police Department did not have a

standard policy regarding the impounding and towing of

vehicles.4

III. DISCUSSION

There was considerable evidence at the suppression

hearing explaining the Lancaster Police Department’s policy or

lack of policy governing the impounding of vehicles and why the

police impounded the vehicle in which Smith was riding. It is

understandable that inasmuch as Smith challenges the District

Court’s factual finding that Heim acted pursuant to that policy,

in his brief he quotes the evidence at length. Even though we

accept for purposes of this appeal Smith’s contention that the

District Court erred when it found that Heim acted pursuant to a

standardized procedure when he impounded the vehicle we, too,

will quote the evidence at length as it bears on the

reasonableness of his action when he impounded the vehicle. 

Heim testified as follows:

Q. So you would have been the individual who
5

The government does not contend that Smith does not have

standing to challenge the impoundment because it stipulated in the

District Court that even though he did not testify at the suppression

hearing, if he had done so he would have explained that his

girlfriend, who was the owner of the vehicle, had lent it to him at

the time of the arrest. See United States v. Baker, 221 F.3d 438,

442 (3d Cir. 2000).

7

decided to impound the vehicle. Right?

A. More than likely, yes.

Q. Why was the vehicle impounded?

A. Let me check my report here. Oh, actually,

the reason the vehicle was taken into custody that

day is because neither the driver nor Mr. Smith

was the owner of the vehicle and we were going to

try and contact the registered owner.[5]

Q. Why did you have to impound the vehicle

to contact the registered owner?

A. Because a lot of times we leave vehicles on

the street and they end up being stolen later down

the road. A lot of times these vehicles are loaned

out for drugs and duplicate keys are made. It was

just to ensure that the rightful owner gets the

vehicle back.

Q. Is there any policy with respect to

impoundment of vehicles?

A. It’s not actually impoundment. I can’t say

that there are actually policies on impoundment. 

We do for other things concerning vehicles. Off

the top of my head I don’t know.
8

Q. So to your knowledge there is no standard

procedure with respect to impoundment of

vehicles. Is that right?

A. We have standard procedures for what we do with

the vehicles after we take custody of them. As far as

actually taking the vehicle initially, I can’t – like I said,

we have so many policies that it’s hard to remember. A

lot of times I will have to refer to the policy manual to

make a decision on something.

Q. Let me put it to you simply. Do you know

whether or not there is any standard procedure or

policy in the Lancaster City Police Department

with respect to the impoundment of vehicles?

A. No. I can’t say specifically that I know for

a fact.

Q. Does that mean that the officer at the scene

gets to make the decision as to whether or not a

vehicle is impounded?

A. Sometimes, yes, and sometimes a patrol

supervisor will be contacted depending on the

situation.

Q. But again, the officer or whoever is making

the decision has the discretion to decide whether or

not to impound a vehicle. Right?

A. Not always, no. If we’re talking about a

major crime – if it’s a homicide or something, then

that decision will be made by a supervisor or

detective. In this situation apparently it was me

who made the decision about it.

Q. But the point is, you have discretion in that

regard. Right? You can impound it or not

impound it, depending upon what you think is the

best thing to do. Correct?
9

A. Again, that discretion is based upon the

situation. In this situation this vehicle was

impounded by my discretion.

App. at 29-31.

Laser testified as follows:

Q. And what happened to the vehicle?

A. The vehicle itself was driven back to the

station by Sergeant Heim, brought in for

impounding. At that time we were unaware of

who the actual owner was, with neither subject

taking responsibility for the vehicle. And with

where it was parked, the location where it was out

[sic], was not a location where we had a tendency

to leave vehicles for non-residents in that area, due

to damage and vandalism. And also for our policy

at that point, the car was in our custody, so we had

a duty to care for it.

App. at 32.

Q. Okay. You also alluded under direct

examination to a ‘policy’ of the Lancaster City

Police Department to take vehicles into custody. 

Didn’t you?

A. No, it was for handling of vehicles that are

in our custody.

Q. Very well. So the policy that you are talking about

is after the car has been taken into custody, how you take

care of it and handle it. Right?

A. That is correct.

Q. Okay. And that would be basically the
6

Of course, the government now tells us that this is not so.

See supra note 4.

10

written policy that has been marked SH1, right?

A. Yes.

Q. So that, just so we are clear, that is the

policy you were referring to under direct

examination?

A. Yes.

App. at 33.

The government quotes little additional testimony in its

brief urging us to uphold on the clear error standard the District

Court’s finding that Heim acted pursuant to a standardized

routine when he impounded the vehicle. Rather, it seems to mix

evidence tending to demonstrate the reasonableness of Heim’s

decision to impound the vehicle with evidence regarding the

presence of a standard governing impoundment. Thus, the

government tells us, quoting from Laser’s testimony, that the

vehicle was located at a place that the police did not have “a

tendency to leave vehicles for non-residents in that area, due to

damage and vandalism.” Supp. app. at 12. It then contends that

Laser’s testimony only makes sense when he is “understood to

be explaining that the police routinely impound vehicles in this

same area, or areas like it, when no one is available to drive the

car away.” Appellee’s br. at 31. Overall, after considering all of

the testimony, we are of the view that the District Court’s

finding that Heim acted pursuant to a standardized procedure

when he impounded the vehicle probably is erroneous. But we

do not make a definitive determination on the point. Instead, as

we have indicated that we will do, we will decide the case on the

premise on which Smith presents it, i.e., the Lancaster Police

Department did not have a standard policy regarding the

impoundment and towing of vehicles when Heim impounded the

vehicle.6
11

The question that we resolve on this appeal is,

surprisingly, apparently open in this Court for the government

recites in its brief that it “is unaware of any Third Circuit

precedent directly addressing the precise legal claim presented

by Smith,” i.e., the constitutionality of a vehicle impoundment

under the Fourth Amendment in circumstances in which there is

no standardized policy regarding the impoundment and towing

of vehicles. Appellee’s br. at 23. We, too, are not aware of any

direct precedent in this Court on the point and Smith does not

cite any. There is, however, precedent on the issue in other

courts, most significantly in the Supreme Court. Indeed, Smith

primarily relies on Colorado v. Bertine, 479 U.S. 367, 107 S.Ct.

738 (1987). In Bertine, a police officer arrested Bertine for

driving his van under the influence of alcohol. Id. at 368, 107

S.Ct. at 739. After the arrest but before a tow truck arrived at

the scene a second officer acting in accordance with standard

local police procedures made an inventory search of the vehicle

and found narcotics. Id. at 370-71, 107 S.Ct. at 740-41. In the

ensuing trial court proceedings the court suppressed the evidence

and, after the state’s unsuccessful appeal to the Colorado

Supreme Court, the case reached the Supreme Court on the issue

of the validity of the search under the Fourth Amendment.

The Supreme Court, after rejecting Bertine’s challenges

predicated on other theories that we need not recount, reached

his final argument which it described and disposed of as follows:

Bertine finally argues that the inventory

search of his van was unconstitutional because

departmental regulations gave the police officers

discretion to choose between impounding his van

and parking and locking it in a public parking

place. The Supreme Court of Colorado did not

rely on this argument in reaching its conclusion,

and we reject it. Nothing in [South Dakota v.

Opperman, 428 U.S. 364, 96 S.Ct. 3092 (1976)] or

[Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605

(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
7

Smith also cites and quotes the Supreme Court’s opinion in

Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632 (1990), in which the

Court held that inasmuch as the police “had no policy whatever

with respect to the opening of closed containers encountered during

an inventory search,” the inventory search involved there in which

the police found marijuana in a suitcase “was not sufficiently

regulated to satisfy the Fourth Amendment.” Id. at 5, 110 S.Ct. at

1635. Clearly, Wells, which involved an inventory search, is

distinguishable from our case involving an impoundment and thus

is of little use here. Similarly, United States v. Salmon, 944 F.2d

1106 (3d Cir. 1991), which the government but not Smith cites, is

not helpful here as it deals with the need for standardized criteria

or an established routine for inventory searches. See id. at 1119-

24.

12

activity. Here, the discretion afforded the Boulder

police was exercised in light of standardized

criteria, related to the feasibility and

appropriateness of parking and locking a vehicle

rather than impounding it. There was no showing

that the police chose to impound Bertine’s van in

order to investigate suspected criminal activity.

Id. at 375-76, 107 S.Ct. at 743 (footnote omitted).7

Smith also relies on United States v. Duguay, 93 F.3d 346

(7th Cir. 1996). In Duguay, as here, the police made a vehicle

inventory search following an impoundment. In the inventory

search the police recovered cocaine which led to Duguay’s

prosecution for possession of cocaine with intent to distribute. 

Id. at 349. Duguay, who was a son of the vehicle’s title holder,

see id. at 353, moved in the district court to suppress the cocaine

on Fourth Amendment grounds, challenging both the

impoundment and the inventory search. The district court

denied the motion and Duguay ultimately was convicted and

sentenced. 

Duguay appealed and the Court of Appeals for the

Seventh Circuit reversed. Though to a large extent the court of

appeals in its opinion focused on the validity of the inventory
8

Smith contends that “the community care-taking issue has

no bearing on the question of whether the decision to impound the

vehicle was made pursuant to standard criteria.” Appellant’s br. at

10 n.2. We agree but we only are referring to it on the

reasonableness issue.

13

search it also held that the police “did not articulate a

constitutionally legitimate rationale for impounding Duguay’s

car.” Id. at 352. Moreover, the court indicated that “[w]hile a

written protocol is not sine qua non” for a lawful impoundment,

the court “was not satisfied that the . . . Police Department

employs a standardized impoundment procedure.” Id. at 351. 

The court indicated that “[t]he touchstone of Fourth Amendment

analysis is ‘reasonableness.’” Id. at 353. It also said that “[t]he

decision to impound an automobile, unless it is supported by

probable cause of criminal activity, is only valid if the arrestee is

otherwise unable to provide for the speedy and efficient removal

of the car from public thoroughfares as parking lots.” Id.

In Duguay the court of appeals, in reversing the order

denying the motion to suppress, pointed out that the police

impounded the vehicle even though Duguay’s girlfriend who had

driven the vehicle to the place of his arrest, and remained at the

scene, “had possession of the keys, and was prepared to remove

the car from the street.” Id. Moreover, another son of the title

holder, Duguay’s brother, also was present at the time of the

arrest. Id. These circumstances led the court to indicate that the

impounding of a vehicle for caretaking purposes “without regard

to whether the defendant can provide for its removal is patently

unreasonable” and that “if the purpose of impoundment is not

investigative, . . . in the absence of probable cause” it did “not

see what purpose denying possession of the car to a passenger, a

girlfriend, or a family member could possibly serve.”8

 Id.

We recognize that some language in Duguay supports

Smith’s argument. After all, the Duguay court was troubled

because the police department there did not employ “a

standardized impoundment procedure.” Id. at 351. Overall,

however, Duguay arguably, at least, supports a determination

that the impoundment here was lawful under the Fourth
14

Amendment. To start with the court emphasized that the

“touchstone” of a Fourth Amendment analysis is

“reasonableness.” How could the touchstone be anything else

for the Fourth Amendment, in terms, prohibits “unreasonable”

searches and seizures? Thus, the adoption of a standardized

impoundment procedure merely supplies a methodology by

which reasonableness can be judged and tends to ensure that the

police will not make arbitrary decisions in determining which

vehicles to impound. These reasons for the adoption of a

standardized impoundment procedure are compatible with the

views of the Court of Appeals for the First Circuit which it set

out in United States v. Coccia, a case that we discuss below, that

under Bertine “an impoundment decision made pursuant to

standardized procedures will most likely, although not

necessarily always, satisfy the Fourth Amendment.” 446 F.3d

233, 238 (1st Cir. 2006). Conversely, it should follow that a

decision to impound a vehicle contrary to a standardized

procedure or even in the absence of a standardized procedure

should not be a per se violation of the Fourth Amendment.

Of course, on the facts Duguay hardly is helpful to Smith. 

In Duguay if the police had not impounded the vehicle,

Duguay’s girlfriend, who had driven the car prior to its

impoundment, could have driven the car away. Moreover, the

police in Duguay did not have to concern themselves with

identifying the owner of the vehicle and contacting him as the

defendant was the owner’s son and another son of the owner,

who apparently was not arrested, was present when the police

arrested Duguay.

There are two quite recent cases dealing with the issue at

hand, Coccia and United States v. Proctor, 489 F.3d 1348 (D.C.

Cir. 2007), reflecting a conflict with respect to its resolution

between the Courts of Appeals for the First and District of

Columbia Circuits. Indeed, Proctor indicated that in that case

the government invited it “to adopt the First Circuit’s conclusion

[in Coccia] that an impoundment is reasonable so long as it

‘serves the government’s “community caretaking” interests’” but

that it “decline[d] the invitation.” Id. at 1354. We will review

these conflicting cases in detail in the order that the courts

decided them.
15

Coccia was indicted and then convicted at a jury trial for

possession of a firearm while subject to a domestic restraining

order in violation of 18 U.S.C. § 922(g)(8). Coccia, 446 F.3d at

236-37. The evidence showed that the police seized Coccia’s

vehicle when he arrived at his psychiatrist’s premises in an upset

and hostile mental state and police and FBI agents were waiting

for him. Id. at 236. After his vehicle was towed away the police

searched it, initially without a warrant and then, after they found

double-edged knives and a rifle case in the vehicle, with a

warrant. Id. During the renewed search with a warrant the

police found an assault rifle and approximately 1,300 rounds of

ammunition. 

In the district court Coccia moved to suppress the firearm

as evidence on the ground that the police violated his Fourth

Amendment rights by seizing the vehicle as he could have made

other arrangements to remove it from the psychiatrist’s

driveway, a contention that he supported with evidence at the

hearing on his motion. Id. at 236-37. The district court denied

the motion as it held that the police’s towing decision was

reasonable in the circumstances confronting them. Id. at 237.

On appeal, although Coccia recognized that there is a

community caretaking exception to the requirement of the

Fourth Amendment that seizures be authorized by warrant, he

contended that the exception was inapplicable “because the

government failed to establish that the car was towed from [the

psychiatrist’s] property pursuant to standard operating

procedures.” Id. at 238. Coccia understandably relied in part on

Bertine in arguing that the decision to impound must be made

“according to standardized criteria.” In Coccia the court

described the community caretaking exception as follows: 

The community caretaking exception recognizes

that the police perform a multitude of community

functions apart from investigating crime. In

performing this community caretaking role, police

are ‘expected to aid those in distress, combat

actual hazards, prevent potential hazards from

materializing and provide an infinite variety of

services to preserve and protect public safety.’ 
16

United States v. Rodriguez-Morales, 929 F.2d 780,

784-85 (1st Cir. 1991) . . . . [T]he community

caretaking function encompasses law

enforcement’s authority to remove vehicles that

impede traffic or threaten public safety and

convenience. See S. Dakota v. Opperman, 428

U.S. 364, 368-69, 96 S.Ct. 3092 (1976). 

Id. at 238.

The court of appeals rejected Coccia’s argument as it read

Bertine “to indicate that an impoundment decision made

pursuant to standardized procedures will most likely, although

not necessarily always, satisfy the Fourth Amendment.” Id. The

court of appeals pointed out that courts frequently have held

“that impoundments of vehicles for community caretaking

purposes are consonant with the Fourth Amendment so long as

the impoundment decision was reasonable under the

circumstances.” Id. at 239. The court then reviewed the

circumstances of the impoundment and held that even in the

absence of a standardized impoundment procedures the search

was reasonable. Id. at 240.

Proctor’s result was very different from that in Coccia. In

Proctor the defendant Proctor was convicted at a jury trial for

possession of a firearm and ammunition by a felon in violation

of 18 U.S.C. § 922(g)(1). 489 F.3d at 1349. The police initially

arrested Proctor for several motor vehicle offenses including

operating a motor vehicle while intoxicated and driving under

the influence of alcohol. Id. at 1350. Standard police procedure

required the officers to impound his vehicle, apparently because

its owner was not present and no one else was available to take

custody of it. Id. At the scene of the arrest the officers

conducted an inventory search of the vehicle and recovered a

pistol from a bag in the trunk. Id. Proctor moved to suppress the

evidence, contending that both the impoundment and the

inventory search violated the Fourth Amendment. Id. at 1351. 

After the court denied his motion and he was convicted and

sentenced he appealed.

On the appeal Proctor argued that both the impoundment
17

and search of his vehicle violated the Fourth Amendment as the

officers violated police department procedures in impounding

and searching the vehicle. The court of appeals agreed with

Proctor and reversed his conviction. Citing Bertine, the court of

appeals indicated that the “Supreme Court has suggested that a

reasonable, standard police procedure must govern the decision

to impound.” Id. at 1353. It also indicated, citing and quoting

Duguay and United States v. Petty, 367 F.3d 1009, 1012 (8th

Cir. 2004), that “[a]t least two of our sister circuits have held that

the decision to impound must be made pursuant to a standard

procedure.” Proctor, 489 F.3d at 1353. As we already have

indicated, the Proctor court took note of Coccia but declined the

government’s invitation to adopt Coccia’s conclusion that an

impoundment to serve community caretaking interests is

reasonable even if it does not follow standardized procedures. 

Rather, it held that “if a standard impoundment procedure exists,

a police officer’s failure to adhere thereto is unreasonable and

violates the Fourth Amendment.” Id. at 354. Overall, we

understand Proctor to require that to satisfy the Fourth

Amendment a community caretaking impoundment must be

based on (1) a reasonable standard police procedure governing

decisions on whether to impound vehicles and (2) and the police

must follow the procedure in the case involved.

In Proctor there were standards governing impoundment

that in the circumstances surrounding Proctor’s arrest required

that unless he consented to the impoundment he had to be given

an opportunity to make his own arrangements to remove the

vehicle. The police, however, did not give him the opportunity

to make those arrangements as they believed that inasmuch as no

one else was present to remove the vehicle they had to remove it. 

Consequently, the court of appeals held that the impoundment

violated the standard procedures and thus the Fourth

Amendment.

In the face of the precedent that we have cited we must

decide which of the two lines of cases to follow, the Coccia line

focusing on the reasonableness of the vehicle impoundment for a

community caretaking purpose, or the Proctor line favoring the

more structured approach to the validity of such impoundments

under the Fourth Amendment requiring that there be
9

There is no doubt that in our case the impoundment was for

community caretaking rather than investigative purposes for which

probable cause would have been required. In this regard, we point

out that there is no suggestion in the record that the police believed

that the vehicle had been stolen or had been used in the

commission of a crime. 

18

standardized police procedures governing impoundments that the

police follow.9

 As we already have intimated we think that the

Coccia outcome is correct and the facts in this case demonstrate

why. Here the police stopped a vehicle with two occupants both

of whom they then arrested and thus who could not drive the

vehicle. The area in which they stopped the vehicle was one in

which parked vehicles were subject to being damaged,

vandalized, or stolen. Neither occupant owned the vehicle and

the police did not know who did own it and, unless the police

moved the vehicle, they would have had to leave it where they

stopped it in a dangerous area and, accordingly, the vehicle

would have been subject to being damaged, vandalized, or

stolen. Indeed, Laser was so concerned about the situation that

he explained that he believed the police had a “duty” to take care

of the vehicle.

In view of the circumstances here we believe that it

hardly would be possible to make a plausible argument that

Heim acted unreasonably in impounding and removing the

vehicle. Indeed, while we will not go so far as to suggest that

the police would have been irresponsible if Heim had not

removed the vehicle we recognize that a legitimate argument

could be made that they would have been.

In reaching our result we have not overlooked that, as we

indicated above, it may be desirable that the police execute

impoundments for community caretaking purposes pursuant to

standardized procedures because the requirement that they do so

will tend to encourage the police to avoid taking arbitrary action. 

Therefore, we certainly do not suggest that police departments

should not adopt standard impoundment policies. But the Fourth

Amendment cannot be the foundation for an equal protection

requirement that the police must have standardized
19

impoundment procedures because the amendment does not have

an equal protection component. Thus, a reasonable

impoundment does not become unreasonable merely because the

police do not impound all vehicles found in similar

circumstances any more than an unreasonable impoundment

becomes reasonable merely because all vehicles in similar

circumstances are impounded. Moreover, Smith does not raise

Fourteenth Amendment equal protection arguments.

Finally, we point out that the requirement that a

community caretaking impoundment be made pursuant to a

standard police procedure could lead to untoward results. For

example, the applicable standards may have been set forth in

regulations that have expired and, perhaps through oversight, not

have been renewed. Furthermore, a challenged impoundment

may have been in a jurisdiction in which impoundments are so

rare that the authorities within it quite reasonably never have

seen any need to adopt impoundment standards. Moreover, the

standards might not deal with all the situations that could arise, a

point that the Coccia court made. Coccia, 446 F.3d at 239. 

IV. CONCLUSION

Overall we think that it is best that we judge the

constitutionality of a community caretaking impoundment by

directly applying the Fourth Amendment which protects people

“against unreasonable searches and seizures.” U.S. Const.

Amend. IV. Inasmuch as the impoundment here was reasonable

and Smith does not challenge the inventory search that followed

the impoundment, we will affirm the order denying the motion to

suppress and the judgment of conviction and sentence entered

June 6, 2006.