Opinions of the Colorado Supreme Court are available to the 1 public and can be accessed through the Judicial Branch’s homepage at 2 http://www.courts.state.co.us

. Opinions are also posted on the 3 Colorado Bar Association’s homepage at http://www.cobar.org

. 4 5 ADVANCE SHEET HEADNOTE 6 April 16 , 2018 7 8 2018 CO 27 9 10 No. 1 6SC922 , People v. Brown
— Inventory Sea rch
— Impoundment
. 11 12 T h e People petitioned for review of the court of appeals’ judgment reversing 13 Brown’s drug

- related conviction on the ground that his motion to suppress should have 14 been granted

. See People v. Brown , 2016 COA 150, __ P.3d __. The district court found 15 that the contraband in question was discovered during an inventory search of the 16 defendant’s vehicle, the conduct of which was within the officers’ discretion according 17 to the policies and procedures of the Aurora Police Department , even though they had 18 already decided to issue a summons rather than arrest the defendant for driving with a 19 suspended license. By contrast, the court of appeals found that in the absence of an 20 arrest, seizing the defendant’s vehicle so as to provoke an inventory of its contents 21 could not be justified as an exercise of the police caretaking function, and in the absence 22 of any other recognized exception to the probable cause and warrant requirements of 23 the Fourth Amendment, violated its prohibition against unreasonable searches and 24
seizures. 25 The supreme court affirms the judgment of the court of appeals b ecause the 26 record fails to demonstrate that seizure of the defendant’s vehicle was justified as an 27exercise of the police caretaking function or was otherw ise reasonable within the 1 meaning of the Fourth Amendment, regardless of local ordinances or police policies 2 and procedures broad enough to grant the officers discretion to impound the vehicle of 3 a driver merely summoned rather than arrested for driving wi th a suspended license

. 41 2
3 The Supreme Court of the State of Colorado 4 2 East 14 th Avenue • Denver, Colorado 80203 5
2018 CO 27 6 Supreme Court Case No. 16SC922 7 Certiorari to the Colorado Court of Appeals 8 Court of Appeals Case No. 14CA959 9 Petitioner : 10 The People of the State of Colorado , 11

v. 12 Respondent : 13 Carl A. Brown

. 14 Judgment Affirmed 15 en banc 16 April 16, 2018 17 18 Attorneys for Petitioner : 19 Cynthia H. Coffman, Attorney General 20 Carmen Moraleda, Assistant Attorney General 21 Denver, Colorado 22 23 Attorneys for Respondent : 24 Douglas K. Wilson, Public Defender 25 Rachel K. Mercer, Deputy Public Defender 26 Denver, Colorado 27 28 29 30 31 32 33 34 35 JUSTICE COATS delivered the Opinion of the Court. 362

¶1 Th e People petitioned for review of the court of appeals’ judgment reversing
Brown’s drug

- related conviction on the ground that his motion to suppress should have been granted

. See People v. Brown , 2016 COA 150, __ P.3d __. The district court found
that the contraband in question was discovered during an inventory search of the defendant’s vehicle, the conduct of which was within the officers ’ discretion according to the policies and procedures of the Aurora Police Department, even though they had already decided to issue a summons rather than arrest the defendant for driving with a suspended license. By contrast, the court of appeals found that in the absence of an
arrest, seizing the defendant’s vehicle so as to provoke an inventory of its co ntents could not be justified as an exercise of the police caretaking function, and in the absence of any other recognized exception to the probable cause and warrant requirements of the Fourth Amendment, violated its prohibition against unreasonable searc hes and
seizures.
¶2 Because the record fails to demonstrate that seizure of the defendant’s vehicle was justified as an exercise of the police caretaking function or was otherwise
reasonable within the meaning of the Fourth Amendment , regardless of local
ord inances or police policies and procedures broad enough to grant the officers discretion to impound t he vehicle of a driver merely summoned rather than arrested for driving with a suspended license, the judgment of the court of appeals is affirmed.


### I.
¶3 Carl A. Brown was charged with and convicted of possession with intent to distribute a schedule II controlled substance, stemming from the discovery of crack3

cocaine during an inventory search of his vehicle. He was sentenced to ten years in the custody o f the Colorado Department of Corrections.
¶4 Prior to trial, he moved to suppre ss the contraband on the ground that the impoundment and inventory search of his vehicle violated the dictates of the Fourth Amendment. Following a hearing of the motion, at which the factual allegations of the stop, search, and arrest were largely undisputed, the district court entered its findings
of fact and conclusions of law. As pertinent to the issue before this court, the district court’s findings and the uncontested testim ony indicated the following.
¶5 Upon receiving an anonymous report of a suspicious person driving a gray BMW in the area, two Aurora police officers observed the defendant’s gray BMW fail to stop at a stop sign, pulled him over, and discovered that he was dri ving on a suspended
license. Although the officers decided to issue a summons and r elease him, pursuant to routine police procedure authorized by an Aurora ordinance, the officers nevertheless decided to impound his vehicle and, while waiting for the towi ng company, inventoried its contents, discovered a number of bags of crack cocaine, and thereafter
arrested him. With regard to the search of the defendant’s vehicle, the court concluded
that under these circumstances, Aurora police policies and procedures granted the officers the discretion to conduct an inventory search, and for that reason, the search

was not pretextual, even if the officers hoped to find evidence of a crime.
¶6 After rejectin g the prosecution’s assertion of waiver , the court of appeals found
that whether the department’s inventory procedure had been followed or not , the officers lacked justification for taking the vehicle into government custody in the first4

place. Reasoning that nothing in the record indicated the defendant could not lawfully provide for the vehicle himself, and thereby prevent it from becoming a public hazard or subjecting the police to liability for the loss of it or its contents , the intermediate appellate court concluded that the public function exception to the probable cause and warrant requirements of the Fourth Amendment had not been met and that compliance with department policies alone did not constitute such an exception. In the absence of proof th at the seizure of the vehicle fell within an exception to the Fourth Amendment

warrant requirement , the court found that the exclusionary rule required suppression of
the discovered items.
¶7 The People petitioned for a writ of certiorari.


### II.
¶8 I t is now well

- settled that the seizure of vehicles by the police for caretaking purposes, as well as an inventory of the contents of vehicles lawfully in government custody, can amount to reasonable searches and seizures within the meaning of the
Fourth Amendment without regard for either probable cause or a warrant. See
Colorado v. Bertine , 479 U.S. 367, 371 (1987) ; South Dakota v. Opperman , 428 U.S. 364,
373

– 74 (1976) ; People v. Vaughn , 2014 CO 71, ¶ 14, 334 P.3d 226, 230

. As the Supreme
Court has observed , th e “probable

- cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions , ” as distinguished from criminal investigations. Bertine , 479 U.S. at 371 (quoting Opperman , 428 U.S. at 370 n.5 )

. Rather, it is the purpose of protecti ng against danger or loss, or even false claims of loss, and the routine or standardized nature of the5

procedures by which the y are carried out , that account for the reasonableness of
seizures and subsequent inventory s earches conducted in furtherance of so - called “community caretaking functions

. ” Id. at 371 , 381.
¶9 Unlike the rationales for and limits of inventory searches of private property lawfully in government custody, the circumstances under which vehicles may become subject to impoundment by the government, implicating subsequent inventor y of their

contents , without suspicion that they themselves are connected to a crime, has received relatively little attention by the Supreme Court. As early as Cady v. Dombro wski , 413 U.S. 433 (1973), the Court noted that local police frequently engage in “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441

. However, i n addressing a search of the trunk of the car towed from the scene of the accident to a private garage in that case , the Court simply noted , with regard to the seizure of the car itself, that it “had been placed where it was by virtue of lawful police action.” Id. at 448. Similarly, in Opperman , in upholding the inventory search of a vehicle impounded for being illegally parked, the Court again simply noted that vehicles are frequently taken
in to police custody in the interests of public safety and community caretaking functions, and conclusorily found that “[t]he authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is be yond challenge.” Opperman , 413 U.S. at 369

. ¶10 In Colorado v. Bertine , for the first and only time, the Court addressed a challenge to the inventory search of a defendant’s vehicle on the basis of departmental6

regulations giving the seizing officers discreti on to impound the vehicle in the first place. See Bertine , 479 U.S. at 375

. In holding that nothing in its applicable case law prohibited the exercise of police discretion , as long as that discretion was exercised according to standard criteria and on th e basis of something other than suspicion of criminal activity, and in finding that the seizure of the defendant’s vehicle without probable cause in Bertine was not unconstitutional, for the reason that police discretion

was exercised in that case in light of standardized criteria related to the feasibility and appropriateness of parking and locking the vehicle rather than impounding it, the Court implied, or simply accepted as inherent in the notion of caretaking functions , that
a determination of the constitutional ly required reasonableness of seizing a vehicle, just as the reasonableness of inventorying the contents of the vehicle once lawfully seized , is dependent upon standardized criteria limiting police discretion. See id. at 375

– 76

. In
doin g so, the Court clarified a limitation on , or necessary condition of , the community caretaking exception to the warrant requirement; however, it just as clearly did not create a new exception for every seizure authorized by legislative or departmental

stan dardized criteria , as a result of that authorization alone

. ¶11 In rejecting Bertine ’s challenge to the policy granting police officers the discretion to choose whether to impound, the Court did not uphold the seizure simply because in exercising discretion, the officers complied with department policy, but rather for the

reason that the policy reasonably circumscribed the discretion of the individual officers by imposing sufficient limitations on their discretion to use the alternate procedure of parking and locking

. Id. at 375

– 76 , 376 n.7. Moreover , w ith regard to the scope of the7

inventory search itself, three justices, at least one of whom was required for the C ourt’s majority, joined a concurring opinion underscoring the importance of standardized proced ures stripping the inventorying officers of any discretion whatsoever. Id. at 376

– 77 (Blackmun, J., concurring). While the Court has given meaning to the term “community caretaking functions” largely by referencing examples of non

investigatory, routine administrative activities, rather than by attempting a comprehensive definition, see , e.g. , Opperman , 428 U.S. at 368

– 69 (stating that police may remove vehicles jeopardizing public safety and impeding the efficient movement of traffic) , it has nevertheless never implied in any way that searches and seizures conducted according to standardized criteria prescribed by departmental policies are reasonable within the meaning of the Fourth Amendment for that reason alone

. ¶12 In a passage heavily rel ied on by the People, and paraphrased by both this court and the court of appeals on several occasions, we attributed to Bertine the proposition
that in the absence of evi d ence showing that the police acted in bad faith or for the sole purpose of investiga tion, inventory searches conducted according to police department policies and procedures are generally considered reasonable. See Pineda v. People , 230 P.3d 1181, 1185 (Colo. 2010) ; see also Vaughn , ¶ 14, 334 P.3d at 230. In addition to the
fact that th is proposition is clearly a loose paraphrase of Bertine , and that Bertine itself appears to admit of a distin ction between standardized policies for the inventory of
vehicles already lawfully in police custody and standardized policies for the initial
seiz ure of vehicles , see Bertine , 479 U.S. at 372, 375, we prominently qualified our articulation of the proposition in question with the adverb “generally , ” and we have8

never relied on it to justify the lawfulness of a department polic y permitting the seizure of private property, as distinguished from the lawfulness of a procedure dictating the scope and manner of inventor ying lawfully seized property , cf

. Vaughn , ¶ 1 6 , 334 P.3d
at 230 (rejecting a challenge to the inventory of glove boxe s and containers); Pineda , 230 P.3d at 1185 (rejecting assertion of bad faith)

. In context, it was clearly never intended to suggest that in the absence of bad faith, every search conducted in compliance with

an inventory policy, much less every seizure e ffected in compliance with an impound policy, must be considered “ reasonable” within the meaning of the Fourth Amendment.
Cf. United States v. Taylor , 636 F.3d 461, 466 (8th Cir. 2011) (“ Moreover, we have rejected the argument that an impoundment is const itutional solely because [police] policy allows towing

. . . .”). Rather, the ultimate issue remains whether the impound ment and subsequent inventory serve a n administrative community caretaking function.
¶13 Because arresting a person stopped while driving a motor vehicle necessarily deprives him of the immediate custody and control of that vehicle, the question has not infrequently arisen under what circumstances t h e vehicle may be impounded and subjected to an inventory of its contents. See , e.g. , United States v. Sanders , 796 F.3d
1241 , 1247

– 48 (1 0th Cir. 2015) ( collecting and categorizing cases of arrested drivers from the federal circuits); cf

. Vaughn , ¶ ¶ 15

– 16, 334 P.3d at 230 (upholding seizure and
inv entory search of vehicle pursuant to department policy following arrest of driver
whose license had not only been suspended but who was not even the registered owner of the vehicle). The circumstances considered relevant in th ese cases have generally9

included such things as the time and location of the arrest, s ee , e.g. , United States v.
Torres , 828 F.3d 1113, 1120 (9th Cir. 2016) ( involving impoundment from an apartment complex not the defendant’s) ; Gombert v. Lynch , 541 F. Supp. 2d 492, 498

– 99 (D. Co nn. 2008) ( involving impound ment where driver was to be arrested for such a period of
time that vehicle m ight become a nuisance), proof of ownership of the vehicle, s ee , e.g. , Vaughn , ¶ 3, 334 P.3d at 228 ( involving impound ment where defendant was not the registered owner of the vehicle), and the availability of someone else to take custody
with the authorization of the arrestee , s ee , e.g. , United States v. Velarde , 903 F.2d 1163,
1166

– 67 (7th Cir. 1990) ( involving impound ment where none of the passengers had
valid l icenses and the owner was not available)

. Where the driver is , however, not arrested but merely cited for a driving violation, even for driving under suspension or
otherwise without a valid license , which would bar the driver from lawfully driv ing the vehicle away himself , he will not have been deprived o f the custody and control of his vehicle by any government action

. ¶14 With regard to a driver who remains in possession and control of his vehicle, it is
even more cle ar than the case of an arrested driver that justifying impoundment as an
exercise of a community caretaking function, so as to fall within that exception to the probable cause and warrant requirements of the Fourth Amendment, will be dependent upon the particular circumstances of the seizure in addition to the standardized policy or procedure. In light of the driver’s retained freedom of action, short of reason to
believe that he will be unable to make arrangements sufficient to prevent the vehicle
from “impeding traffic or threatening public safety and convenience,” Opperman , 42810

U.S. at 369, or that police action has rendered him unable to protect the vehicle or its
contents, even routine policies or procedures providing for impoundment may be
insuffic ient to demonstrate the reasonableness of a seizure in the absence of probable
cause of a crime , s ee United States v. Cervantes , 703 F.3d 1135, 1142 (9th Cir. 2012) ( “The fact that an impoundment complies with a state statute or police policy, by itself,
i s insufficient to justify an impoundment under the community caretaking exception.” ) ; 3 Wayne LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 7.3 (c) (5th

e d. 2017 ) (“[I] f the driver is only ticketed but cannot himself operate the car because of an expired license, impoundment of the vehicle is improper unless the driver is unable to provide for its custody or removal .” ) (internal quotation marks omitted).
¶15 The authority of police to act in furtherance of a community caretaking function does not originate from the same source as their authority to investigate criminal activity . Community caretaking is not concerned with potential criminal activity, but
rather with administration of the risk to public safety threatened by the vehi c le

. See
Miranda v. City of Cornelius , 429 F.3d 858, 863 (9th Cir. 2005)

. A lthough the officers may have reason to suspect that the driver will unlawfully drive the vehicle upon their departure, the community caretaking exception t o the probable cause and warrant requirements of the Fourth Amendment definitionally cannot support seizures on the
basis of suspicion that the driver has committed, is committing, or will commit a crime

. See Opperman , 428 U.S. at 370 n.5 ; see also Miran da , 429 F.3d at 866 ( “[T] he deterrence rationale is incompatible with the principles of the community caretaking doctrine. ”); United States v. Nickleberry , 164 F. Supp. 3d 1322, 1329 (D. Utah 2016) (“[L] aw11

enforcement ’ s claim that they were entitled to seize and search [the driver’s] car without a warrant in order to prevent any possible future instances of driving without insurance smacks of pretext and is insufficient to overcome the warrant requi rement of the Fourth Amendment.”); People v. Torres , 188 Cal. App. 4th 775, 792 (2010) ( holding that there must be a reason to impound a car other than temporarily depriving the driver of its use); State v. Gonzales , 236 P.3d 834, 840 ( Or. Ct. App. 2010) (“[W] e reject
the state ’ s suggestion that leaving the car accessible to defendant would have created a threat to public safety. ”)

. 

### III.
¶16 At the suppression hearing, the prosecution offered no evidence to suggest that any of the factors or purposes for which a community caretaking exception has been recognized sup ported the impoundment of the defendant’s vehicle. There was no suggestion that t he car was impeding traffic or threatening public safety and convenience where it was stopped, much less that it was inoperable or otherwise unable to be safely and legally removed by a licensed party , even if that had been the case

. Quite the contrary, the prosecution relied entirely on the fact that the vehicle was impounded pursuant to departmental procedure, based on an Aurora ordinance granting police officers the discr etion to impound a vehicle being driven by someone whose driver’s license had been suspended. To the extent the testimony of the officer who ordered the impoundment reflected any reason other than policy, it suggested only
that the defendant was not offer ed an option to have the car left at the scene or towed because he had already demonstrated that he would drive on a suspended license.12

¶17 Similarly, before this court, the People rely expressly on the assertion that seizing a vehicle in compliance with polic ies or procedures permitting as much is sufficient to bring it within an exception to the probable cause and warrant requirements of the Fourth Amendment. Alternatively they assert that impoundment of the vehicle of someone driving on a suspended license necessarily falls within the purposes of poli ce caretaking functions by preventing a presumptively unsafe driver from endangering the public. Because we have rejected both of these rationales and the People assert no other exception to the Fourth Amendmen t probable cause requirement, we must conclude that the impoundment of the defendant’s vehicle in this case and, therefore, its subsequent inventory violated the Fourth Amendment prohibition against
unreasonable searches and seizures.


### IV.
¶18 Because the recor d fails to demonstrate that seizure of the defendant’s vehicle was justified as an exercise of the police caretaking function or was otherwise reasonable within the meaning of the Fourth Amendment, regardless of local ordinances or police policies and proc edures broad enough to grant the officers discretion to impound the vehicle of a driver merely summoned rather than arrested for driving with a suspended license, the judgment of the court of appeals is affirmed.