PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant, 

v. 

BEVERLY KIM SANDERS, 

 Defendant - Appellee. 

No. 14-1296 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:14-CR-00138-PAB-1)

_________________________________ 

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States 

Attorney, with him on the briefs), Office of the United States Attorney, Denver, 

Colorado, for Plaintiff-Appellant. 

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public 

Defender, with him on the brief), Office of the Federal Public Defender, Denver, 

Colorado, for Defendant-Appellee. 

_________________________________ 

Before LUCERO, BACHARACH, and McHUGH, Circuit Judges. 

_________________________________ 

LUCERO, Circuit Judge. 

_________________________________ 

We consider the constitutionality of a decision to impound a vehicle based on 

a community-caretaking justification. Such impoundments have been the topic of 

substantial debate and disagreement among our sibling circuits. In this case, police, 

FILED 

United States Court of Appeals

Tenth Circuit 

August 7, 2015

Elisabeth A. Shumaker 

Clerk of Court

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for reasons not articulated in any policy, impounded a vehicle lawfully parked in a 

private lot after arresting its driver as she exited a store. They made no meaningful 

attempt to allow the driver, her companion, or the owner of the parking lot to make 

alternative arrangements. The district court granted a motion to suppress contraband 

found in the vehicle, and the United States filed an interlocutory appeal. After 

surveying Supreme Court and Tenth Circuit precedent as well as persuasive authority 

from other circuits, we hold that when a vehicle is not impeding traffic or impairing 

public safety, impoundments are constitutional only if guided by both standardized 

criteria and a legitimate community-caretaking rationale. We conclude that the 

impoundment at issue in this case is unconstitutional for two reasons: it was not 

guided by standardized criteria, and was not justified by a legitimate communitycaretaking rationale. Under our holding, either failure alone would be sufficient to 

establish unconstitutionality. Exercising jurisdiction under 18 U.S.C. § 3731, we 

AFFIRM the district court’s grant of the motion to suppress. 

I 

Police officers in Aurora, Colorado were looking for Beverly Sanders on an 

outstanding warrant for failure to comply with probation conditions related to a prior 

controlled substance conviction. They found a Mitsubishi Eclipse that they believed 

belonged to Sanders parked in the lot of a Goodwill store. Sanders and a companion, 

Ian Hussey, exited the store, walked to the car, and were ordered to the ground by 

police. Sanders was immediately arrested for the outstanding warrant. Although 

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Sanders gave permission for a third party to come pick up the vehicle, the police did 

not ask Sanders whether she knew anyone who could remove the car. 

Hussey was released after police cleared him of outstanding warrants, but he 

remained on the scene, inquiring about what would happen to the car and offering to 

contact someone to pick up the car, although he did not identify anyone specifically. 

Police were unwilling to release the car to Hussey because he did not have a valid 

driver’s license. Approximately thirty seconds after Hussey was released, he was 

arrested when police found a baggie containing what appeared to be heroin near the 

location where he had been ordered to the ground during Sanders’ arrest. 

Aurora police use an impoundment form that contains a liability release, under 

which an arrestee may agree to release police from liability for any damage to or 

theft of their car, and also to leave their car in place for no more than 24 hours. 

Sanders was not asked by any officer to sign that waiver. The police nevertheless 

decided to impound the Eclipse out of fear that its contents, attractive exterior, and 

after-market accessories would lead to a break-in, particularly because it was located 

in a high-crime area after dark. One of the officers testified that she believed that the 

car would be broken into within two hours if left in the parking lot. Aurora has an 

ordinance listing 21 separate grounds for impounding a vehicle, but the vehicle being 

located in a high-crime area or being a likely target for a crime are not among them. 

Having decided to impound the Eclipse, the police conducted an inventory 

search before removing it from the lot. They discovered what they believed to be 

drugs, including methamphetamine and Ecstasy, and related paraphernalia. Sanders 

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was indicted for possessing controlled substances with intent to distribute. She 

moved to suppress the fruits of the inventory search. The district court granted the 

motion because the police impounded the car for reasons not listed in Aurora’s 

impound policy. The government filed a timely interlocutory appeal. 

II 

We review de novo the legal question of whether a seizure is reasonable under 

the Fourth Amendment. United States v. Serrato, 742 F.3d 461, 470 (10th Cir. 2014). 

The government bears the burden of proving that its impoundment of a vehicle 

satisfies the Fourth Amendment. United States v. Ibarra, 955 F.2d 1405, 1409 (10th 

Cir. 1992). Seizure of the Eclipse, the government asserts, was justified by the 

community-caretaking exception to the warrant requirement. See Cady v. 

Dombrowski, 413 U.S. 433, 441 (1973) (explaining how and why law enforcement 

officers act in a community-caretaking capacity). To ascertain whether it was lawful 

for police to impound a vehicle legally parked in a private lot, over objection from its 

driver and not pursuant to any written policy of the municipality, we address the 

contours of the community-caretaking exception under Supreme Court precedent, our 

circuit caselaw, and caselaw from other circuits. 

A

The Supreme Court has addressed the constitutionality of communitycaretaking impoundments in several cases. In South Dakota v. Opperman, 428 U.S. 

364 (1976), the Court provided several examples of lawful grounds for 

impoundment: 

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In the interests of public safety and as part of what the Court has called 

community caretaking functions, automobiles are frequently taken into 

police custody. Vehicle accidents present one such occasion. To permit 

the uninterrupted flow of traffic and in some circumstances to preserve 

evidence, disabled or damaged vehicles will often be removed from the 

highways or streets at the behest of police engaged solely in caretaking 

and traffic-control activities. Police will also frequently remove and 

impound automobiles which violate parking ordinances and which 

thereby jeopardize both the public safety and the efficient movement of 

vehicular traffic. The authority of police to seize and remove from the 

streets vehicles impeding traffic or threatening public safety and 

convenience is beyond challenge. 

Id. at 368-69 (quotation and citation omitted).1

 Later, in Colorado v. Bertine, 479 U.S. 367 (1987), a defendant argued that his 

Fourth Amendment rights were violated because Boulder, Colorado “departmental 

regulations gave the police officers discretion to choose between impounding his van 

and parking and locking it in a public parking place.” Id. at 375. The Court rejected 

this argument because Opperman and another case, Illinois v. Lafayette, 462 U.S. 

640 (1983), allow for “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 activity.” Bertine, 479 U.S. at 375. It reasoned 

 1

 The district court relied in part on two cases, Florida v. Wells, 495 U.S. 1 

(1990), and United States v. Tueller, 349 F.3d 1239 (10th Cir. 2003), which concern 

inventory searches, not impoundments. Though impoundments and inventory 

searches often occur sequentially, they are subject to different legal standards. See, 

e.g., United States v. Haro-Salcedo, 107 F.3d 769, 772-73 (10th Cir. 1997) 

(analyzing impoundment and inventory search separately and discussing Wells only 

in the inventory search context). Because only an impoundment is challenged in this 

case, the district court should not have relied on Wells and Tueller. However, this 

misplaced reliance does not warrant reversal. “We are free to affirm a district court 

decision on any grounds for which there is a record sufficient to permit conclusions 

of law, even grounds not relied upon by the district court.” United States v. 

Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotation omitted). 

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that the police properly exercised the limited discretion granted to them by a city 

policy establishing when alternatives to impoundment are appropriate, and that “such 

conditions circumscribe the discretion of individual officers.” Id. at 375-76 & n.7. 

 Opperman and Bertine establish two different, but not inconsistent, rules 

regarding when impoundments are constitutional. The Opperman decision 

establishes that some warrantless impoundments are constitutional: namely, those 

required by the community-caretaking functions of protecting public safety and 

promoting the efficient movement of traffic. Meanwhile, the Bertine decision 

establishes that other warrantless impoundments are unconstitutional: namely, those 

justified by police discretion that is either exercised as a pretext for criminal 

investigation or not exercised according to standardized criteria. However, Bertine 

and Opperman leave a large number of impoundments open to case-based 

reasonableness judgments: namely, those carried out pursuant to standardized 

criteria but not justified by the public safety and traffic control goals of Opperman. 

Assessing when such impoundments are constitutional has generated controversy 

both within our circuit and among other circuits. 

B

We have addressed the legality of impoundments on several occasions. Most 

recently, we held that “[g]ranting police discretion over whether to impound and 

inventory a vehicle is permissible so long as officers exercise that discretion 

according to standardized criteria, and not in bad faith or for the sole purpose of 

investigation.” United States v. Taylor, 592 F.3d 1104, 1108 (10th Cir. 2010) 

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(quotation omitted). However, the exact contours of when an impoundment is 

permissible under our circuit caselaw have not yet been precisely defined. 

In United States v. Pappas, 735 F.2d 1232 (10th Cir. 1984), we affirmed a 

district court’s grant of a motion to suppress after a vehicle was impounded from a 

private lot pursuant to a policy that “requires the impounding of any vehicle 

whenever an arrest takes place, regardless of the circumstances.” Id. at 1233. In so 

doing, we held that Opperman “cannot be used to justify the automatic inventory of 

every car upon the arrest of its owner.” Pappas, 735 F.2d at 1234. We further 

observed that Pappas had friends who could have taken custody of the vehicle, that 

the vehicle was “legally parked in a private lot,” and that the owner of the lot could 

have been consulted to see if the vehicle could remain there until Pappas returned. 

Id. at 1234. 

A divided panel later considered a similar impoundment, but distinguished 

Pappas on the basis that Pappas’ associates had ample opportunities to retrieve his 

vehicle. United States v. Kornegay, 885 F.2d 713, 716 (10th Cir. 1989). Kornegay 

was arrested inside an auction house for selling stolen farm tractors, and his 

automobile was then impounded from the company’s parking lot. Id. at 715. A 

majority of the panel concluded that the impoundment was constitutional in view of 

the following facts: 

First, the agents here arrested a person whose real identity they did not 

know. Second, they did not know where he lived. Indeed, they had 

been unable to identify him as coming from . . . the place of residence 

he had listed with the auction company. Third, he was alone, and there 

was no friend, relative or companion who could be asked to care for the 

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car. Fourth, they did not know where the vehicle was from. Fifth, the 

vehicle was not parked on his property, and the agents had every reason 

to believe that he would not be returning anytime soon to the auction 

company’s lot to care for it himself. Sixth, to have left the vehicle in 

the auction company’s parking lot—a lot open to the public—could 

have subjected it to vandalism or theft. The fact that the vehicle was 

legally parked in a parking lot does not, in and of itself, require the 

finding that impoundment was unnecessary. 

Id. at 716. Judge McKay dissented, contending that the impoundment was both 

unreasonable and indistinguishable from the unlawful impoundment in Pappas: 

In this case, the defendant had parked his car in a lawful place and left it 

there to go inside to do business. It was there that he was arrested. I 

believe it goes well beyond any established Supreme Court precedent 

and beyond logic to ratify an “inventory” search based on the assertion 

that securing this vehicle under the circumstances was either necessary 

or permissible. The suggestion of some police duty to the car here 

argues too much. It was not unlawfully parked. It was not a traffic 

hazard. They had not stopped him while driving or otherwise removed 

him from his car. His arrest was no more associated with this car than 

the arrest of a shoplifter would be associated with his or her car. The 

facts of this case make what one often suspects is pretext, patent. 

Id. at 719 (McKay, J., dissenting). 

In Ibarra, a driver was cited for having an expired license. 955 F.2d at 1407. 

A Wyoming Highway Patrol officer transported Ibarra to a nearby location to make 

arrangements for someone with a valid license to pick up his vehicle, which the 

officer impounded without his consent. Id. Ibarra was later arrested when drugs 

were discovered in his car during an inventory search conducted after the 

impoundment. Id. at 1407-08. The district court granted a motion to suppress and 

we affirmed, holding that the impoundment was unconstitutional because the 

officer’s decision to impound the vehicle did not meet any of the criteria for 

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impoundment under Wyoming state law. Id. at 1408-09. We further reasoned that, 

as in Pappas, the officers did not make sufficient effort to allow Ibarra to provide 

alternatives for the custody of his vehicle, although we distinguished both Pappas and 

Kornegay because Ibarra had not yet been arrested when his vehicle was impounded. 

Id. at 1409, n.4. Finally, we held that the search was unreasonable because the 

officer’s testimony that the vehicle posed a public safety hazard lacked credibility, 

suggesting that the public safety rationale was pretextual. Id. at 1409-10. 

Lastly, in United States v. Maher, 919 F.2d 1482 (10th Cir. 1990) (“Maher 

II”), we reversed a district court’s grant of a motion to suppress and upheld the 

impoundment of a trailer as both reasonable and “permissible under” the procedures 

of the impounding police department. Id. at 1487. As in Pappas and Kornegay, 

Maher’s vehicle was “lawfully parked on private property.” United States v. Maher, 

724 F. Supp. 1348, 1357 (D. Wyo. 1989) (“Maher I”); see also Maher II, 919 F.2d at 

1483 (noting that facts are set forth in district court opinion). A local police 

procedure “allow[ed] the vehicle owner to make arrangements to secure the vehicle 

so that impoundment is not necessary.” Maher II, 919 F.2d at 1487. But we 

concluded that this procedure was inapplicable because the vehicle was “itself 

evidence of crime,” making the impoundment permissible under the Fourth 

Amendment. Id. at 1487-88. 

Our cases reaffirm the holdings of Bertine and Opperman. In Taylor, we 

recognized, citing Bertine, that standardized criteria generally must confine officer 

discretion to impound vehicles. 592 F.3d at 1108. Meanwhile, in Ibarra, we 

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recognized that the “reasons of public safety” identified in Opperman can, if credibly 

present, provide a constitutionally sufficient basis for impoundment even absent 

guidance from standardized criteria. 955 F.2d at 1409. We also affirmed that 

impoundments must not be performed “in bad faith or for the sole purpose of 

investigation.” Taylor, 592 F.3d at 1108 (quotation omitted). 

C 

Other circuits have also grappled with the constitutionality of communitycaretaking impoundments. The Eighth Circuit holds that such impoundments must be 

regulated by “[s]ome degree of standardized criteria or established routine.” United 

States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004) (quotation omitted). It 

recognizes that officers may retain some discretion under departmental procedures, 

“[s]o long as the officer’s residual judgment is exercised based on legitimate 

concerns related to the purposes of an impoundment.” Id. Because the officers in 

Petty had a sufficient basis to impound the vehicle at issue pursuant to their policy of 

towing vehicles with no available drivers, the court upheld the impoundment as a 

legitimate exercise of the community-caretaking function. Id. 

In United States v. Duguay, 93 F.3d 346 (7th Cir. 1996), the Seventh Circuit 

held that an impoundment was unconstitutional because it followed neither written 

standardized criteria nor an unwritten policy. Id. at 351-52; see also United States v. 

Cartwright, 630 F.3d 610, 615 (7th Cir. 2010) (holding that impoundment was 

constitutional because the police department had a “sufficiently standardized” policy 

that lawfully permitted impoundment under the facts of the case). The court further 

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concluded the impoundment was unconstitutional because no legitimate communitycaretaking rationale supported impounding a vehicle from a private parking lot after 

arresting a passenger outside of the vehicle, when a licensed driver capable of 

moving the car was present. Duguay, 93 F.3d at 352; see also Cartwright, 630 F.3d 

at 615 (“Unlike Duguay, where the officers impounded the car despite the presence 

on the scene of a licensed driver readily able to move it, the record in this case shows 

that the unlicensed [passenger] had no means of ensuring the speedy and efficient 

removal of her car from the parking lot.” (citations and quotations omitted)). The 

Seventh Circuit concluded that the “suggestion that the police were obliged to 

impound the vehicle to protect it from theft or vandalism, strikes us as making up 

new police obligations after the fact where none existed before. The police do not 

owe a duty to the general public to remove vulnerable automobiles from high-crime 

neighborhoods.” Duguay, 93 F.3d at 352 (quotation omitted). 

The D.C. Circuit follows a subtly different approach. It holds that “if a 

standard impoundment procedure exists, a police officer’s failure to adhere thereto is 

unreasonable and violates the Fourth Amendment.” United States v. Proctor, 489 

F.3d 1348, 1354 (D.C. Cir. 2007) (emphasis added). Because the police did not 

follow their procedure requiring that arrestees be given the opportunity to arrange for 

the removal of their vehicle, the court concluded that the impoundment at issue was 

unlawful. Id. 

The Ninth Circuit holds that decisions to impound vehicles cannot be left to 

unfettered officer discretion. Miranda v. City of Cornelius, 429 F.3d 858, 863 (9th 

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Cir. 2005). In Miranda, that court considered the constitutionality of a decision to 

impound a vehicle parked in the driveway of its owner, a licensed driver. Id. at 864-

65. It concluded that the vehicle created no impediment to traffic or public safety 

and that the officers had identified no adequate basis for impoundment; accordingly, 

the impoundment was not reasonable under the Fourth Amendment. Id. at 865-66. 

The First, Third, and Fifth Circuits take a different approach. These circuits 

decline to ever look to the presence of standardized procedures, and instead conclude 

that reasonableness is the only test. See United States v. McKinnon, 681 F.3d 203, 

208 (5th Cir. 2012) (“[W]e have focused our inquiry on the reasonableness of the 

vehicle impoundment for a community caretaking purpose without reference to any 

standardized criteria.”); United States v. Smith, 522 F.3d 305, 312-15 (3d Cir. 2008) 

(rejecting “the requirement that a community caretaking impoundment be made 

pursuant to a standard police procedure”); United States v. Coccia, 446 F.3d 233, 239 

(1st Cir. 2006) (stating that it is “inappropriate for the existence of (and adherence to) 

standard procedures to be the sine qua non of a reasonable impound decision”). All 

three circuits justify their approach by interpreting Bertine and Opperman. E.g., 

Coccia, 446 F.2d at 238 (“Neither Opperman nor Bertine holds that the impoundment 

of a vehicle conducted in the absence of standardized protocols is a per se violation 

of the Fourth Amendment.”). They also explain that focusing on reasonableness 

rather than the presence of standardized criteria is more consistent with the Fourth 

Amendment’s text and purpose. See, e.g., Smith, 522 F.3d at 312 (3d Cir. 2008). 

And they identify policy reasons to prefer a reasonableness analysis, including that 

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standardized criteria may have difficulty anticipating the varying circumstances 

under which impoundment decisions must be made. See, e.g., Coccia, 446 F.2d at 

239. 

There is a clear divide between the First, Third, and Fifth Circuits, which 

never consider whether an impoundment follows standardized procedures, and the 

Seventh, Eighth, Ninth, and D.C. Circuits. There are also subtle differences between 

the tests applied by the latter circuits. For instance, the D.C. Circuit’s approach 

requires standardized procedures to be followed only if they exist, creating a perverse 

incentive to avoid the adoption of standardized procedures. See Proctor, 489 F.3d at 

1354. Yet no circuit has held either that the existence of standardized procedures 

automatically renders an impoundment constitutional, or that the absence of 

standardized procedures automatically renders an impoundment unconstitutional. 

D

 We hold that impoundment of a vehicle located on private property that is 

neither obstructing traffic nor creating an imminent threat to public safety is 

constitutional only if justified by both a standardized policy and a reasonable, nonpretextual community-caretaking rationale. 

 Our holding, like that of a majority of circuits, recognizes that Bertine makes 

the existence of standardized criteria the touchstone of the inquiry into whether an 

impoundment is lawful. However, Bertine did not purport to overrule Opperman, and 

Opperman envisioned a situation in which an impoundment is immediately 

necessary, regardless of any other circumstances, in order to facilitate the flow of 

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traffic or protect the public from an immediate harm. 428 U.S. at 368-69. But to 

hold, as have the First, Third, and Fifth Circuits, that standardized criteria are never 

relevant is to ignore the plain language of Bertine, which holds that police discretion 

to impound a vehicle is constitutional only “so long as that discretion is exercised 

according to standard criteria.” 479 U.S. at 375 (emphasis added). Our holding 

follows our prior circuit precedent in Taylor, Ibarra, and Maher in recognizing the 

centrality of standardized criteria, yet allowing broader officer discretion to protect 

public safety. 

Our requirement that standardized criteria guide impoundments on private 

property ensures that police discretion to impound vehicles is cabined rather than 

uncontrolled. Cf. Miranda, 429 F.3d at 863 (observing that although, in Bertine, “the 

Supreme Court was not prepared to mandate any particular rules as to when 

impoundment incident to arrest for a traffic violation was permissible, impoundment 

is not a matter which can simply be left to the discretion of the individual officer” 

(quotations omitted)). Imposing heightened requirements on police who seize 

vehicles from private property is consistent with our circuit precedent and caselaw 

from other circuits. See Opperman, 428 U.S. at 365 (explaining that the impounded 

vehicle was parked on the street in violation of a city ordinance); Miranda, 429 F.3d 

at 865 (describing the “location of the vehicle” as an important criterion to consider 

when determining whether an impoundment is constitutional); Pappas, 735 F.2d at 

1234 (rejecting constitutionality of impoundment in part because “the car was parked 

on private property”); see also United States v. Duncan, 763 F.2d 220, 224 (6th Cir. 

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1985) (upholding impoundment in part because vehicle was parked on a “public 

highway”). 

Yet Opperman establishes that if a vehicle is obstructing or impeding traffic on 

public property, it can be impounded regardless of whether the impoundment is 

guided by standardized procedures. See 428 U.S. at 369. By recognizing that 

standardized procedures need not justify impoundments of such vehicles, our holding 

is also faithful to our circuit precedent holding that officers should be free to 

impound vehicles that threaten public safety. See Ibarra, 955 F.2d at 1409 (“Clearly, 

police officers must have a certain amount of discretion in determining what 

threatens public safety.”). For example, our holding allows officers from a rural 

county lacking a specific policy to impound a vehicle obstructing a highway, if that 

impoundment is reasonable and not pretextual, without fear of liability. Cf. Smith, 

522 F.3d at 315 (observing that “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, because our holding requires all community-caretaking 

impoundments to be supported by a reasonable, non-pretextual justification, it guards 

against arbitrary impoundments. See Taylor, 592 F.3d at 1108 (explaining that 

impoundments must not be made “in bad faith or for the sole purpose of 

investigation” (quotation omitted)). This rule ensures that even if the police were to 

adopt a standardized policy of impounding all vehicles whose owners receive traffic 

citations, such impoundments could be invalidated as unreasonable under our 

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precedent. Cf. Miranda, 429 F.3d at 865-66. Protection against unreasonable 

impoundments, even those conducted pursuant to a standardized policy, is part and 

parcel of the Fourth Amendment’s guarantee against unreasonable searches and 

seizures. See id. at 865 (“[T]he decision to impound pursuant to the authority of a 

city ordinance and state statute does not, in and of itself, determine the 

reasonableness of the seizure under the Fourth Amendment . . . .”); see also Camara 

v. Mun. Court of S.F., 387 U.S. 523, 528 (1967) (holding that the “basic purpose” of 

the Fourth Amendment “is to safeguard the privacy and security of individuals 

against arbitrary invasions by governmental officials”). 

 Ascertaining whether an impoundment is justified by a reasonable and 

legitimate, non-pretextual community-caretaking rationale is not an easy task. We 

note that courts have considered the following non-exclusive list of factors: (1) 

whether the vehicle is on public or private property; (2) if on private property, 

whether the property owner has been consulted; (3) whether an alternative to 

impoundment exists (especially another person capable of driving the vehicle); (4) 

whether the vehicle is implicated in a crime; and (5) whether the vehicle’s owner 

and/or driver have consented to the impoundment. 

E 

Applying the rule elucidated above to the facts of this case, we conclude that 

the impoundment was impermissible because the officers were not guided by 

standardized criteria. The vehicle was legally parked in a private lot, and there is no 

evidence that it was either impeding traffic or posing a risk to public safety. Yet the 

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record reveals that although Aurora’s municipal code explicitly authorizes the 

impoundment of vehicles from public property in a list of enumerated circumstances, 

it nowhere mentions impoundment from private lots. It is therefore reasonable to 

infer that the code does not authorize, and moreover proscribes, the impoundment of 

vehicles from private lots. Cf. Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1308 

(10th Cir. 2003) (“Under the doctrine of expressio unius est exclusio alterius, to 

express or include one thing implies the exclusion of the other, or of the alternative.” 

(quotation omitted)). 

Aurora policy allowed police to offer Sanders the options of releasing them 

from potential liability if the vehicle was left in the lot or of having the vehicle towed 

by a private company. But there is no evidence that the police offered Sanders either 

of these options. Nor did they explain why they failed to mention these options. 

Unlike in Maher, the vehicle was not itself evidence of the crime for which Sanders 

was initially arrested, making the officers’ failure to offer her these options relevant 

to our inquiry. Cf. 919 F.2d at 1487. 

Lastly, unlike the policy upheld by the Bertine Court, which establishes 

“several conditions that must be met” before alternatives to impoundment are 

pursued, 479 U.S. at 376 n.7, there is no evidence that Aurora policy limits officer 

discretion in deciding whether to impound a vehicle, leave it at the scene, or allow 

the arrestee to have it privately towed. Accordingly, the impoundment was unlawful 

both because the Aurora police did not impound the vehicle pursuant to Aurora’s 

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policies, and because those policies insufficiently limited officer discretion to 

impound vehicles from private lots. Cf. Ibarra, 955 F.2d at 1408-09. 

Further, the impoundment was unlawful for an independently sufficient 

reason: it was not justified by a reasonable, non-pretextual community caretaking 

rationale. It was legally parked on private property, and there is no evidence in the 

record that the police consulted the owners of the parking lot about the vehicle 

remaining where it was. Cf. Pappas, 735 F.2d at 1234. Just as in Ibarra, police 

impounded Sanders’ vehicle without offering her the opportunity to make alternative 

arrangements, even though she stated that she was willing to have someone pick up 

the vehicle on her behalf, and Hussey offered to find someone to pick it up for her. 

Cf. Ibarra, 955 F.2d at 1409. This makes the case unlike Kornegay, because police 

knew Sanders’ identity, place of residence, the origin of her vehicle, and had other 

reasons to be assured that the vehicle would not be abandoned. Cf. 885 F.2d at 716.2

 

Given that all these factors weigh against the decision to impound the vehicle, we 

hold that it was unreasonable for the officers to do so, and that they lacked a nonpretextual community-caretaking justification to do so. See Taylor, 592 F.3d at 1108 

(impoundments must not occur for sole purpose of investigation). 

 2

 Although Kornegay listed preventing vandalism as permissible grounds for 

an impound, see 885 F.2d at 716, we recognize that other circuits have reached the 

opposite conclusion, see Duguay, 93 F.3d at 352. This is understandable, because the 

position of a vehicle in a “high-crime area” may well be a source of pretext, 

particularly when, as in this case, the owner or driver of a vehicle expresses a 

willingness to accept the risk of a break-in. However, we also recognize that there 

may be situations, as in Kornegay, in which there is no indication that a vehicle will 

ever be retrieved, making vandalism a legitimate concern. See 885 F.2d at 716. 

Appellate Case: 14-1296 Document: 01019472145 Date Filed: 08/07/2015 Page: 18 
 -19- 

III 

 The district court’s grant of the motion to suppress is AFFIRMED. 

Appellate Case: 14-1296 Document: 01019472145 Date Filed: 08/07/2015 Page: 19