United States v. Ramos, 2023 WL 8658839 (10th Cir. 2023)
Late one night, officers received a call reporting a disturbance at a convenience store. The initial responding officer saw two men fighting in the parking lot. The officer separated them and recognized Isaac Ramos and Caleb Hogan as his former classmates. As the officer pulled Ramos off to the side, Ramos turned and “lightly tapped” the officer on his right cheek. The officer arrested Ramos for assault on a police officer and handcuffed him, placing him in the backseat of his patrol car. The officer then spoke with Hogan, who he perceived to be the victim because, when the officer first arrived, Hogan began to walk toward his vehicle and Ramos followed, before starting the fight.
Another officer arrived to assist in the investigation. The arresting officer decided he was going to impound Ramos’ truck. His decision to impound was based solely on the fact he had arrested Ramos. Ramos said the truck belonged to his mother. The officer had known Ramos’ mother since he was a child and knew she lived just a couple blocks away. The officer later acknowledged she lived much closer than the nearest tow service. Ramos asked if his mother could come pick up the truck, but the officer never responded.
Ramos was alone, his mother was not on-scene and the officer suspected Ramos was intoxicated. When the officer saw the truck lacked a license plate, he called for a tow truck. He was concerned about leaving the truck in the convenience store parking lot overnight. The store was closing in a short time and the officer thought the police department could be liable if the truck were stolen or damaged. The store also had a sign prohibiting parking by non-customers. The officer looked in the truck cab for the license plate and found it behind the seat. When the officer checked the registration and insurance, he found both were valid.
Later, during the inventory of the truck prior to towing, the officer discovered a loaded automatic rifle behind the seat. The rifle had no serial number. During that time, the officer was notified of a request to call Ramos’ mother. She arrived at the convenience store, showing up before the tow truck arrived. The officer told her it was too late to cancel the tow truck.
Once at the jail, officers discovered Ramos was a felon; he was charged with unlawful possession of a machine gun and being a felon illegally in possession of ammunition. He entered a conditional guilty plea and challenged the inventory search of the truck. The district court found the impound and subsequent inventory search were proper. Ramos appealed, claiming the impound and inventory were not consistent with a standardized impound policy and that the impound was not supported by a reasonable, non-pretextual community-caretaking rationale.
Ramos claimed the impound and inventory were improper—not consistent with a standardized impound policy—and that the impound was not supported by a reasonable, non-pretextual community-caretaking rationale.
The appellate court reversed, siding with Ramos. The court cited five non-exclusive factors to guide the analysis of whether an impoundment is justified by “a reasonable, non-pretextual community-caretaking rationale.” These factors include: “(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.”
The court found all these factors weighed against the reasonableness of impounding Ramos’ truck. The court first took issue with the trial court’s heavy reliance on the lack of an obvious pretext motive for the impound. The appellate court pointed to the officer’s testimony that he always impounded an arrestee’s vehicle if no one else is around. The court perceived that practice, unsupported by the department policy, as unreasonable.
Ramos’ truck was legally parked in a private parking lot and was not obstructing traffic, so there was little concern for public safety in leaving the truck where it was. The court acknowledged that concerns about possible vandalism and potential liability for the department were legitimate. Notwithstanding, the officer did not ask the convenience store clerk about leaving the truck in the parking lot overnight, even though the officer spoke with the clerk to obtain witness information. The posted sign, “Customer parking only, violators will be towed,” indicated the store would not be responsible for damage, not necessarily that police could or should tow cars from the lot.
The appellate court also disagreed with the trial court’s conclusion that the truck could not lawfully be driven on the street. Ramos’ mother could have taken the truck and attached the license plate with tools already in the truck. The truck was validly licensed, registered and insured. Nor would the wait time for Ramos’s mother to arrive have been unduly long. The officer knew she lived just three blocks away and, in fact, she arrived before the tow truck. The additional factors did not weigh in favor of impoundment. The truck was not implicated in a crime and was not “evidence.” Ramos didn’t consent to the impound.
Though the community caretaking factors weighed against impounding the truck, the lack of a clear department policy, along with the officer’s apparent misunderstanding and misapplication of policy, were fatal errors. Perhaps the most significant unanswered question is, why (or how), during the officer’s search behind the seat for the missing license plate, did the officer miss a loaded machine gun? The officer didn’t recall the gun being covered by anything. The trial court stated that, when the officer “pulled the seat forward earlier to look for the license plate, he did not see the firearm in plain view.” Always look for the unexpected!