• Prolonged Traffic Stops
• Mission of a Traffic Stop
• Officers’ Safety During a Traffic Stop

It is not a Fourth Amendment violation to ask about a driver’s parole status during a traffic stop in that to so is a negligibly burdensome measure that is reasonably related to officer safety.  Conducting the mission of a traffic stop includes asking questions related to the officer’s safety, such as whether the person contacted is a convicted felon and whether he has any weapons with him.

In July, 2020, Officers Dorin Buchanan and Patrick Marshall observed defendant Victor Ramirez speeding in a residential neighborhood, failing to stop at a stop sign, and not using his turn signal upon making a turn.  The officers recognized defendant as a gang member even before stopping him. Due to the observed traffic infractions, the officers made a traffic stop.  Officer Buchanan approached defendant and immediately initiated the verbal contact with: “What’s up my man? You on probation or parole?” Defendant responded that he was on parole.  When asked, “For what?”, defendant told the officer that it was, “For a firearm.”  Officer Buchanan followed up with a few more questions such as when it was he had last checked in with his parole officer, where he lived, whose car he was driving, and what he was doing in the area.

During this exchange, Officer Buchanan could see that defendant had several gang-related tattoos. Based on the tattoos, Officer Buchanan knew that defendant was in an area claimed by rival gang members. Officer Buchanan later testified that it would be “uncommon” for a rival gang?member to be in the area “without a firearm.”  Intending to conduct a parole search, Officer Buchanan instructed defendant to turn off the car.  He then asked whether he had a driver’s license while telling him not to attempt to reach for it.  Defendant told the officer that he did in fact have a license, although he didn’t have it with him at the time.

Being cautious, Officer Buchanan told defendant to put his right hand on the back of his head and unbuckle his safety belt with his left hand. Officer Buchanan asked defendant if he had a gun (referred to as a “strap”). Defendant admitted that he did, and that it was in the glove compartment.  Upon removing defendant from his car, a loaded 9mm semiautomatic pistol was recovered from the glove compartment.  Upon confirming via the police computer system in the patrol car that defendant was in fact on parole, he was arrested.  Indicted by a federal grand jury for a violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm), defendant’s motion to suppress the gun was denied by the trial court.  Defendant therefore pled guilty and was sentenced to 63 months (five years, three months) in prison.  He subsequently appealed. 

The Ninth Circuit Court of Appeals affirmed (remanding the case solely for the purpose of correcting some errors in the written judgment). 

On appeal, defendant conceded that the traffic stop was lawful.  His argument, however, was that because Officer Buchanan initiated the traffic stop with questions related to his parole status and other related issues instead of immediately attending to the purpose of the stop (i.e., to write him a citation), the stop was “unlawfully prolonged,” and thus in violation of the Fourth Amendment.

Indeed, it is a rule that upon initiating a traffic stop, officers are required to attend to what has become known as the “mission of the stop.”  To do anything else beyond the mission of the traffic stop is, as a general rule, an unlawful prolonging of the stop and a violation of the Fourth Amendment. “(A) traffic stop ‘exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.’” (Rodriquez v. United States (2015) 575 U.S. 350, 354.) However, the Supreme Court has also recognized that “[t]raffic stops are especially fraught with danger to police officers.” As such, “an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.”  (Rodriguez v. United States, supra, at 356.)  For this reason, it has been held that in addition to the writing a ticket, officers may also lawfully check the driver’s license, determine whether there are any outstanding warrants, inspect the automobile’s registration and proof of insurance, and (as is relevant in this case) “attend to related safety concerns.” Those safety concerns include conducting a criminal history check to determine whether the driver is a felon and asking about the presence of any weapons in the car.  In assessing potential risks involved?in a traffic stop, it is useful for a police officer to know if the person is on parole because even though not all parolees are violent, a parolee has at the very least committed a crime serious enough to have merited prison time.

Given the potential danger to an officer in contacting a convicted felon, the Fourth Amendment allows the officer to ask the driver if he is a felon in that such a question is considered to be a “negligibly burdensome measure.” (Two inquiries were mentioned here that are beyond the mission of a traffic stop, and thus an illegal prolonging of the stop: (1) Doing an “ex-felon registration check” [a computer check to ensure that a felon is properly registered under state law], and (2) demanding identification from a passenger. Per the Court, neither is necessary to “advance officer safety.”)  Another action an officer may take to insure his or her safety is order the driver of a vehicle (and/or passenger) to exit the vehicle during a traffic stop, in that doing so may make it easier for the officer watch and keep control of the suspect.  (Pennsylvania v. Mimms 1977) 434 U.S. 106, 110. See also People v. Gyorgy (2023) 93 Cal.App.5th 659, 670.) In this case, Officer Buchanon merely asked defendant if he was on parole (and thus a felon).  After defendant admitted to being on parole, the officer asked about the presence of any weapons. Both inquiries, being directly related to the officers’ safety, were lawful and thus did not unlawfully prolong the traffic stop.  As such, defendant’s Fourth Amendment rights were not violated.  The trial court therefore correctly denied defendant’s motion to suppress.  

The Court doesn’t specifically say it, but what it hints at very strongly is the fact that once defendant admitted to being a parolee, the Officer Buchannan thereafter had the right to extend the mission of the traffic stop long enough to conduct a warrantless parole search.  Upon determining that there was a gun in the car—an item that as a parolee he was forbidden to possess—the officers had the legal right to arrest him, making any further delays in the traffic stop a moot issue. So defendant’s goose was cooked, so to speak, as soon as the gun was found and it was confirmed via the police radio that he was indeed a convicted felon. Absent these (or similar officer-safety) circumstances, law enforcement officers making traffic stops need to know that they must move forward with completing the mission of the traffic stop, as described above, without wandering off onto side issues that have nothing to do with the reasons for the stop and which prolong the detention.  To do so constitutes an “unlawfully prolonged detention,” and will result in any criminal evidence later discovered being suppressed.

• Use of deadly force and the issue of reasonableness 
• The Graham factors 
• Handling of mentally ill, suicidal individuals 
• Qualified immunity from civil liability 

In determining the lawfulness of the use of deadly force, a court is to determine whether the officer’s actions were reasonable under the circumstances at the time. In determining reasonableness, the court is to consider the severity of the crime, whether the suspect posed an immediate threat and whether the suspect was actively resisting or evading arrest. An officer’s pre-shooting tactics are entitled to little weight, and, by themselves, do not establish that a resulting shooting was unreasonable.  

The fact that the person upon whom deadly force is used may be mentally ill is irrelevant to the issue of the reasonableness of the force used to subdue him. An officer is required to warn about the impending use of deadly force only when it is feasible to do so. In an excessive use of force civil case, an officer is entitled to qualified immunity absent prior legal precedent to the contrary, clearly established by preexisting case law.

On Dec. 10, 2018, city of Redwood officers responded to a call concerning a man attempting to kill himself with a knife. They contacted the man’s wife, plaintiff Kristin Hart, who was covered with blood from attempting to stop her husband, Kyle Hart, from cutting himself. She directed the officers to the backyard. Upon heading for the backyard, the officers decided between themselves that the lead officer would “go lethal,” drawing his firearm, while the second would “go less lethal,” openly carrying her Taser.  

They found Kyle standing in one corner of the yard, holding a knife, about 37 feet from the officers, either standing behind or on top of a low dirt mound. It was an issue whether he was facing away from the officers and holding the knife down at his side, facing them and holding the knife out at shoulder height, or holding it to his own throat.  

Kyle began moving toward the officers and the lead officer told him twice to drop the knife. Kyle continued moving at a “brisk walk” or a “slow run,” covering about 30 feet in approximately six seconds, while “holding the knife out towards them.” The officers did not warn Kyle that they would shoot. As he continued to approach them while still holding the knife, the second officer fired her Taser at him. One Taser probe struck Kyle on the left side of his head while the other missed, making the Taser ineffective in that both prongs must hit their mark. 

At the same time (or immediately thereafter), as Kyle was eight to 10 feet from the officers and still approaching, the lead officer shot at him five times, hitting him in the upper torso with three rounds. Kyle fell to the ground at the lead officer’s feet and within five feet of the second officer. 

Transported to the hospital by paramedics, Kyle was pronounced dead upon reaching the emergency room. In April 2021, plaintiffs Kristen Hart and her children filed a civil lawsuit pursuant to 42 U.S.C. § 1983 in federal court, alleging a violation of constitutional and state law rights. Both plaintiffs and the defendant officers filed cross-motions for summary judgment, which the district (trial) court denied except as to certain claims asserted by the plaintiffs.  

Specifically, the district court determined that the lead officer was not entitled to qualified immunity from civil liability. In making this determination, the district court relied upon the rules as previously laid out by the Ninth Circuit Court of Appeals in Deorle v. Rutherford (9th Cir. 2001) 272 F.3rd 1272, at page 1285: “Every police officer should know that it is objectively unreasonable to shoot...(1) an unarmed man who: (3) has committed no serious offense, (3) is mentally or emotionally disturbed, (4) has been given no warning of the imminent use of such a significant degree of force, (5) poses no risk of flight, and (6) presents no objectively reasonable threat to the safety of the officer or other individuals.” The city and the officer appealed. 

The Ninth Circuit Court of Appeals reversed, holding that the officer’s actions in shooting Kyle Hart were reasonable under the circumstances then present.  

(1) The Graham factors: The Supreme Court has dictated that in determining whether it was objectively reasonable for an officer to believe that the amount of force used was required by the situation with which he or she is confronted, a court is to “balance ‘the nature and quality of the intrusion on the individual’s?Fourth Amendment?interests’ against ‘the countervailing government interests at stake.’” (Miller v. Clark County (9th Cir. 2003) 340 F.3rd 959; quoting?Graham v. Connor (1989) 490 U.S. 386, 396. See also Saucier v. Katz (2001) 533 U.S. 194, 205.)  

The Supreme Court in Graham set forth a three-part test to use in evaluating this issue: (1) The severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.  

Factor #2 is considered the most important of the three. When evaluating this factor, the court noted that “(t)he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (Graham v. Connor, supra., at pg. 396.) Finding immaterial the minor factual differences alleged by the plaintiff in this lawsuit (on which side of the path the officers were standing, how Hart was holding the knife, where exactly Hart was standing when first observed by the officers, or how fast he approached the officers), the court held that it was clear that Hart did in fact pose an immediate threat to the officers.  

The court based this conclusion on two undisputed facts: (1) Hart?was?holding a knife when they first saw him and (2) Hart continued to hold the knife, pointed toward the officers, as he?approached?them. It was also relevant that Hart was non-communicative as he approached the officers and failed to respond to or comply with the officer’s command to “drop the knife.” The officer’s “decision to fire was based on Hart’s failure to comply with commands, his approach, and his possession of a lethal weapon.”  

The plaintiffs’ asserted factual disputes did not eliminate any of these core circumstances that led the officer to reasonably believe that Hart posed an immediate threat to both himself and his partner.  

Although concluding that this factor was dispositive by itself, the court went on to conclude that the other two Grahm factors (The severity of the crime at issue and whether the suspect was actively resisting arrest or attempting to evade arrest by flight) similarly favored the civil defendants.  

Hart, by his actions, was threatening to commit an assault on law enforcement officers with a knife while refusing commands to drop it. As such, factor #1 favored the use of deadly force by the officers in defending themselves. As for factor #3, the court found this also favored the use of deadly force in that Hart, by refusing to drop the knife as he aggressively approached the officers, was “actively resisting arrest or attempting to evade arrest.” “Ultimately, it is the totality of the circumstances?that lead (the court) to conclude that?Graham’s standards are satisfied,” justifying the use of deadly force. 

(2) Other relevant factors: In addition to the Graham factors, the court also discussed three other issues raised by the plaintiffs: “(a) (T)he officers’ pre-shooting conduct and the availability of less-intrusive alternatives, (b) Hart’s apparent mental illness and (c) the officers’ failure to warn that they would shoot. 

(2a) Pre-shooting conduct by the officers and the availability of less-intrusive tactics: While noting that California law and the Ninth Circuit do take into consideration the officers’ pre-shooting conduct, including the availability of “less-intrusive tactics,” when considering whether an officer has acted reasonably when using deadly force?(See Hayes v. County of San Diego (9th Cir. 2013) 736 F.3rd 1223, 1231, 1235-1236.), the court also noted that “[t]he?Fourth Amendment?is narrower and places less emphasis on pre[-]shooting conduct.”?(Vos v. City of Newport Beach (9th Cir. 2018) 892 F.3rd 1024, at 1037.)  

The rule is also that although “[t]he events leading up to the shooting, such as the officer’s tactics, are encompassed in [the] facts and circumstances,” a court can consider such pre-shooting tactics are not entitled to much weight. (It was also noted in footnote five that other federal circuits have held that an officer’s pre-shooting conduct to be irrelevant, and cannot be used to establish a?Fourth Amendment violation.) Whether the trial court took into account the officers’ pre-shooting conduct in this case, the Ninth Circuit ultimately held that nothing the officers could have done differently would have prevented the fatal shooting. As for the availability of “less intrusive tactics,” the plaintiffs suggested that the officers could have moved to a different location in the yard which itself was “roomy and had patio furniture, and so the officers could have repositioned and potentially put the patio table between themselves and Hart.” The court determined that this fact, even if true, would not have made any difference in the outcome.    

(2b) Hart’s apparent mental illness: The court first noted that Hart’s mental issues change nothing as far as the outcome of the case. Specifically, the Ninth Circuit has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.”?(Citing Crawford v. City of Bakersfield (9th Cir. 2019) 944 F.3rd 1070, 1078.) Whether the deceased suffered from a mental illness, the same Graham factors are to be used when evaluating the reasonableness of the officers’ use of deadly force. 

(2c) The officers’ failure to warn: While the courts like to see a warning before deadly force is used, the rule is that no such warning is necessary when it was not “feasible” to do so. “Here, given the speed at which the unfortunate events unfolded, it was not unreasonable for (the officer) to forgo a verbal warning and take action to protect himself and his partner from an immediate threat.”

(3) Qualified immunity: Contrary to the trial court’s ruling, the Ninth Circuit held that even if the officer’s use of force in this case was found to be unreasonable, he was at the very least entitled to qualified immunity from civil liability. To deny an officer qualified immunity, not only must a constitutional right be violated, but that right must be “clearly established” by preexisting case law. To be clearly established, there need not be “a case directly on point, but?existing precedent must have placed the statutory or constitutional question beyond debate.”?(Ashcroft v. al-Kidd (2011) 563 U.S. 731, 741.) “While in the ‘rare’ case a clearly established right may be obvious, clearly establishing a right usually requires ‘controlling authority’ or a robust ‘consensus of cases of persuasive authority.’” (District of Columbia v. Wesby et al. (2018) 583 U.S. 48, at 63 & 64; quoting?Ashcroft v. al-Kidd, supra, at 741-742)  

Plaintiffs in a civil suit have the burden of showing that the law was clearly established. In this case, Kristin Hart and her children, as plaintiffs, failed to do so. Per the court, none of the cases the plaintiffs cited put the “constitutional question beyond debate” so that the “violative nature of (the officer’s) particular conduct [was] clearly established.”  As such, the officer and the city were entitled to qualified immunity from civil liability. 

It’s always disturbing to see situations where police officers respond to a call for assistance with a mentally ill, suicidal individual, only for the officers to accomplish the exact opposite of what the caller had expected when he or she asked for the help. The last thing any officer wants to do is kill someone when the officer was called there to help, even if it is a “suicide by cop” situation.  

You would think the legal standards would be different than they are when responding to a call from someone asking for protection from a mentally deranged individual. But the applicable “legal standards” are no different, as so pointedly discussed in this case. If a mentally ill person threatens immediate serious harm to the officers or others, then deadly force is warranted so long as that force is reasonably necessary to prevent the harm. From the point of view of the officer who is putting his or her life on the line, you can certainly understand that.  

At least in this case, “less lethal” (in the form of a Taser) was attempted, although it appears that the officer could have been more accurate. In my day (way back in the ’70’s), all we had was a baton (or rather a broom handle-like stick, painted black, with a rubber grommet used to keep it from sliding through the metal ring on our gun belt), Mace and training on how to effectively disarm that knife-wielding mental case without killing him.  

Yet I don’t remember anyone I worked with way back then who had to shoot and kill a mentally deranged individual merely because he or she was armed with a knife, or any other potential weapon, short of a firearm. We’d just Mace him and/or beat that knife out of his hand with our nightstick with no one getting seriously hurt in the process. I don’t think we were any braver in those days...maybe just dumber. But either way, we got the job done and no one got killed. 

• Inventory searches of an impounded vehicle 
• Inventory searches conducted as an excuse to look for evidence of criminal wrongdoing 

An inventory search of a vehicle done upon lawful impoundment and in accordance with a law enforcement agency’s impoundment policies must be limited to establishing an inventory of the vehicle’s contents. A searching officer’s subjective intent is relevant to the issue of why the vehicle was searched. A warrantless inventory search of a vehicle done to look for evidence of criminal wrongdoing violates the Fourth Amendment, requiring suppression of any evidence found. 

A San Bernardino County sheriff’s deputy attempted to stop the defendant, Jonathan Anderson, at about 2 a.m. for a partially obscured license plate in violation of?Vehicle Code § 5201. The defendant initially failed to stop, turning abruptly into a dead-end street, and accelerated to the end of the road. As the deputy called for backup, the defendant turned into an apartment complex, and then into the driveway of a private residence where (evidently having run out of places to go) he stopped and got out of his truck. The total elapsed time between when the deputy first lit up his emergency lights to when the defendant stopped was 30 to 45 seconds. Believing that the defendant had attempted to flee, an assumption the defendant denied, the deputy took him into custody at gun point and, upon arrival of a second deputy, handcuffed him.  

The defendant claimed he didn’t see the deputy’s emergency lights. He also claimed to be parked in the driveway of a friend. The defendant admitted his driver’s license was expired, verified via radio. It was also learned that the defendant was a “career criminal” as a five-time convicted felon. After the resident of the house told deputies he did not know the defendant and he wanted the vehicle removed from his driveway, the deputies decided to impound the defendant’s truck pursuant to VC § 14607.6, impoundment of the vehicle of an unlicensed driver.  

In preparing to tow the vehicle, an inventory search was initiated, over the defendant’s express objection, resulting in the recovery of a loaded handgun from under the driver’s seat. The defendant was arrested for being a felon in possession of a firearm.  

As the first deputy took the defendant to jail, a second filled out the paperwork related to the impoundment, pursuant to the standard administrative procedural requirements as described in the San Bernardino County Sherriff’s Department manual. This included inventorying the contents of the vehicle. In so doing, the deputy checked off boxes reflecting the presence of two radios and a firearm. The deputy failed, however, to document other property found in the car, although pictures were taken of the contents as visible in the passenger area.  

The defendant was charged in federal court with one count of being a felon in possession of a firearm, per 18 U.S.C. § 922(g)(1). After his motion to suppress the gun was denied (the defendant arguing primarily that the deputies initiated the search of his truck before verifying with the homeowner that he did not know the defendant; a witness credibility issue decided by the trial court in the deputies’ favor), the defendant pled guilty and was sentenced to 77 months in prison. The defendant appealed. 

In late 2022, the Ninth Circuit Court of Appeals, in a 2-to-1 decision, initially affirmed the trial court’s ruling. (United States v. Anderson (9th Cir. Dec. 29, 2022) 56 F.4th 748; previously briefed at California Legal Update, Vol. 28, #3; March 7, 2023.) That decision was subsequently vacated and a rehearing by an en banc (11-justice) panel was held, with this new decision as briefed here issued in its place.  

In this new decision, the Ninth Circuit reversed the trial court in a 6-to-5 decision. The issue on appeal concerned the problem of attempting to draw a line between a lawful post-impound inventory search (for which neither probable cause nor a search warrant is necessary) and an illegal investigatory search of a vehicle (which requires probable cause and a warrant).  

The court first noted the basic rule that law enforcement must generally obtain a warrant, based upon a showing of probable cause, before conducting a search. Among the recognized exceptions to this rule is when it is an automobile being searched, and that vehicle is impounded as a part of law enforcement’s “community caretaking” function.  

Pursuant to the “community caretaking” doctrine: “The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” (Dakota v. Opperman (1976) 428 U.S. 364, at 369.) Upon removing the vehicle in issue and impounding it, an inventory search of that vehicle is allowed as a “well-defined exception to the warrant requirement of the?Fourth Amendment.” (Colorado v. Bertine (1987) 479 U.S. 367, 371.)  

Such an inventory search is recognized by the courts as necessary for a number of However, post impoundment inventory searches are only lawful if done according to “standardized procedures” as established by the involved law enforcement agency. (Harris v. United States, supra., and United States v. Torres (9th Cir. 2016) 828 F.3rd 1113, 1118.) As such, the Court here noted that “a standard (department) inventory procedure goes a long way in determining the reasonableness of a search.” (Florida v. Wells (1990) 495 U.S. 1, 3-4.) However, inventory searches are just that: One that reflects a police department’s policy (whether in writing, or orally) that is “designed to produce an inventory.” Such a policy may not be used as an excuse, however, to purposely seek evidence of criminal wrongdoing. In determining whether a particular inventory search was illegally used to seek evidence of criminal conduct, the Court noted that “(t)his is the rare context where the?Fourth Amendment analysis is not purely objective—(an officer’s) subjective motivations are material.” A court is therefore required to evaluate the searching officer’s subjective intent in conducting an inventory search upon which it can then make a determination as to whether the search was done for the purpose of establishing an inventory (which is legal), or as an excuse to conduct a criminal investigation (which, absent probable cause, a warrant, or some other exception to the warrant requirement, is illegal). In order to determine this intent, all the surrounding circumstances must be considered. Where you draw that hypothetical line between a lawful warrantless inventory search and an unlawful search done for the purpose of seeking evidence of criminal wrongdoing is the issue upon which the justices of this en banc court disagreed. The Government (i.e., the prosecution), of course, bears the burden of proving that the search of the defendant’s vehicle was lawful.

Disagreeing with the trial court (as well as the previous three-judge decision of this same court), the majority of the justices on this panel determined that the government failed to meet its burden in this case. An officer’s degree of compliance with an agency’s inventory polices is relevant in determining whether the officer acted in furtherance of an administrative purpose or solely for investigatory purposes under the guise of conducting an inventory. “Perfect compliance” with that policy is not required. As such, it has been ruled in prior cases that “minor noncompliance with department policies does not invalidate an otherwise lawful inventory search.” However, there is a limit to how far an officer can stray from a standard procedure that was adopted to serve the recognized administrative purposes underlying the inventory-search exception and still justify the search as a good-faith, administrative action. It was also noted that an officer’s failure to create an inventory can—but may not always—suggest that something else motivated the search. It still has to be shown, however, that the inventorying officers’ primary motivation was to produce an inventory of the vehicle’s contents and not merely to seek evidence of criminal wrongdoing.

In this case, the Court first noted that the Santa Bernardino County Sheriff’s Department has a written policy governing inventory searches, and that the deputies, at least to some degree, failed to fully comply with that policy. Thus, while “substantial compliance” with a police department’s policies is often sufficient, the Court ruled that in this case, what the deputies did and did not do in this regard evidenced a primary intent to look for evidence of criminal wrongdoing as opposed to merely safeguarding the contents of the defendant’s truck. As noted above, the inventorying deputy listed only the presence of two radios and a firearm found in the truck, ignoring other items. Specifically, the deputy failed to inventory a speaker, tools, two pairs of sunglasses, a watch,?cologne, and other miscellaneous items. And while photographs were taken of the interior of the truck, the deputy’s subjective intent in taking those photographs (which also did not show all of the property found in the truck) appears to have been done for the purpose of documenting the truck’s interior for use in a resulting criminal case and not to establish an inventory. In the crime report filed by the deputies, for instance, they listed the firearm and ammunition taken from the defendant’s truck as “evidence,” indicating that these items “were seized and treated specifically as evidence of a crime—not as property (to be held) for safekeeping.” The Court also rejected the Government’s argument that those items not listed were excluded from the inventory because they were of insignificant value in that “SBCSD’s inventory-search policy does not give deputies discretion to decide what property should be listed.” In summary, the Court held as follows: “The bottom line is simple: the deputies’ recording of a single item used as evidence (i.e., the firearm), despite SBCSD’s procedure requiring that they inventory ‘any?personal property contained within the vehicle’ was not mere ‘minor’ or ‘slipshod’ noncompliance.?(Citations) It was a material deviation from SBCSD’s standard inventory procedure.” The Court further noted that before the truck’s impoundment, the deputies had discovered what they viewed as a “[l]ot of . . . money” in the defendant’s wallet (around two hundred dollars), questioned why the defendant had gloves in his truck, why his truck was wet, and determined through a radio check that he was a career criminal.” With this information, along with the defendant’s apparent attempt to avoid being stopped in the first place, the deputies already suspected that he had been engaged in some sort of criminal behavior, supplying them with the motivation to try to determine what that behavior might have been. The Court also found it significant that the search of the defendant’s truck occurred prior to it being towed, as opposed to afterwards as typically occurs with most lawful impoundments. “(W)here (the defendant) was secured in the back of a patrol car and there was no immediate exigency related to securing the truck and its contents, (the fact that the impoundment occurred before towing) is part of the totality informing whether the ‘inventory’ search conducted here was?an excuse ‘to rummage for evidence.’” Based upon all this, and with the only item listed being something (again, the loaded firearm, along with two radios) intended for use in a criminal case, these facts suggested strongly that the search of the defendant’s truck was conducted for purposes of collecting evidence of criminal wrongdoing, and not as a lawful inventory search of a vehicle upon impoundment. Therefore, the firearm should have been suppressed as the product of this warrantless search of the defendant’s truck.  

However, post-impoundment inventory searches are only lawful if done according to “standardized procedures” as established by the involved law enforcement agency. (Harris v. United States, supra., and United States v. Torres (9th Cir. 2016) 828 F.3rd 1113, 1118.) As such, the court here noted that “a standard (department) inventory procedure goes a long way in determining the reasonableness of a search.” (Florida v. Wells (1990) 495 U.S. 1, 3-4.)  

However, inventory searches are just that: One that reflects a police department’s policy (whether in writing, or orally) that is “designed to produce an inventory.” Such a policy may not be used as an excuse to purposely seek evidence of criminal wrongdoing. In determining whether a particular inventory search was illegally used to seek evidence of criminal conduct, the court noted that “(t)his is the rare context where the?Fourth Amendment analysis is not purely objective – (an officer’s) subjective motivations are material.”  

A court is therefore required to evaluate the searching officer’s subjective intent in conducting an inventory search upon which it can then make a determination as to whether the search was done to establish an inventory (which is legal), or as an excuse to conduct a criminal investigation (which, absent probable cause, a warrant, or some other exception to the warrant requirement, is illegal).  

To determine this, the surrounding circumstances must be considered. Where you draw that line between a lawful warrantless inventory search and an unlawful search for the purpose of seeking evidence of criminal wrongdoing is the issue upon which the justices of this en banc court disagreed.  

The prosecution, of course, bears the burden of proving that the search of the defendant’s vehicle was lawful. Disagreeing with the trial court, as well as the previous three-judge decision of this same court, the majority on this panel determined the government failed to meet its burden in this case.  

An officer’s degree of compliance with an agency’s inventory polices is relevant in determining whether the officer acted in furtherance of an administrative purpose or solely for investigatory purposes under the guise of conducting an inventory. Perfect compliance with that policy is not required. As such, it has been ruled in prior cases that “minor noncompliance with department policies does not invalidate an otherwise lawful inventory search.”  

However, there is a limit to how far an officer can stray from a standard procedure that was adopted to serve the recognized administrative purposes underlying the inventory-search exception and still justify the search as a good-faith, administrative action.  

It was also noted that an officer’s failure to create an inventory can – but may not always – suggest something else motivated the search. It must be shown, however, that the inventorying officer’s primary motivation was to produce an inventory of the vehicle’s contents and not merely to seek evidence of criminal wrongdoing. In this case, the court first noted that the Santa Bernardino County Sheriff’s Department has a written policy governing inventory searches, and that the deputies, at least to some degree, failed to fully comply with that policy. Thus, while “substantial compliance” with a police department’s policies is often sufficient, the court ruled that in this case, what the deputies did and did not do in this regard showed a primary intent to look for evidence of criminal wrongdoing as opposed to merely safeguarding the contents of the defendant’s vehicle. As noted, the inventorying deputy listed only the presence of two radios and a firearm, ignoring other items. The deputy failed to inventory a speaker, tools, two pairs of sunglasses, a watch,?cologne and other miscellaneous items. And while photographs were taken of the interior of the truck, the deputy’s subjective intent in taking those photographs (which also did not show all of the property found in the truck) appears to have been done for the purpose of documenting the truck’s interior for use in a resulting criminal case and not to establish an inventory. In the crime report filed by the deputies, for instance, they listed the firearm and ammunition taken from the defendant’s truck as “evidence,” indicating that these items “were seized and treated specifically as evidence of a crime – not as property (to be held) for safekeeping.”  

The court also rejected the government’s argument that those items not listed were excluded from the inventory because they were of insignificant value in that the department’s “inventory-search policy does not give deputies discretion to decide what property should be listed.”  

In summary, the court held as follows: “The bottom line is simple: the deputies’ recording of a single item used as evidence (the firearm), despite SBCSD’s procedure requiring that they inventory ‘any?personal property contained within the vehicle’ was not mere ‘minor’ or ‘slipshod’ noncompliance...It was a material deviation from SBCSD’s standard inventory procedure.” The court further noted that before the truck’s impoundment, the deputies had discovered what they viewed as a “[l]ot of...money” in the defendant’s wallet (around $200), questioned why the defendant had gloves in his truck, why his truck was wet, and determined through a radio check that he was a career criminal.”  

With this information, along with the defendant’s apparent attempt to avoid being stopped in the first place, the deputies already suspected he had been engaged in some sort of criminal behavior, supplying them with the motivation to try to determine what that behavior might have been. The court also found it significant that the search of the defendant’s truck occurred prior to it being towed, as opposed to afterwards as typically occurs with most lawful impoundments. Where the defendant “was secured in the back of a patrol car and there was no immediate exigency related to securing the truck and its contents, is part of the totality informing whether the ‘inventory’ search conducted here was?an excuse ‘to rummage for evidence.’”  

Based upon all this, and with the only item listed (the gun) being something intended for use in a criminal case, these facts suggested strongly that the search of the defendant’s truck was conducted to collect evidence of criminal wrongdoing, and not as a lawful inventory search of a vehicle upon impoundment. Therefore, the firearm should have been suppressed as the product of this warrantless search of the defendant’s truck.  

In reaching this decision, the court pulled no punches when it concluded the deputies purposely attempted to sidestep the legal requirements for an inventory search. I’m not so sure, preferring to believe that they just didn’t understand that you must make a better effort to comply with their own department’s procedural rules for inventory searches. And in considering the circumstances, there is really no reason why a lawful inventory search could not have been performed, as the car was lawfully impounded under a community caretaking theory (I presume the court believed the theory applied, although it did not discuss it.)  

It should also be noted that a concurring justice openly accused the deputies of lying about whether they checked with the witness in whose driveway the defendant was parked before or after the search of the defendant’s truck, supporting this accusation with a definitive timeline of the events as they occurred.  

This accusation could have easily been defused had the deputies documented their actions by using their bodycams. (I don’t know why they did not.) The court never mentions bodycams. Noting, however, that your honesty and integrity are your most important attributes as a law enforcement officer, I suggest you not give a court any reason to question them by cutting corners, if that’s in fact what happened in this case.  

If an automobile can lawfully be impounded under the community caretaking doctrine, then follow the correct procedures for doing so. It’s not that difficult. You simply have to be familiar with your agency’s impound procedures and follow them to a “T.” That’s not to say, by the way, that I agree with this case decision. Five justices from this en banc panel, one from the Ninth Circuit’s previous three-justice decision, and a trial court judge, all disagreed, each making some very rational arguments to support their opinions.  

This is a case that really needs to be submitted to the U.S. Supreme Court for a more definitive decision as to where we are to draw the line between a lawful inventory search of a vehicle and the need for probable cause and a warrant (or some other applicable exception to the warrant requirement) before searching a vehicle. As it stands, despite this decision, there’s still is a lot of confusion on this issue that needs clarification.