In recent weeks, OMAG has received many questions about impounding a vehicle from private property. So- I thought it might be helpful to rerun an article that was published in the July 1, 2022 issue of the PLU. The law as stated in the July 1, 2022 article has not changed. Interestingly, on December 15, 2023, the 10th Circuit issued United States v Ramos, 88 F.4th 862 (10th Cir. 2023), a published opinion, which also addressed impounding a vehicle from private property.
The Ramos opinion arose out of a federal, criminal case out of Frederick, OK, and further affirmed the discussion set out in the July 1, 2022, PLU on the issue of impounding a vehicle from private property. United States v. Venezia, 995 F.3d 1170 (10th Cir. 2021) is a Tenth Circuit opinion that was issued on May 3, 2021, which answers this question. The relevant facts in United States v. Venezia are these:
On January 2, 2019, at about 9:00 p.m., Officers Tubbs and Jewkes, two members of the Lakewood PD were conducting a routine patrol in Lakewood, Colorado. They observed an Audi pull into the parking lot of a motel and then drive to a gas station across the street. Along the way, the driver (who was later determined to be Venezia) committed a traffic violation by failing to signal a turn. The vehicle soon returned to the motel parking lot, and as it did so, the officers observed that the front and rear license plates were not properly affixed to the vehicle’s front and rear bumpers.
The officers ran the license plate number through their identification systems, which revealed the vehicle’s registered owner was a person named Luis Cuello. Venezia parked the vehicle in the motel’s private lot. The vehicle was legally parked, was not obstructing traffic, and did not pose an imminent threat to public safety. The motel and its parking lot were in a high-crime area of Lakewood. The officers approached the vehicle based on the illegal turn they had observed. The officers asked Venezia, the driver and sole occupant of the vehicle, for his license, registration, and insurance. He did not have these things, or a bill of sale.
Venezia told the officers his license was suspended; the officers confirmed his license had been revoked. Venezia presented the officers with his Colorado identification card, from which the officers determined he had an outstanding misdemeanor warrant for failure to appear on a traffic ticket. When asked about Cuello (the vehicle’s registered owner), Venezia stated he did not recognize the name. He told the officers he had recently purchased the vehicle from a person named Dustin Estep but had been unable to insure or register it due to the holidays. The officers contacted their communication center in an attempt to reach Cuello by telephone, but the attempt was unsuccessful. The officers arrested Venezia on the outstanding warrant and impounded the vehicle. Venezia objected to the impoundment.
Although he was not a guest at the motel, Venezia indicated that an individual he referred to as his brother was staying there. The officers did not inquire whether Venezia’s brother (who turned out to be a friend, Christian Kelly) could take possession of the vehicle. The officers also did not ask anyone working at the motel for permission to leave the vehicle in the motel parking lot.
During a routine inventory search of the vehicle conducted as part of the impoundment, law enforcement found drugs, drug paraphernalia, a gun holster, and ammunition. Venezia was released on bond, after which he was able to establish his ownership of the vehicle. Venezia was charged with possession with intent to distribute methamphetamine under federal law. He filed a motion to suppress and argued that the impoundment of his vehicle violated the Fourth Amendment, and as such, the drugs and other evidence found in the inventory search should be suppressed as fruit of the poisonous tree.”
At a suppression hearing, the District Court found that Venezia was the vehicle’s owner and that he had recently purchased the vehicle from Estep, who had recently purchased it from Cuello. But the Court further found the officers had no information available to them, at the time of their encounter with Venezia, that would have alerted them to this chain of title. The District Court denied the motion and Venezia pleaded guilty with a right to immediately appeal the denial of the motion to suppress. He timely filed his appeal to the Tenth Circuit. Ultimately, the Tenth Circuit reversed the District Court and ruled that the impoundment violated the Fourth Amendment.
In its opinion ruling in favor of Venezia, the Tenth Circuit explained that it had clarified that when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both 1) standardized criteria and 2) a legitimate, community-caretaking rationale in United States v. Sanders, 742 F.3d 461 (10th Cir. 2014). In this regard, “standardized criteria” is found in department policy because the department policy provides boundaries on officer discretion in conducting impoundments.
In Venezia’s case, the police department had a policy that required when 1) the driver of a vehicle does not have a valid driver’s license, 2) the car is registered to another person, and 3) the officer is unable to verify that the driver has permission to drive the vehicle, the officer is encouraged to impound the vehicle. The Tenth Circuit noted that this policy was sufficient to establish the first prong of the Sanders analysis and that the officers acted according to the policy. In addressing the second prong of the Sanders analysis, the Tenth Circuit noted that there are five factors to be considered when evaluating whether the officers complied with the community caretaking rationale.
They are: (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 (i.e., is 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 Tenth Circuit found that all five of these factors weighed in Venezia’s favor. First, the vehicle was on private property (a motel). Second, the officers did not contact (or attempt to contact) the property owner (motel manager) about whether the vehicle could remain on the property. Third, the vehicle was not implicated in a crime. Fourth, the vehicle’s driver (Venezia) objected to the impoundment and the officers were not able to contact the person they believed to be the vehicle’s owner (Cuello). Fifth, an alternative to impoundment existed: the Tenth Circuit stated that the officers could have left the vehicle in the parking lot and continued to attempt to contact Cuello, the person they believed to be the vehicle’s owner. The Tenth Circuit stated it was not reasonable for the officers to believe that Cuello could not be reached when they only tried for 45 minutes to reach him.
In sum, the Tenth Circuit ruled that the officer’s decision to impound the vehicle was not guided by a reasonable community-caretaking rationale as required under the second prong of the Sanders analysis. Thus, the Tenth Circuit found that the impoundment violated the Fourth Amendment. So, when you are faced with whether to impound a vehicle on private property, the Sanders analysis and factors should guide your decision.
