Opinion
Case No. 00-20074-01-JWL
November, 2000
MEMORANDUM ORDER
This matter is before the court on defendant Michael Jacob's motion to suppress evidence seized during the search of the defendant's vehicle on May 9, 2000 (Doc. 16). For the reasons set out below, the defendant's motion is granted.
Background
On September 25, 2000, this court held an evidentiary hearing on the defendant's motion to dismiss. At the hearing, the prosecution presented the testimony of Officers Michael Howell and Troy Bennett. The defense did not present evidence. The court later granted the defendant's motion to supplement the record (Doc. 32) and accepted into evidence a videotape of the events on May 9, 2000. Officer Howell testified at the hearing that he stopped the defendant's car for playing loud music and that while he was checking to see if the driver had warrants for his arrest, the defendant's car speed away. According to Officer Howell, he followed the car until it pulled into the driveway at 87 So. 18th Street. Officer Howell testified that the driver fled from the vehicle on foot and that Officer Howell found the driver shortly thereafter hiding under a neighbor's porch. According to Officer Howell, The defendant was sprayed with mace for resisting arrest, decontaminated and then transported to jail. Both Officer Howell and Officer Bennett testified that the defendant's car was searched after the defendant had been taken from the scene and was in route to the jail. The video tape shows that the defendant fled on foot at 5:17 p.m., that the defendant's vehicle was secured by another officer at 5:24 p.m., and that Officer Howell requested that the defendant's car be towed at 5:25 p.m. The video tape also shows that Officer Howell knew that the defendant had parked the car in his own driveway.
Discussion
The prosecution argues that the search is valid absent a warrant because it was a search incident to an arrest. In order to remove any weapons and to prevent the destruction of evidence, an arresting officer may conduct a prompt, warrantless search of an arrestee's person and the area within his immediate control, defined as the area from within which the arrestee might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763 (1969). However, a warrantless search incident to arrest is not valid if it is "remote in time or place from the arrest." United States v. Chadwick, 433 U.S. 1, 14 (1977). In United States v. Lugo, 978 F.2d 631 (10th Cir. 1992), the Tenth Circuit held that after a suspect has been removed from the scene, the search incident to an arrest exception no longer applies because the search is too remote in time and place. According to the court, "[o]nce Lugo had been taken from the scene, there was obviously no threat that he might reach in his vehicle and grab a weapon or destroy evidence. Thus, the rationale for a search incident to arrest had evaporated." Both Officers Howell and Bennett testified at the hearing that the search of the defendant's car did not begin until after the defendant had been transported from the scene and was in route to the jail. Lugo, therefore, is controlling and the search incident to an arrest exception does not apply.
The video shows that from the time that the defendant fled from his car on foot to the time that an officer found and secured the car, seven minutes had elapsed. Officer Howell testified at the hearing that he could not see the car from where he arrested the defendant. Thus, for seven minutes the car was unsecured and not in sight of any officer. A "search incident to a valid arrest must be conducted substantially contemporaneous with the arrest and generally confined to the immediate vicinity of the arrest." Preston v. United States, 376 U.S. 364 (1964). The lapse of seven minutes before the car was secured and the significant distance between where the defendant was arrested and the defendant's car persuade this court that the search was not substantially contemporaneous with the arrest nor in the immediate vicinity of the arrest. See, e.g., United States v. Charles, No. 00-20022-01-KHV, 2000 WL 575043 at *4 (D.Kan. May 1, 2000) (holding that the search incident to an arrest exception does not apply when the defendant was arrested near his car after being absent from the car for a period of time, and citing for support the decisions in State v. Kelly, 963 S.W.2d 866, 869 (Tex.Ct.App. 1998) (holding that a search was not incident to arrest where the defendant had been out of his car and inside a house for ten to fifteen minutes and was arrested at distance from car) and State v. Tompkins, 423 N.W.2d 823, 826 (Wisc. 1988) (holding that a search was not incident to an arrest where the defendant was arrested in a tavern after having exited his vehicle)).
The prosecution also argues that the search was valid absent a warrant as an inventory search. An inventory search is a well-defined exception to the warrant requirement of the Fourth Amendment designed to protect the owner's property, protect the police against claims of lost or stolen property, and protect the police from potential danger. Colorado v. Bertine, 479 U.S. 367 (1987); South Dakota v. Opperman, 428 U.S. 364 (1976). In applying the inventory search exception to the warrant requirement, the first question that must be decided is whether the impoundment of the car was reasonable under the Fourth Amendment. See United States v. Rios, 88 F.3d 867, 870 (10th Cir. 1999); United States v. Ibarra, 955 F.2d 1405, 1408-09 (10th Cir. 1992). The government has the burden of showing that the impoundment of the defendant's vehicle was authorized by state law. Ibarra, 955 F.2d at 1410. Failure to meet this burden means that any evidence discovered in the subsequent search of the car must be suppressed. Id.
As proof that the impoundment was authorized by state law, the prosecution points to the Kansas City, Kansas standard towing procedure which references city ordinances. The towing procedure allows vehicles on private property to be towed only if there is probable cause to believe that "the vehicle has been used in the commission of a crime and the vehicle is needed for evidence in connection with said crime." See section VII. The evidence presented at the hearing does not show that the car was needed as evidence of a crime. Instead, the evidence indicated that the car was towed because its driver was arrested and the officers believed that this justified the tow and search of the car. The evidence also shows that the police knew that the car was parked in the defendant's driveway and did not consult the defendant as to the disposition of his car, as Kansas law requires. The prosecution, therefore, has failed to meet its burden of showing that impounding the defendant's car was authorized by Kansas law.
The government also argues that because "the defendant had an outstanding drug warrant, and fled from police" that the police had probable cause to "believe that the car contained contraband evidence that would be destroyed if the car was not seized." The argument that anytime a person with an outstanding warrant flees from police, the police have probable cause to search his car is obviously without merit. Furthermore, the government did not present any evidence to support the proposition that individuals with a warrant for drug crimes who flee from police often have contraband in their vehicle. The government does not argue that the search of the car was valid because the police had probable cause to believe that the car contained an illegal weapon, despite evidence of this at the hearing. Because the government does not make this argument, despite prompting from the court at the hearing, this court will not rule on this as a possible grounds for a search of the car.
The defendant argues in his supplemental response that the search did not comply with standardized procedures and, therefore, all evidence discovered during the search should be suppressed. In fact, "inventory searches are only reasonable if conducted according to standardized procedures." United States v. Haro-Salcedo, 107 F.3d 769, 772-73 (10th Cir. 1997). The defendant's argument focuses on whether the officer's decision to tow the car, as opposed to the search of the car, followed standard procedure. Case law discussing the requirement that an inventory search comply with standard procedure is limited to whether the actual search of a car followed a standard inventory procedure. See, e.g., United States v. Lugo, 978 F.2d 631, 636-37 (10th Cir. 1992) (searching behind the door panel of a car does not qualify as "standard police procedure"). The officers testified at the hearing that the search of the car was conducted pursuant to standard inventory procedure. The requirement that standard procedure be followed, thus, is not grounds for this court to suppress the evidence obtained during the search.
"When the owner, operator, or person in charge of a vehicle is capable and willing to instruct police officers as to the vehicle's disposition, then absent some other lawful reason for impounding the vehicle, the person should be consulted, and his or her wishes followed concerning the vehicle's disposition." State v. Cannan, 265 Kan. 835, 844 (1998).
While this court finds no Kansas precedent on point, the law is well settled that police may not impound the car of an arestee parked in his own driveway as a matter of course:
Generally the courts are of the view that "when a person is arrested away from home, the police may impound the personal effects that are with him at the time to ensure the safety of those effects." At the outset, it is necessary to note the "away from home" qualification to this statement. If a person is in or at his place of residence and his car is parked in the garage or lot or other place where that person ordinarily leaves his car, then the police cannot justify seizure of the car on the grounds that such an action is needed for the protection of the vehicle and its contents.
Wayne R. LaFave, Search and Seizure § 7.3 (1996). For example, in United States v. Squire, 456 F.2d 967 (2d Cir. 1972), the Second Circuit rejected the argument that the police could tow a car after arresting the driver when the car was parked in the defendant's apartment parking lot. According to the court, "since the Cadillac was parked in the parking lot behind the apartment house in which appellant lived, which was an appropriate place for it to be, and appellant did not consent to its removal, the officers did not have a reasonable basis for concluding that it was necessary to take the Cadillac to the police station in order to protect it." This court believes that Kansas would agree with other jurisdictions that police may not seize a vehicle lawfully parked on a driver's property simply because the driver is arrested. The prosecution has not presented evidence to justify the seizure of the vehicle on other grounds. The seizure of the defendant's car, therefore, was improper under Kansas law.
Because the prosecution has failed to meet its burden of showing that the defendant's car was properly impounded under Kansas law and because this court believes that, under Kansas law, it was improper to impound the defendant's car solely because the driver was arrested, the inventory search to the warrant requirement does not apply. Because neither the search incident to an arrest nor the inventory search exceptions apply and the prosecution does not point to any other exception to the warrant requirement, all evidence discovered in the subsequent search of the defendant's car must be suppressed.
IT IS SO ORDERED.