Federal Corner: “The Community Caretaking Exception to the Fourth Amendment” – By F. R. Buck Files Jr.

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Alexander Frank McKinnon could not have read Burglaries for Dummies. If he had, he would have paid attention to rule 46: “When driving around looking for houses to burgle, make certain that your vehicle’s inspection sticker is valid.” Because of his inattention to detail, McKinnon is now serving a sentence of 30 months in a federal prison.

In affirming his conviction, a panel of the United States Court of Appeals for the Fifth Circuit held that:

  • A police officer’s decision to impound a motor vehicle which was being driven with an expired registration sticker by a motorist who could not produce a valid driver’s license was reasonable under the Fourth Amendment;
  • An inventory search of the vehicle was constitutionally proper; and
  • The police officer’s subjective motivations for impounding and conducting inventory search of the vehicle were irrelevant.

United States v. McKinnon, ___ F.3d ___, 2012 WL 1320242 (Fifth Cir. 2012)[Panel: Circuit Judges Benavides, Stewart, and Graves (Per Curiam)]

[The Facts]

      Houston Police Officer Salam Zia observed an automobile being driven by McKinnon in a neighborhood where a number of homes had been burglarized. Zia noticed that the vehicle’s registration sticker had expired. He stopped the vehicle and asked McKinnon to produce his driver’s license. McKinnon told the officer that he did not have a driver’s license and that his name was “Alex McKinney.” A computer query did not produce any search results for that name. When Zia ran a search of the license plate number, he found that the vehicle was not registered to an “Alex McKinney.”

      Zia, believing that McKinnon had provided false information to him and that he and the passengers in his vehicle were looking for houses to burglarize, arrested McKinnon for failing to produce a Texas driver’s license. He then decided to have McKinnon’s vehicle towed. In accordance with HPD’s towing policy, he conducted an inventory search and discovered a loaded revolver. McKinnon was indicted for violations of 18 U.S.C. §§ 922(g)(1)[Felon in possession of firearm] and 924(a)(2)[Felon in possession of ammunition].

[Proceedings in the District Court]

      McKinnon’s lawyer filed a motion in the United States District Court for the Southern District of Texas to suppress evidence that the revolver had been found in McKinnon’s possession. During a hearing on the motion, Zia testified:

…the reason why I decided to the write the report for not having an operator’s license was because I believed that he was providing me with false information, and at that point I thought there could have been some other—you know, maybe, possibly, some evidence in the vehicle. So, I arrested him and, subsequent to that, inventoried the vehicle.

      At the conclusion of the hearing, Judge Sim T. Lake III denied the motion to suppress the evidence. McKinnon entered a conditional plea of guilty, reserving the right to appeal Judge Lake’s order denying his motion. Judge Lake assessed punishment at 30 months confinement and McKinnon timely appealed.

[The Defendant’s Position on Appeal]

      On appeal, McKinnon challenges the district court’s denial of his motion to suppress the firearm and ammunition discovered during an inventory search of the vehicle he was driving. Specifically, McKinnon argues that the HPD’s towing policy affords officers unconstitutional discretion in deciding when to tow a vehicle as a nonconsent tow. McKinnon further claims that Zia’s inventory search of the vehicle was unconstitutional because it was a purposeful and general means of discovering evidence, in violation of the Fourth Amendment. In sum, McKinnon maintains that Zia had complete discretion in deciding whether to tow, leave the vehicle parked, or permit another to leave with it. Those options, he argues, afforded Zia unconstitutional discretion in deciding whether to inventory.

[From the Opinion]

      The Per Curiam opinion of the court contains, in part, the following:

A. The Impound

[The Fourth Amendment]

 The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Warrantless searches and seizures are ‘per se unreasonable unless they fall within a few narrowly defined exceptions.’” United States v. Kelly, 302 F.3d 291, 293 (5th Cir.2002). One such exception that courts have recognized is the “community caretaking” exception.

***

[The Community Caretaking Exception]

 The origin of the community caretaking exception is found in the United States Supreme Court’s decision in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In Opperman, the Court noted that impoundments by the police may be in furtherance of “public safety” or “community caretaking functions,” such as removing “disabled or damaged vehicles,” and “automobiles which violate parking ordinances, and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic.” Id. at 368, 96 S.Ct. 3092 (internal citation omitted). The Court further noted that 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 369, 96 S.Ct. 3092.

 Approximately ten years after Opperman, the Court again touched on the subject of a police officer’s decision to impound a vehicle in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Interpreting Opperman, the Court stated:

[n]othing in Opperman [ ] prohibits 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. Here, the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it.

Bertine, 479 U.S. at 375, 107 S.Ct. 738.

***

[When Does the Community Caretaking Exception Apply?]

 Since Opperman and Bertine, we have focused our inquiry on the reasonableness of the vehicle impoundment for a community caretaking purpose without reference to any standardized criteria.

***

 In considering whether this exception applies, our constitutional analysis hinges upon the reasonableness of the “community caretaker” impound viewed in the context of the facts and circumstances encountered by the officer. See Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1987) (“whether a search or seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case.”).

***

[Zia’s Decision to Impound the Vehicle Was Appropriate]

 In this case, Zia’s decision to impound the car was reasonable under the Fourth Amendment. It is undisputed that the neighborhood in which the stop occurred had experienced a series of burglaries. Although these were house burglaries, there is nothing to suggest that the vehicle would not have been stolen or vandalized if left parked and locked at the scene. By impounding the vehicle, Zia ensured that the vehicle was not left on a public street where it could have become a nuisance, and where it could have been stolen or damaged. Thus, Zia’s conduct falls within the community caretaking function.

***

B. The Inventory

[The Three Prong Analysis of an Inventory Search]

 An inventory search of a seized vehicle is reasonable and not violative of the Fourth Amendment if it is conducted pursuant to standardized regulations and procedures that are consistent with “(1) protecting the property of the vehicle’s owner, (2) protecting the police against claims or disputes over lost or stolen property, and (3) protecting the police from danger.” Lage, 183 F.3d at 380 (citing United States v. Hope, 102 F.3d 114, 116 (5th Cir.1996)). These standardized regulations and procedures must “sufficiently limit the discretion of law enforcement officers to prevent inventory searches from becoming evidentiary searches.” United States v. Andrews, 22 F.3d 1328, 1336 (5th Cir.1994) (citation omitted).

[The HPD’s Towing Policy]

Pursuant to the HPD towing policy,

Whenever an officer authorizes a nonconsent tow of a prisoner’s vehicle, the officer will personally conduct an inventory of items in the vehicle including any and all containers not secured by a lock, and will complete a wrecker slip. A detailed inventory list will be written on the wrecker slip. Officers must be specific in identifying inventoried items. General terms such as “miscellaneous property” will not be used.

Hous. Police Dep’t Gen. Order No. 600-10 (issue date July 29, 2008).

***

[The Adequacy of the HPD Towing Policy]

 McKinnon does not contend that Zia did not follow this policy. We are therefore faced with considering only the adequacy of the policy itself. Relying upon the three considerations set forth in Lage, supra., we conclude that the policy is constitutionally adequate. By its clear terms, the policy is consistent with preserving the property of the vehicle’s owner, ensuring that the police protect themselves against claims or disputes over lost or stolen property, and protecting the police from danger.

***

[The Reasonableness of Zia’s Inventory Search]

 Because the inventory search in this case was conducted pursuant to this constitutionally adequate policy, it was reasonable and thus does not violate the Fourth Amendment. Lage, 183 F.3d at 380. The district court, therefore, did not err in denying Mc­Kin­non’s motion to suppress.

***

[Zia’s Subjective Motivations for Conducting the Inventory Search]

 In this case, McKinnon fails to develop any persuasive reasons for reversing the district court’s judgment. He does, however, raise one issue that warrants brief mention. McKinnon argues that Zia’s subjective motivation in conducting the search renders the inventory search invalid under the Fourth Amendment. In light of well-established case law:

the reasonableness inquiry under the Fourth Amendment is an objective one, wholly divorced from the subjective beliefs of police officers.
[S]o long as police do no more than they are ob­jectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.

Castro, 166 F.3d at 734 (internal citations and quotation marks omitted).

***

 Although Zia may have had an ulterior motive to search the vehicle, the inventory search was reasonable, and thus, remained valid under the Fourth Amendment.

My Thoughts

  • Community caretaking cases are about as rare as hen’s teeth. Most of us will never see one of these during our entire prac­tice of law.
  • The “subjective intent of the officer” cases are always the same. The officer knows that the defendant has done something illegal, but all he has is a hunch. He finds a valid ex­cuse for having an officer/citizen contact. This matures into the discovery of criminal conduct on the part of the de­fendant. He is arrested, prosecuted, and convicted. And the court says, “The subjective motive of the officer is irrelevant.” The defendant loses.
  • I liked the opinion in McKinnon. Zia played by the rules and made a good arrest. He then followed HPD’s towing and inventory procedures, which resulted in McKinnon’s arrest. His lawyer’s arguments before the district court and on appeal were well set out. The per curiam opinion was a good read and clearly enunciated the community caretaking exception and applied it to the facts of the case.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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