On May 3, 2021, the Tenth Circuit Court of Appeals decided the United States v. Venezia[i], which is instructive regarding impoundment of vehicles from private parking lots. The relevant facts of Venezia, taken directly from the case, are as follows:
On January 2, 2019, at about 9:00 p.m., Officers David Tubbs and Jason Jewkes, two members of the Lakewood Police Department (“LPD”), 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; instead, the plates were improperly displayed in the passenger compartment. 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 then 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.” ROA Vol. 5 at 140. 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 a driver’s license, registration for the vehicle, car insurance, title to the vehicle, or a bill of sale. Venezia told the officers his license was suspended; the officers confirmed that, in fact, his license had been revoked. Venezia presented the officers with his Colorado identification card, and the officers determined he had an outstanding misdemeanor warrant for “a failure to appear on a traffic ticket.” Id. at 75.
When asked about Cuello—i.e., 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.
At the suppression hearing, the district court found as a matter of fact 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 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 an inventory search of the vehicle, conducted as part of the impoundment, law enforcement found drugs, drug distribution paraphernalia, a gun holster, and ammunition. Venezia was released on bond, after which he was able to establish his ownership of the vehicle.[ii]
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. The district court denied the motion and Venezia pleaded guilty with a right to appeal the denial of the motion to suppress. He then filed a timely appeal to the Tenth Circuit Court of Appeals.
The court of appeals first noted the general legal principles relevant to the vehicle impound. The court stated
One exception to the warrant requirement is a search or seizure conducted pursuant to police officers’ “community-caretaking functions.” In the context of vehicle impoundments, the community-caretaking doctrine arose from the everyday reality that police frequently encounter disabled vehicles or investigate vehicular accidents in which there is no cause to believe that a criminal offense has occurred. Cady v. Dombrowski, 413 U.S. 433, 441 (1973).[iii]
The Tenth Circuit further stated
[W]e clarified the precise standard for determining the constitutionality of a police-ordered impoundment on private property in Sanders: “when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both  standardized criteria and  a legitimate community-caretaking rationale.[iv]
Thus, in the Tenth Circuit, if a vehicle is on private property and not impeding traffic or public safety, for the impound to be legal it must (1) be done according to standardized criteria, and (2) follow a legitimate community-caretaking rationale.
Prong One: Standardized Criteria/Policy
The first prong of the test above, is whether the vehicle impound was conducted according to standardized criteria, such as department policy. This is to provide boundaries on officer discretion in conducting such impounds. In Venezia’s case, the police department had a policy that required the following:
The specific policy [the officers] relied on states when “ the driver of [a] vehicle does not have a valid driver’s license[,] . . .  the car is registered to another person[,] and  the [LPD] agent is unable to verify that the driver has permission to drive the vehicle, the agent is encouraged to impound the vehicle.” LPD Policy § 4741(B)(1)(d).[v]
The court noted that this policy is sufficient to establish the first prong of the analysis and the officers acted according to the policy.
Prong Two: Community Caretaking Rationale
The court of appeals then moved to the second prong of the analysis related to the community caretaking rationale. The court noted that there are five factors that must be considered when evaluating if the officers complied with the community caretaking rationale. The court stated
This court identified, in Sanders, five non-exclusive factors that courts use to determine whether an impoundment is justified by such a reasonable, non-pretextual community-caretaking rationale:
(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.[vi]
The first factor is whether the vehicle was on private property or public property. In this case, the vehicle was on private property, particularly the parking lot of a motel. This factor weighed in favor of Venezia.
The second factor was whether the private property owner was consulted about whether they would allow the vehicle to remain at that location. In this case, the officers did not attempt to contact the motel owner or manager to ask whether the vehicle could remain. This weighed in favor of Venezia.
The third factor is whether an alternative to impoundment existed, such as another person to take custody of the vehicle. The court of appeals stated that this factor weighed in favor of Venezia because the officers could have left the vehicle in the parking lot and continued to attempt contact Cuello, the person who appeared to be the registered owner of the vehicle. The court stated it was not reasonable for officers to believe that Cuello could not be reached when they only tried for 45 minutes from 9pm to 9:45pm. The court stated that if the officers were unable to determine the owner of the vehicle, this would have weighed in favor of the government; however, that was not the situation in Venezia’s case.
The fourth factor was whether the vehicle was implicated in a crime. The vehicle was not implicated in crime and this factor weighed in favor of Venezia.
The fifth factor was whether the vehicle’s owner and/or driver consented to the impoundment. Here, the officers could not determine that Venezia owned the vehicle at the time of the impoundment. Officers believed that the registered owner, Cuello, was the owner of the vehicle, and they were unable to contact him. As such, this factor weighed in favor of impoundment.
The court of appeals then weighed the factors and stated
To summarize: the vehicle at issue was legally parked on private property, did not impede traffic, and did not pose a safety hazard. The private property owner did not object to the vehicle’s presence. None of these facts are in dispute. Rather, the parties dispute whether leaving Venezia’s vehicle in the motel parking lot would have unnecessarily exposed it to risk of theft or vandalism.
As discussed above, the vehicle in this case was not at unnecessary risk of theft or vandalism, and thus the officers lacked a reasonable community-caretaking rationale. The officers could not reasonably conclude that the vehicle would be unattended for a prolonged period of time based on their unsuccessful 9:00 P.M. attempt to call the vehicle’s registered owner. And the vehicle’s presence in the motel parking lot was no different than any other vehicle in the lot. For these two reasons, the officers’ decision to impound the vehicle was not guided by a reasonable community-caretaking rationale as required under the second Sanders prong. The officers could no more impound Venezia’s vehicle than they could impound any other vehicle at the motel, assuming its driver was unavailable and its registered owner could not be reached that night.
It is unnecessary to decide whether the asserted community-caretaking rationale was also “pretextual.” In fact, in this case, the evidence of pretext is scant. Yet, we held in Sanders that an asserted community-caretaking rationale must be both “reasonable” and “non-pretextual.” Id. at 1248. The officers in this case were attempting to rely on their standardized policy when impounding the vehicle. That policy, however, as exercised here, simply did not grant the officers authority to do what the Fourth Amendment forbids—to impound a vehicle absent a reasonable community-caretaking rationale.[vii]
Therefore, the court of appeals held the impoundment violated the Fourth Amendment and reversed the district courts denial of the motion to suppress.
[i] No. 19-1432 (10th Cir. Decided May 3, 2021)
[ii] Id. at 2-4
[iii] Id. at 6 (emphasis added)
[iv] Id. at 7-8 (emphasis added)
[v] Id. at 9
[vi] Id. at 13 (emphasis added)
[vii] Id. at 23-25 (emphasis added)