USCA1 Opinion

December 31, 1992

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-1255
UNITED STATES,
Appellee,
v.
WILBERTO RAMOS-MORALES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Jose R. Aquayo for appellant.

______________
Carlos A. Perez, Assistant United States Attorney, with w
________________
Daniel F. Lopez Romo, United States Attorney, was on brief
_______________________
appellee.
____________________
____________________

BREYER, Chief Judge.

____________
Enforcement Agency
charges.

At

Federal agents

("DEA") arrested

of the Drug

the defendant on

drug

that time, the defendant parked his car on the

side of the road.

The agents seized the car, impounded it,

searched it, and found evidence that was later introduced at

trial.

The

seizure
held

single issue

of the parked car

that the

seizure

on this

appeal is whether

was lawful.

amounted to

the

The district court

a "reasonable,"

hence

lawful,

impoundment

vandalism.

the

car

to

prevent

theft

or

We agree.
The

favorable

of

to

explicitly

basic
the

facts,

presented in

government

the

(whose witnesses

credited), see, e.g.,

___ ____

United States
_____________

light

most

the

court

v. Newton,
______

891 F.2d 944, 946 n.2 (1st Cir. 1989), are as follows:
1. On July 12, 1991, two DEA agents, armed with
an arrest warrant for the defendant, Wilberto
Ramos
Morales, spotted a man fitting Ramos'
description, emerging from a white, two-story,
apartment house on Calle Tulipan, in Carolina,
Puerto Rico. A passerby told the agents that the
man was indeed Ramos.
2.
The agents saw Ramos enter his car, parked on
the sidewalk next to the house. Calle Tulipan is
a dead end street.
Ramos drove the car towards
the far end of the street and turned it around.
The officers blocked the open end of the street
with their car, emerged from their car with
weapons, pointed them at Ramos in his car, and
told Ramos to stop.

3.

Ramos, whose car

was then "in

the middle of

the street," moved his car "towards the edge of

the road," and stopped it "on the edge of the
street."
Ramos then got out of the car, the
agents "put him in front of the vehicle with his
hand[s] on top of it," and one of the agents took
the keys from the "top of the car," where Ramos
had left them.
4. After arresting Ramos, the agents, following
"DEA
standard
procedures," which
apparently
instruct agents not to "leave" a "vehicle in an
unknown location," took the car "for protection
and security purposes," -- i.e., "to protect"
Ramos' "property" and "for the safety of the
vehicle itself."
5.
The agents testified that they did not know
where Ramos "usually lived or where he usually
stayed."
They had a list of five addresses they
were to check in an effort to find him. The Calle
Tulipan address was the last on the list. Ramos'
car had a BCK license plate, registered at what
was
apparently
a different
("Country Club"
district) Ramos address.
These
within

the

impoundment

facts would

scope of
to

the

protect

seem to
many

car

reasonable, and hence lawful.

bring this

case well

precedents finding
from

theft

or

police

vandalism

The Supreme Court itself

has

held that police may impound a car for this reason, provided
they make

their impoundment decision "according to standard

criteria and on

the basis of something other than suspicion

of evidence of criminal activity."

U.S.

367, 375

police may

(1987).

Colorado v. Bertine, 479

________
_______

Lower courts

lawfully impound a vehicle

-33

have found

that the

that would otherwise

remain on the

side of a public highway or

Rodriguez-Morales,
_________________

929 F.2d

denied, 112 S.Ct. 868 (1992);

______

780

(1st

city street, see

___

Cir.

1991),

cert.
_____

United States v. Velarde, 903

_____________
_______

F.2d 1163 (7th Cir. 1990); United States v. Duncan, 763 F.2d
_____________
______
220

(6th Cir. 1985); United States v. Griffin, 729 F.2d 475

_____________
_______

(7th Cir.), cert. denied, 469 U.S. 830 (1984); United States
_____ ______
_____________
v.

Taddeo, 724 F. Supp. 81 (W.D.N.Y. 1989), aff'd, 932 F.2d

______
_____

956 (1st Cir. 1991); or in a private parking lot, see United

___ ______
States
______

v. Kornegay,
________

713 (10th Cir.

1989), cert.
_____

denied, 495 U.S. 935

______

(1990); United States v.

_____________

Johnson, 734
_______

F.2d 503

1984); United States

_____________

(10th Cir.

885 F.2d

v. Staller,
_______

616

F.2d 1284 (5th Cir.), cert. denied, 449 U.S. 869 (1980).
_____ ______
The appellant tries to distinguish these
arguing that he parked his car

off the street in a

cases by
private

___
parking

place just outside his home.

this argument is factual.

to the government, and
court generally
"on

The main problem with

We must read the record favorably

the government's witnesses (whom the

credited) testified

that the car

was left

the edge" of the road outside a building that they "did

not know" (and reasonably need not have believed) was Ramos'
home.

pointing

The

dissent tries

out

that the

to distinguish these

street in

question

cases by

is not

a busy

might seem

out of

-44

public

street

place,

inviting theft

parking

lot,

where a

long-parked car
or harm;

belonging to

agents had no reason

convincing.

another

is not

person;

a private

and that

to think the street was located

especially crime-ridden area.

seem

that it

the
in an

But these distinctions do not

For one thing,

the significant risk that

an abandoned car
confined to

will be

busy streets,

commercial parking lots.

impounding the
existence

and

stolen or damaged
"high

seem

crime" neighborhoods,

or

For another, the agents here,

in

car, followed standard DEA

uniform

does not

application

procedures.

of

such

The

standard

procedures can help prevent what the dissent sees as a major

threat to privacy interests, namely that

arresting officers

will

(and the inventory

search

use "theft-prevention impoundment"

that usually

follows) as

a pretext

for initiating

searches for evidence of criminal activity. See Bertine, 479

___ _______
U.S. at 375-76.
Finally, and perhaps most importantly, the Supreme
Court

in

Bertine
_______

seemed

specifically to

hold

that

the

Constitution permits arresting officers to impound, pursuant

to standard procedures, an arrested person's automobile that
might

otherwise be left abandoned.

Id.
__

This result, the

Court said, reflects the government's legitimate interest in

-55

reducing

automobile

theft

and

damage,

diminished expectation of privacy

tendency of clear, standard
Cf.
__

South Dakota v.
_____________

rules to control police abuses.

Opperman,
________

police

364,

373 (1976)

caretaking

procedures

designed to

secure and protect vehicles

distinction

to

428 U.S.

deference

police

custody).

between the

We

do not

case at

pages 3

-4,

supra.
_____

Indeed,

Supreme Court's opinion there

case, but

for the fact that

the

of

side

presumably

the

pulled

road

(the

over,

the

and their contents

see

bar and

authority, particularly as supplemented

on

claim
car

any significant
that controlling

by the cases

Bertine, as
_______

the Bertine car was

_______
police

having

drunk driver)

where it was located

lacks any

Bertine "could not

_______
at the time

basis in the Supreme

the police here seem to have

the

likely at

stopped, and
near a busy
_____________

was at the side of

road in a residential neighborhood.

_______________________________
that the police in

far as

cited

reveals, is identical to this

intersection, while the car in this case

____________
the

individual's

in an automobile, and the

(according

within

the

(The

dissent's

have left the

of Bertine's arrest"

Court's description; indeed

had the authority to have left

the

car parked

and

locked.)

And, as

we have

said, the

distinction between busy, and

nonbusy, streets, in terms of

that Supreme Court case, and a

host of later cases, seems a

-66

distinction

without

difference.

To

hold

that

busy

arresting officers must leave a suspect's car behind if they

lack information about

the surrounding neighborhood's crime

rate runs contrary to the rationale that underlies the

law authority, for it
the cases

invites the very kinds of

hold justify

case

risks that

impoundment procedures such

as the

one here at issue.

Given
us basically
of,

the extensive authority, this case seems to

to involve

existing law.

application of, not

And, we

any extension

have not considered the case as

if we were writing Fourth Amendment law on a blank slate.

For these reasons,
court is

the judgment

of the

district

Affirmed.
________

-77

BOWNES,
again
on

dissenting.

Once

the Fourth Amendment has become a casualty of the "War

Drugs."

seizure

Senior Circuit Judge,

_____________________

of

The

majority

an

automobile

Administration as

opinion
by

treats the
the

a routine matter and

Drug

warrantless
Enforcement

approves the seizure

simply

because

the

agents

"standard procedures."
of

the

said

that

they

followed

DEA

I do not think that the requirements

Fourth Amendment

should

be

so cavalierly

shunted

aside.
I start with
court's

findings in

appeal unless they

the standard of
a

review.

suppression hearing

are clearly erroneous.

Lanni, 951 F.2d 440, 441 (1st Cir. 1991).

_____
review the
most

record of

the suppression

favorable to the government.

end there.

district

are binding

on

United States v.
_____________
This means that we

hearing in

But our

the light

review does not

The district court's

"ultimate conclusion" must

be subjected to "plenary review."

United States v. Sanchez,

______________
_______

943 F.2d 110,

112 (1st Cir. 1991).

v. Ibarra, 955 F.2d 1405, 1409

______
the

district

`clearly

court's

erroneous'

determination of
seizure and

factual
standard

See also, United States

___ ____ _____________

(10th Cir. 1992) ("[a]lthough

findings are
of

review,

the reasonableness of . .

search is a

question of law

this court de novo.").

-88

subject
the

to

ultimate

. [an officer's]
to be

reviewed by

The court of
when a

appeals must also

criminal defendant moves to

bear in mind

that

suppress evidence seized

without a warrant

in violation of the

Fourth Amendment, the

government bears

the burden of proving

that the warrantless

seizure

falls within

warrant requirement

one of

the narrow

of the Fourth

exceptions to

Amendment.

As

the

the Court

has stated:
Over and again this Court has emphasized
that
the
mandate of
the Amendment
requires adherence to judicial processes.
See Weeks v. United States, 232 U.S. 383
___ _____
______________
(1914); Agnello v. United States, 269
_______
_____________
U.S. 20 (1925). Only where incident to a
valid
arrest,
United
States
v.
_______________
Rabinowitz, 339 U.S. 56 (1950), or in
__________
"exceptional circumstances," Johnson v.
_______
United States, 333 U.S. 10 (1948), may an
_____________
exemption lie, and then the burden is on
those seeking the exemption to show the
need for it, McDonald v. United States,
________
_____________
335 U.S. 451, 456 (1948).
United States v. Jeffers, 342 U.S. 48, 51 (1951).
______________
_______

See also,
___ ____

United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992)
______________
________
(burden

is

on

government

to

show

reasonableness

of

warrantless search including demonstrating that

within one of the

narrow exceptions to warrant requirement);

Ibarra,
______

955

showing

warrantless seizure

F.2d at

1409-10

(government

Cir. 1989)

entitlement to

bears burden

of auto satisfies

Fourth Amendment); United States

_____________
141 (1st

search comes

exception to

v. Rutkowski, 877 F.2d 139,

_________

(government has burden

"plain view" exception to

warrant requirement); Wayne R.

of

of establishing

Fourth Amendment's

LaFave, 4 Search and Seizure,

-99

11.2(b) at 218 n. 23 (2d ed. 1987 & Supp. 1991) (government

always has

burden of

proving applicability of

exception to

warrant requirement).
I

now

turn to

the

law on

impoundment

of motor

vehicles which the majority either ignores or misstates.

The

United

right of

the

persons, houses, papers,

and

States Constitution

people to

be secure

effects, against
U.S.

Const.

guarantees "[t]he

in their

unreasonable searches and seizures.

amend.

IV.

Generally,

search

. . ."

of private

property is unconstitutional unless it is conducted

to

a properly issued search warrant.

389 U.S. 347, 357 (1967).

however,

warrantless

"reasonable."
arises

One such

searches

automobile.
that a

temporary

of "securing or

as

exercise of their "community

custody

of

search of the

privately-owned

police

which had

car and its

intrusion which

principles.

automobile made

procedures" and for the purpose

protecting the

364, 372 & 373 (1976).

vehicle

upheld

In such circumstances the Supreme Court has held

"pursuant to standard police

Amendment

been

Dombrowski, 413 U.S. 433, 441

__________

warrantless inventory

reasonable

have

exception to the warrant requirement

caretaking functions," Cady v.

____
acquire

Katz v. United States,

____
_____________

In a limited number of situations,

when the police, in the

(1973),

pursuant

South Dakota
____________

does

contents" is

not

been parked

-1010

in a

offend Fourth

v. Opperman,
________

In Opperman, the police

________

428 U.S.

impounded a

no-parking zone.

The

Court stated that the

remove

from

the

threatening

vehicles

safety

and

impeding

interests

Opperman
________

which

automobile:

Court

justify

(1)

convenience

identified

the

is

three

inventory

(2) protection of the

regarding lost

or

beyond

search

danger.

Id.
___

Before the

can arise, however,

must

custody

legitimate

inventoried."

of

an

police against claims

protect these interests

have

distinct

or stolen property; and (3) protection of the

from potential

Cir.

traffic

protection of the owner's property while in

police custody;

(2d

seize and

Id. at 369.
___

The

police

streets

public

challenge."

"authority of the police to

of

the

need

"the government
property

to

United States v. Jenkins, 876 F.2d 1085,

_____________
_______

1989)

(citations

omitted).

to

See
___

be
1089

Illinois
________

v.

Lafayette, 462 U.S. 640, 648 (1983); United States v. Pappas,

_________
_____________
______
613 F.2d 324, 330 (1st Cir. 1979).
The DEA agents testified at the suppression hearing
that they impounded the
of

theft or

vehicle to protect it from

vandalism, "and

as part

of the

agency."

The

agents' perceived risk of theft

however,

was

not

character
agency"

of the

supported

by

any

facts

neighborhood, nor were

explained or

put in

before the court was that

evidence.

rules

the risk
of the

or vandalism,
regarding

the "rules
The only

the car was legally parked

the

of the
evidence
at the

edge of a public

street in a residential neighborhood.

The

-1111

district

court accepted

the agents'

without question and

did not

standard

to justify

procedures

therefore,

is whether

this case, justified

and its
in

contents.

cases such as

impound
effected

realm of

the

seizure.

"Framed precisely,
this is not

impound and

under the

DEA

issue,
facts of

to protect it

the critical question

some absolute

sense, or

solicitously, but

the method chosen

needed to
could have
whether the

for implementing

circumstances, within the

United States v.
_____________

F.2d 780, 786 (1st Cir.

The

whether the police

were, under all the

reason."

existence of

in impounding Ramos' car

an impoundment more

that decision

rely on the

the agents were,

the vehicle in

decision to

"safety" justification

Rodriguez-Morales, 929
_________________

1991), cert. denied, 112 S.

_____ ______

Ct. 868

(1992).
The majority relies heavily on

the Supreme Court's

decision in Colorado v. Bertine, 479 U.S. 367 (1987).

________
_______
the Bertine facts differently than
_______
the

my brothers.

I read

In

Bertine
_______

Court upheld municipal regulations of Boulder, Colorado,

that

gave

between
public

its

police

impounding a
parking

officers the
car and

activity."
of

this

Id. at 375.
___
case, as

the

of

that

in a

of

suspicion

as

locking it

exercised according to standard criteria and on the basis

than

long

choose

is

other

"so

parking and

to

discretion

something

place,

discretion

evidence

of

Bertine does not control

_______
majority

mistakenly

criminal
the facts

asserts.

In

-1212

Bertine,
_______

the officers could not

was located
driving;

at

the

time

of

have left the

Bertine's

car where it

arrest

for

drunk

they had to choose between parking the vehicle in a

public lot or impounding

grant to the

it.

The Court determined

officers of such discretion

of that discretion were both reasonable.

that the

and their exercise

In this case,
Ramos'

car.

It

neighborhood.

was

There

the officers had

no reason to

legally

in

was

no

parked
evidence

that

move

residential
the

car

was

interfering with traffic, either automotive or pedestrian, in

any way.
to

The DEA agents

stressed that the car was impounded

protect it from vandalism, but there was no evidence that

cars parked in the neighborhood had been vandalized regularly

or intermittently.
Bertine,
_______

whether the

discretion
Instead,
agents

The question here

police

to impound

was in

appropriately exercised

to impound the car

the question is

is not, as it

because they had

whether it was

the vehicle

given the

their

to move it.

reasonable for the

fact that

it was

lawfully parked in a residential area at the time of arrest.

Courts have upheld the reasonableness
by

law enforcement

where

leaving the vehicle where

threat to

public safety

thieves or
at

785

officials to

vandals.

(shoulder of

impound vehicles
it was would

or present

See, e.g.,
___ ____
busy

of decisions
in cases

either pose a

an inviting

target for

Rodriguez-Morales, 929 F.2d

_________________
interstate

-1313

highway

when

no

occupant

properly

Velarde,
_______

903

licensed

F.2d 1163,

to

drive);

1166-67

(7th

United States
______________
Cir. 1990)

v.

(same);

United States v. Kornegay, 885 F.2d 713, 716 (10th Cir. 1989)
_____________
________
(parked

in private lot and

operator), cert.
____
v. Brown,
_____
drunk,

police did not

denied, 495 U.S. 935

______

787 F.2d 929,

(1990); United States

_____________

932 (4th Cir.)

no known sober person

know identity of

(occupants appeared

was available to take custody,

and car, if left unattended, could present a nuisance), cert.

____
denied,
______

479 U.S.

F.2d 220, 224

837 (1986);

(6th Cir.

United States v.
_____________

1985) (arrest

Duncan, 763
______

on public

highway);

United States v. Johnson, 734 F.2d 503, 505 (10th Cir. 1984)
______________
_______
(parked in private

lot, exposed to vandalism,

and owner was

inebriated); United States v. Griffin, 729 F.2d 475, 480 (7th

_____________
_______
Cir.)

(neither

occupant

could

legally

remove

emergency lane of highway and leaving it there

hazard and theft

risk), cert. denied,

____ ______

United States v. Staller, 616

_____________
_______
(legally parked

in shopping

car

would present

469 U.S. 830

F.2d 1284, 1289-90 (5th

mall parking lot,

from

(1984);
Cir.)

but arrested

driver was from out of state and nobody else was available to

assume responsibility),
United States v.
______________

cert. denied,
____ ______

Taddeo, 724
______

1989) (stopped in a bus lane

the center

F. Supp.

956 (2d

B.M.W. 750IL,
_____________

716 F.

869 (1980);

81, 82-3

(W.D.N.Y.

on a busy six-lane highway near

of downtown Rochester

aff'd, 932 F.2d

_____

449 U.S.

just prior to

rush hour),

Cir. 1991); United States v.

______________
Supp.

171,

173-74

(E.D.

Pa.)

1988
____
(no

-1414

licensed

driver

street corner

available

and exposed

to

remove vehicle

to risk of

parked

theft or

near

vandalism),

aff'd without opinion, 891 F.2d 284 (3d Cir. 1989).

_____________________
The

majority cites

support of its conclusion that

was legal.
the

In so doing, the

factual differences

many

of these

same cases

in

the impoundment of Ramos' car

majority has failed to consider

between

the cited

cases and

this

case.

Despite the clear factual differences from the line of

cases

supporting the reasonableness

of decisions to impound

vehicles

for

the

protection of

public, the district

conclusions about
car

where it

street."

the risks

the

owner or

agents' unsupported

associated with leaving

legally parked

the

"at

the edge

Ramos'
of

the

Now the court of appeals compounds this error.

supported
there

court

of

did

reasonableness of

would have

that

residence

district

the

vandalism had
first,

court accepted the

was:

The

that

either

been a

they left
the

witnessed the arrest.

the

and,

were

that

threat of

where

unsure

second,

two

factors

agents' determination

serious

the vehicle

officers

Ramos;

find

that

it was

about

theft or
parked:

the

actual

several

people

In the words of the district court:

at the time of the arrest, the agents

were uncertain of the defendant's actual
residence.
Under these circumstances,
the
agents
could
have
reasonably
concluded that the defendant's vehicle
could be subject to theft or vandalism if
it
remained
parked
where it
was,

-1515

especially in light of the fact that

several persons witnessed the arrest.

Despite
uncertainty
had

no

the

about Ramos' actual

significance

vandalism

of

his

independently
dependent

reasonableness

of Ramos'

perceived

risk

Those

actual residence.

character

for car theft and

the

agents'

residence, that uncertainty

automobile.

upon the

propensity

for the

of

of the

of

theft or

risks

existed

Such

risks are

neighborhood and

vandalism in the

area.

all, the odds of the car being stolen or vandalized

for a stranger who

parks his car in an area with

of car theft, than

those for a resident of a

who parks his car

offered by
or

the

outside his home.

trial

to

support

neighborhood in which
with either
The location
to

Ramos and

a high or low

vehicles

of

high-risk area

characterization
his car were

risk for car theft

The alleged
arrestees

a low rate

in

evidence

the suppression hearing

of the actual residence of

this determination.

leaving

the

After

are less

There was no

the government at either

the

of

the

found as

one

or vandalism.

Ramos is irrelevant
DEA "policy"

against

"unknown locations"

is

overbroad, if not completely irrational.

The second, and
court
the

connected, reason supplied

by the

in support of its ruling, that there were witnesses to

arrest, is

simply not

suppression

hearing.

At

question of

whether others

supported in
the

suppression

were present
-1616

the record

of the

hearing,

near the

the

scene of

arrest

arose

testified in
about what

on

four

occasions.

First,

response to questions posed

happened when

he asked

Agent

Ramirez

by the prosecutrix

a bystander

whether the

person he saw get into the Honda Accord was, in fact, Ramos:
A

I asked the person who was near on the house

next to where his car was parked if he was
Willy, and that
person responded in the
affirmative . . . .
. . . .

What happened to that individual that you had

inquired from, if he was Willy?

At that
him.

Was he there when you arrested defendant Ramos

Morales?

No madam, he was not.

moment I don't know

Second, Agent Ramon testified about

what happened to

what the agents did when

they first spotted the Honda Accord registered in the name of

Ramos:
A

[S]ince [we] did not see anybody on the

streets we decided to wait, and so we
established surveillance on that street
which is a dead end street.

Third, on cross-examination, Ramon

remember

seeing Vadiz next to

testified that he did not

Ramos' car just

prior to the

moment when Ramos entered his vehicle:

Q

[D]id you see another man next to

immediately next to Mr. Ramos's car?

Not that I recall, Sir.

that

car,

-1717

Fourth, Vadiz, as a witness for the defendant, testified that

he was present at the scene of the arrest and that DEA agents
prevented
district

Ramos from

giving him

custody of

the car.

The

court, in its suppression order explicitly rejected

this

testimony, stating:

"[t]he

that

the 19-year-old neighbor was not present at the time of

defendant's

arrest.

After

agents

that

the

and

testimony of

of

the agents

agents

further testified

hearing

the

testimony of

the

neighbor,

the

Court

the

more credible

than

finds

that of

Guido

[sic] Vadiz."
Therefore, there
the

suppression

finding that

hearing

was no evidence in
supporting

the

"several persons witnessed the

the record of

district

court's

arrest."1

Even

if there had
or at
not

been such evidence at

the trial itself,

such evidence, without

support a finding of

without a warrant.
major urban area

bystander.

Were

the suppression hearing,

probable cause to

It is difficult
which is not
that

more, would

seize a vehicle

to imagine any arrest in

witnessed by at

sufficient reason

to

least one

justify

the

seizure of a car at the time of arrest, the limited exception

to the
such

warrant requirement

based on

exigent circumstances,

as the protection of public safety or the prevention of

____________________
1 According to the government's own brief, "prior to the
arrest, there were neighbors in the immediate area. During
and after the arrest no one was within sight." Brief for
Appellee at 9 n.5.
-1818

theft

or vandalism,

would soon

Tenth

Circuit has noted, "Opperman cannot be used to justify

________

the automatic inventory of

owner.

The

swallow the

rule.

every car upon the arrest

justifications for the

crafted for this to be the intent."

rule are

As the

of its

too carefully

United States v. Pappas,

_____________

______

735 F.2d 1232, 1234 (10th Cir. 1984).

In United States v. Pappas,
_____________
______

613 F.2d 324 (1st Cir.

1979), this court held that even when the government impounds
a vehicle because its

agents have reason to believe

is subject to forfeiture under 21 U.S.C.

fulfill

the warrant

requirement in

the absence

Id.
___

agreed, holding

that warrantless seizures under

one of

The

881(b)(4), it must

circumstances.

"must meet

at 330.

the recognized

Second Circuit

exceptions to

amendment's warrant requirement."

that it

of exigent
recently
881(b)(4)
the fourth

United States v. Lasanta,

______________
_______

Nos. 91-1724, 91-1725, 92-1008, 1992 Allfeds WL 297090, at *3

(2d Cir. Oct. 21, 1992).

where

If

the warrant

the

government

requirement must
has

justification for impounding a

of

be met

legitimate,

statutory

vehicle, surely the existence

a vague "agency policy" is no substitute for a warrant in

the circumstances

presented by this case.

Bertine does not

_______
___

stand for the proposition that so long as a

to

in cases

be

following

automobile

standard

procedures,

without a warrant.

-1919

DEA agent claims

he

can

seize

an

In Bertine, the Court merely

_______

held that when the police must remove a car from the scene of
an

arrest, they

may,

in accord

with standard

procedures,

either park and lock the car in a public place or impound the
vehicle and conduct
the Bertine
_______

an inventory search.

rule was not

met in

The predicate

this case.

There was

to
no

evidence showing that the

agents had any legitimate reason to move Ramos' vehicle.
majority has

extrapolated from

decide this case.

think

Bertine how the

_______

The

Court would

This may be a reasonable prediction, but I

we are restricted to the facts and holdings of Bertine

_______

as it was issued.
In summary, a careful
that

there was

review of the record reveals

no evidence before

the district

court that

Ramos' car was located in an area that exposed it to the risk

of

vandalism or theft, and

judicial

notice

neighborhood.

that

the

There was no

the district court

car

was

parked

as

to whether

in

evidence to support the

finding that there were witnesses to the arrest.

certainty about the actual

did not take

such

court's

The lack of

residence of Ramos was irrelevant

sufficient exigent

circumstances existed

to

justify the warrantless seizure of his automobile.

lack

Given the

of supporting evidence in the record, I cannot join the

majority.
The majority completely ignores the issue of burden
of

proof.

The government bears the burden of proof whenever

-2020

it seeks to justify
lack

of

warrantless seizures.

any supporting

evidence,

this

Today,

despite a

court affirms

the

agents' naked conclusion that leaving Ramos' car where it was

parked when Ramos was
vandalism.

arrested presented a risk of

This means

agent seizes

future, any time

a DEA

automobile without a

warrant, all

she need say is that she did so "to protect the

car from the

dangers
wait

a suspect's

that in the

theft or

of theft and vandalism."

until

effecting an
the agents

suspect

gets

arrest because,
can

impound the

search
withoutprobablecauseand

DEA agents will now surely

into

his

automobile

once the suspect

car

and conduct

before

is arrested,
an

inventory

intheabsence
ofexigentcircumstances.
Today's
constitutional

decision

doctrine.

is

not

As a

compelled

court of

recognize

that our first duty is

as it has

been interpreted by the

by

current

appeals, we

must

to uphold the Constitution

Supreme Court.

We ought

not diminish and circumscribe the protections of

the Bill of

Rights

the Supreme

in

Court.

the absence
The

majority

of a

clear

gives

command by

judicial

sanction

to

the

impermissible seizure of a citizen's automobile that violates

the requirements
lamentably,

of the Fourth

another

step in

Amendment.
the

judicial

freedoms guaranteed by the Bill of Rights.

-2121

This

ruling is,

erosion of

the