Split Widened: Is a Standardized Impoundment Policy Constitutionally Required?

Per United States v. Smith, 2008 WL 942666 (3d Cir. Apr. 9, 2008)

Seeing defendant Smith in the passenger seat of a car, two patrolmen stopped the car because they knew that Smith had an outstanding arrest warrant. During the arrest, the driver started a fight with one of the officers. Subsequently, both the driver and Smith were arrested, leaving no one available to take possession of the car. The police officers concluded that they should not leave the vehicle where it was, because it was a rough neighborhood and the car might be damaged or stolen. After impoundment, a routine warrantless inventory search revealed a loaded semi-automatic handgun. Smith admitted that he had placed the weapon there and was charged for being a felon in possession of a firearm. Smith moved to suppress the gun, arguing that the decision to impound was unconstitutional in the absence of any standardized policy governing the officers’ discretion.

Judge Greenberg, on behalf of a unanimous panel, recognizes that the circuits have split on this point. The source of the disagreement is ambiguous language contained in the Supreme Court’s decision in Colorado v. Bertine. There, the Court upheld an impoundment where officers had the discretion either to park and lock the vehicle or to impound it, stating that “[n]othing in [previous cases] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria . . . .” Should this language be read to create a prophylactic rule requiring standard criteria, or simply a rejection on a false limitation of police discretion?

The CAs 1 and now 3 do not require a standard procedure (although encouraging their adopition), but have held that the proper test is whether the impoundment was reasonable given the circumstances – applying the Fourth Amendment directly. On the other hand, the CAs 8,DC both read Bertine to require a policy document that cabins the officers’ discretion – reading Bertine as a new prophylactic requirement.

Finally, if you think I have been busy today, you should check out the Tenth Circuit Blog for its many interesting entries today.