Petition for Writ of Certiorari — Rodriguez-Morales v. United States

Neal ouprems VOU, v.ve

Q1e5 2 FILED

JUL ' 1991

aa GFFIGE-OF THE CLERK

In The

Supreme Court of the United States

-—

——

October Term, 1991

OSVALDO .ODRIGUEZ-MORALES,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE FIRST CIRCUIT

JOSEPH A. BEVILACQUA, JR.

Attorney for Petitioner

380 Broadway

Providence, Rhode Island 02909

(401) 274-7444

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*NJ (201) 257-6850°(800) 3 APPEAL ®*NY (212) 840-4640°eMA (617) 542.1114

DC (202) 783-7288*PA (215) 925-6500*USA (800) 5 APPEAL

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QUESTIONS PRESENTED

I. Did the Court of Appeals err in finding that the initial

stop of petitioner’s vehicle by Rhode Island state troopers was

legal (Opinion at 6a-7a)?

IJ. Did the Court of Appeals err in not deciding whether

the Rhode Island state troopers illegally arrested petitioner which

led to the subsequent seizure of cocaine from petitioner’s

automobile (Opinion at 7a)?

III. Did the Court of Appeals err in not suppressing the

evidence seized from petitioner’s automobile (Opinion at 17a)?

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TABLE OF CONTENTS

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i. The Court of Appeals erred in finding that the initial

stop of petitioner’s vehicle by Rhode Island state

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Il. The Court of Appeals erred in not deciding whether

the Rhode Island state troopers illegally arrested

petitioner which led to the subsequent seizure of

cocaine from petitioner’s automobile. ...........

Ill. The Court of Appeals erred in not suppressing the

evidence seized from petitioner’s automobile. ....

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921 (1972)

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Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637 (1979)...... 4, 8

Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394 (1969)

i 7

Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391 (1979)

ek RI es a 4, 5,6

Dunaway v. New York, 442 U.S. 200 (1979) .......... 6, 7, 8

Florida v. Royer, 460 U.S. 491 (1982) .................. 3,4

iaereeeens ¥. Puen, 420 U.S. 103 (1975) ................. 8

Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643 (1985)

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Henry v. United States, 361 U.S. 98, 80S. Ct. 168, 4 L. Ed.

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Silverthorn v. United States, 251 U.S. 385 (1920) ....... 8

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) ...... a» ey 7

United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574

dein es Sy ove sccses cedar eeeuwes 4

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Contents

Page

United States v. Cruz Jiminez, 894 F.2d 1 (1st Cir. 1990)

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United States v. Gilliard, 847 F.2d 21 (Ist Cir. 1988).... 6

United States v. Hensley, 469 U.S. 221 (1985) .......... 7

United States v. Lott, 870 F.2d 785 (Ist Cir. 1989)...... 6

United States v. Martinez, 800 F.2d 1050 (8th Cir. 1986)

PE ce TE EE Ee EN SOR ge" 6

United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568 (1985)

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United States v. Watson, 423 U.S. 411 (1976) .......... 8

Wong Sun v. United States, 371 U.S. 471 (1963)........ 8

Statute Cited:

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United States Constitution Cited:

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APPENDIX

Appendix A — Opinion of the United States Court of Appeals

for the First Circuit Dated March 27, 1991......... la

No.

In The

Supreme Court of the United States

October Term, 1991

OSVALDO RODRIGUEZ-MORALES,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS FOR THE FIRST CIRCUIT

Petitioner prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the First

Circuit entered March 27, 1991.

OPINION BELOW

The opinion of the United States Court of Appeals for the

First Circuit was rendered on March 27, 1991. A copy of the

opinion and judgment is annexed as Appendix ‘‘A’’.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

First Circuit was entered on March 27, 1991. Jurisdiction of this

Court is invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

SF

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Fourth Amendment to the United States Constitution:

The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable searches and seizures, shal! not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.

STATEMENT OF THE CASE

The petitioner seeks certiorari from the Court of Appeals

for the First Circuit. The United States District Court for the

District of Rhode Island (Boyle, Ch. J.) granted petitioner’s motion

to suppress the cocaine which was seized from his automobile

on September 12, 1990. The Government appealed the District

Court’s decision. Petitioner in his brief argued that: (i) the State

Police did not have a right to stop petitioner’s automobile on

Route 95; (ii) the State Police illegally arrested petitioner on Route

95; (iii) the evidence seized from petitioner’s vehicle should be

suppressed; and that (iv) petitioner had standing to contest the

search and seizure. The United States Court of Appeals for the

First Circuit reversed the District Court’s decision and remanded

the case.

HOW THE FEDERAL QUESTION WAS RAISED AND

DECIDED BELOW

1. The District Court granted petitioner’s motion to suppress

the evidence as being the result of an unlawful arrest and unlawful

seizure on September 12, 1990, which was later reversed by the

United States Court of Appeals for the First Circuit.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS ERRED IN FINDING THAT

THE INITIAL STOP OF PETITIONER’S VEHICLE BY

RHODE ISLAND STATE TROOPERS WAS LEGAL.

Prior to Jerry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968),

any restraint On a person amounting to a seizure for the purposes

of the Fourth Amendment of the United States Constitution was

invalid unless justified by probable cause. Florida v. Rover, 460

U.S. 491, 498 (1982). Terry created a limived exception to this

rule. In Jerry, the Supreme Court ruled that, where specific and

articulable facts available to the police officer at the time of the

encounter with a suspect would warrant a man of reasonable

caution to believe that criminality is afoot, this ‘‘reasonable

Suspicion’’ satisfies the Fourth Amendment reasonableness

requirement for the purposes of a temporary ‘‘stop and frisk’’

search. 392 U.S. at 21-22. In subsequent cases, the Court extended

Terry beyond the ‘‘stop and frisk’’ situation to encompass

inventory stops.

A brief stop of a suspicious individual, in

order to determine his identity or to maintain the

status quo momentarily while obtaining more

information, may be most reasonable in light of

the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 146, 92S. Ct. 1921, 1923 (1972).

The Supreme Court has consistently adhered to the

requirement that, in order to stop and question a person, a police

officer must have a reasonable suspicion of criminality that is

based upon specific and articulable facts and the reasonable

inferences that can be drawn from those facts. See Brown v. Texas,

443 U.S. 47, 52, 99S. Ct. 2637, 2641 (1979); Delaware v. Prouse,

440 U.S. 648, 654, 99 S. Ct. 1391, 1396 (1979); United States

v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S. Ct. 2574, 2580 (1975).

The scope of the intrusion permitted will vary

to some extent with the particular facts and

circumstances of each case. This much, however,

is clear: an investigative detention must be

temporary and last no longer than is necessary to

effectuate the purpose of the stop. Similarly, the

investigative methods employed should be the least

intrusive means reasonably available to verify or

dispel the officer’s suspicion in a short period of

time.

In Florida v. Royer, 460 U.S. 491, 500 (1982). ‘‘It is the State’s

burden to demonstrate that the seizure it seeks to justify on the

basis of reasonable suspicion was sufficiently limited in scope and

duration to satisfy the conditions of an investigative seizure’’. /d.

Applying these principles of law to the instant situation, it

is clear that the Rhode [sland State Police Officer’s initial stop

of Mr. Rodriguez-Morales’ automobile was violative of his Fourth

Amendment rights. The undisputed facts show that Detective

Denniston and his partner initially stopped Mr. Rodriguez-Morales

for one reason alone — because the passenger was leaning out

of the car window. The police officers did not stop Mr. Rodriguez-

Morales for any traffic violation, nor did they stop him for having

darkened automobile windows. The police officers allege no reason

for the stop other than the fact that they observed someone leaning

out the passenger window and apparently yelling at a passing car.

Detective Denniston refers to this conduct by the passenger as

apparently confrontational. Detective Denniston admitted that

no law was being broken by Mr. Rodriguez-Morales or his

passenger.

Clearly, the officers in the instant case, who were positioned

on Route 95 solely to stop drugs coming into the state were acting

pursuant to a ‘‘hunch’”’ when they stopped Mr. Rodriguez-Morales

on Route 95. This is the type of discretionary police investigatory

conduct which the Supreme Court finds abhorrent to the principles

of the Fourth Amendment.

In Delaware v. Prouse, the Supreme Court held that a random

stop of a driver to check his license and registration was

unreasonable under the Fourth Amendment. 440 U.S. 648, 99

S. Ct. 1391 (1979). The Prouse Court stressed that:

When there is not probable cause to believe

that a driver is violating any one of the multitude

of applicable traffic and equipment regulations —

or other articulable basis amounting to reasonable

suspicion that the driver is unlicensed or his vehicle

unregistered — we cannot conceive of any

legitimate basis upon which a patroiman could

decide that stopping a driver for a spot check would

be more productive than stopping any other driver.

This kind of standardiess and unconstrained

discretion is the evil the Court has discerned when

in previous cases it has insisted that the discretion

of the official in the field be circumscribed, at least

to some extent.

Id. 440 U.S. at 661. Detective Denniston openly admitted that

there was no evidence of criminal behavior at the time he decided

to stop Mr. Rodriguez-Morales automobile.

It is well settled that, for the purposes of a /ferrv stop, the

‘‘otficers’ reasonable suspicion may not be based on gut instinct’’.

United States v. Gilliard, 847 F.2d 21, 24 (Ist Cir. 1988).

The stop of petitioner’s car does not fit within the limited

exception of Jerry and its progeny, and any evidence obtained

as a result of this unconstitutional detention must be suppressed.

United State v. Lott, 870 F.2d at 785 (Ist Cir. 1989).

THE COURT OF APPEALS ERRED IN NOT DECIDING

WHETHER THE RHODE ISLAND STATE TROOPERS

ILLEGALLY ARRESTED PETITIONER WHICH LED TO

THE SUBSEQUENT SEIZURE OF COCAINE FROM

PETITIONER’S AUTOMOBILE.

It is well settled that ‘‘[t}he removal of the suspect from the

scene of the stop to police headquarters usually marks the point

at which an investigative stop becomes a de facto arrest.’’ United

States v. Martinez, 800 F.2d 1050, 1055 (8th Cir. 1986). ‘‘There

can be little doubt that [the suspect] was ‘seized’ in the Fourth

Amendment sense when he was taken involuntarily to the police

station.’’ Dunaway v. New York, 442 U.S. 200, 207 (1979). On

a number of occasions, the United States Supreme Court has ruled

that a suspect may not be transported to a police station for

invesiigative purposes, whether for interrogation or fingerprinting,

absent probable cause or judicial authorization. See e.g., Davis

v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394 (1969); Dunaway,

442 U.S. at 212; United States v. Sharpe, 470 U.S. 675, 105 S.

Ct. 1568 (1985); United States v. Hensley, 469 U.S. 221 (1985);

Haves v. Florida, 470 U.S. 811, 815-16, 105 S. Ct. 1643, 1646-47

(1985); see also, Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868

(1968). (‘‘It must be recognized that whenever a police officer

accosts an individual and restrains his freedom to walk away,

he has ‘seized’ that person’’). Significantly the Supreme Court

has ruled that:

There is no doubt that at some point in the

investigative process, poiice procedures can

qualitatively and quantitatively be so intrusive with

respect to a suspect’s freedom of movement and

privacy interests as to trigger the full protection

of the Fourth and Fourteenth Amendments. And

our view continues to be that the line is crossed

when the police, without probable cause or a

warrant, forcibly remove a person from his home

or other place in which he is entitled to be and

transport him to the police station, where he is

detained, although briefly, for investigative

purposes. We adhere to the view that such seizures,

at least where not under judicial supervision, are

sufficiently like arrests to invoke the traditional

rule that arrests may constitutionally be made only

on probable cause.

Haves v. Florida, 470 U.S. 811, 815-16, 105 S. Ct. 1643, 1646-47

(1985).

In line with the Court’s decision in Haves, it is clear that,

in the instant case, a de facto arrest of Mr. Rodriguez-Morales

occurred at the time the police officers ordered him to be

transported to Hope Valley Barracks. It is equally clear from the

Hayes decision that such a seizure could constitutionally be made

only if supported by probable cause.

In certain instances, police officers may lawfully make

warrantless arrests. Gerstein v. Pugh, 420 U.S. 103, 113 (1975).

To make a lawful arrest without a warrant, police officers must

have probable cause to believe that the person to be arrested has

committed or is committing a crime. United States v. Watson,

423 U.S. 411 (1976). Probable cause exists if the facts and

circumstances known to the officer at the time of the arrest are

sufficient to warrant a prudent or careful person in believing that

the suspect has committed a crime. See Dunaway v. New York,

442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Henry

v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 171, 4 L. Ed.

2d 134, 138-¢1999).

The Supreme Court disapproves of arrests made for

investigatory purposes on less than probable cause. See Brown

v. Illinois, 422 U.S. 500 (1975); Davis v. Mississippi, 394 U.S.

721 (1969).

THE COURT OF APPEALS ERRED IN NOT

SUPPRESSING THE EVIDENCE SEIZED FROM

PETITIONER’S AUTOMOBILE.

Since the arrest and detention of Mr. Rodriguez-Morales was

unsupported by probable cause, any evidence obtained as a result

of the unlawful arrest must be excluded. Wong Sun v. United

States, 71 U.S. 471 (1963); Silverthorn v. United States, 251 U.S.

385 (1920); United States v. Cruz Jiminez, 894 F.2d 1, 7 (1st Cir.

1990).

7)

CONCLUSION

For these reasons petitioner respectfully urges that this Court

grant certiorari to determine whether the actions of the Court

of Appeals tor the First Circuit as set forth above were in error.

Dated: June 27, 199}.

Respectfully submitted,

JOSEPH A. BEVILACQUA, JR.

Attorney for Petitioner

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT DATED

MARCH 27, 1991

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 90-1955

UNITED STATES OF AMERICA,

Appellant,

OSVALDO RODRIGUEZ-MORALES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge|

Before

Breyer, Chief Judge,

Bownes, Senior Circuit Judge,

and Selya, Circuit Judge.

Sean Connolly, Attorney, United States Department of

Justice, with whom Lincoln C. Almond, United States Attorney,

Margaret E. Curran and Lawrence D. Gaynor, Assistant United

States Attorneys, were on brief for the United States.

2a

Appendix A

Russell M. Sollitto, with whom Joseph A. Bevilacqua, Jr.

was on brief for appellee.

March 27, 199}

SELYA, Circuit Judge. This appeal arises out of a pretrial

order of the United States District Court for the District of Rhode

Island suppressing certain evidence. We have jurisdiction under

18 U.S.C. § 3731. The appeal highlights important aspects of

the interface between the fourth amendment and the constabulary’s

community caretaking function. It also presents us with an

opportunity to clarify the law in this circuit concerning canine

sniff tests. Believing, as we do, that the district court erred in

its formulation of the applicable legal principles, we reverse and

remand with directions to vacate the suppression order.

I. THE FACTS

On April 20, 1990, two Rhode Island State Police detectives,

Thomas Denniston and Thomas O’ Hearn, were assigned to drug

interdiction duty on Route I-95 in the area of the Rhode

Island/Connecticut state line. Their unmarked car was parked

On a grassy median strip when, at approximately 10:30 a.m., they

observed a Toyota with New York license plates driving

northbound in the high speed lane. A passenger was leaning out

of the window with his head, arms, and shoulders outside the

car. He appeared to be screaming at another northbound vehicle

(a Chevrolet). Thinking that an altercation between two moving

cars was brewing the troopers took up dogged pursuit. They

radioed for back-up and, in due course, Lieutenant James

Dougherty responded.

At a point eight to ten miles from the locus of the initial

3a

Appendix A

sighting, the police forced the two civilian vehicles to roadside.

While Lieutenant Dougherty concentrated on the Toyota, the

detectives approached the Chevrolet. The driver produced a valid

license and registration. He explained that the passenger in the

Toyota was merely asking for directions to Boston. In time, the

Chevrolet was allowed to depart.

Meanwhile, the driver of the Toyota, defendant-appellee

Osvaldo Rodriguez-Morales (Rodriguez), at first produced no

driver’s license. He identified himself to Dougherty and stated

that his date of birth was March 3, 1969. Eventually, Rodriguez

produced an expired Puerto Rican license that gave his birth date

as March 2, 1969. When Denniston joined Dougherty, he inspected

the license closely and found it to be suspect. A second piece of

identification tendered by Rodriguez contained yet another date

of birth (March 3, 1967). In answer to Denniston’s query,

Rodriguez told the officers that he was going to Boston to visit

his aunt, but he could not provide either her address or telephone

number. For that matter, he could not identify his passenger other

than by the sobriquet ‘‘Sammy.’’ These anomalies prompted

Denniston to question the passenger out of Rodriguez’s earshot.

Identifying himself as Pedro Martinez, the passenger told

Denniston that he and the defendant were travelling to Boston

‘o visit Martinez’s mother, who was hospitalized.

Computer checks revealed no outstanding warrants for either

individual. The computer also confirmed that the Toyota was

registered to Rodriguez at an address in the Bronx; that

Rodriguez’s birth date, as contained in the records of the New

York motor vehicle registry, was May 5, 1957; and that Martinez’s

driver’s license was suspended.

To this point, the stop had lasted between fifteen and thirty

4a

Appendix A

minutes. The troopers decided to take the two men to the state

police barracks for further inquiries. Rodriguez drove his own

car to the barracks with O’Hearn as a passenger. Martinez rode

with Denniston in the police cruiser. Upon arrival, the vehicles

were parked behind the barracks. Rodriguez and Martinez were

led into the front reception area and left there, unguarded. (The

barracks had restricted entrance but free egress.)

In the meantime, Denniston, mindful that both men spoke

English with difficulty, sought out a special agent who was fluent

in Spanish. The agent spoke with the men over the telephone;

their stories were basically unchanged from the roadside version.

Rodriguez was asked, in Spanish, to sign a form consenting to

a vehicular search. He refused. Denniston then arranged for a

trained ‘‘drug dog’’ to perform a canine sniff around the Toyota’s

perimeter. The dog reacted in a way that strongiy indicated the

presence of cocaine.

This development initiated a chain reaction: the defendant

and his passenger were placed in < restricted-egress conference

room; the Toyota was moved into a garage on the premises; and

the troopers obtained a judicial warrant enabling them to search

the car. When given access to the passenger side of the car’s

interior, the dog was excited by the door jamb. The police pried

it Open, uncovering several bundles of cocaine. Cocaine was also

found inside the driver’s door. All in all, approximately two

kilograms were recovered. Rodriguez was arrested.’ Traffic

citations were issued to him for (1) driving with tinted windows,

and (2) driving on an expired license. The record is tenebrous

as to whether the citations were issued before or after the arrest

took place.

1. Martinez was also arrested. His case, however, is noi before us.

Sa

Appendix A

In due season, Rodriguez was indicted by a federal grand

jury for possession of cocaine with intent to distribute. See 21

U.S.C. § 841(a)(1) & (b)(1)(B). He moved to suppress the

contraband on fourth amendment grounds. After conducting an

evidentiary hearing, the district court found that the initial stop

of the defendant’s car was valid, but that the troopers’ subsequent

actions during the roadside interlude constituted an arrest (of

defendant) and seizure (of the Toyota) without probable cause.

On that basis, the court ruled that the fruits of the ensuing vehicle

search could not be used against the defendant.

Il. DISCUSSION

On appeal, the government contends that, apart from cases

where the fourth amendment’s warrant requirement is directly

implicated, the Constitution only requires that the police act

reasonably in matters of search and seizure. See, e.g., /l/linois

v. Rodriguez, 110 S. Ct. 2793, 2799-2800 (1990). That standard,

the prosecutor tells us, was satisfied here. We agree.

Whether police activity is reasonable in any particular set

of circumstances is almost invariably a factbound inquiry. The

nisi prius court sees and hears the witnesses and will ordinarily

develop a superior ‘‘feel’’ for what transpired. Hence appellate

oversight is correspondingly deferential; the court of appeals

reviews the district court’s findings of fact following a suppression

hearing, including mixed fact/law findings, under the clearly

erroneous test. See, e.g., United States v. Stanley, 915 F.2d 54,

57 (1st Cir. 1990}; United States v. Figueroa, 818 F.2d 1020, 1024

(Ist Cir. 1987). Of course, if the lower court applies the wrong

legal standard, no deference attaches, and we must proceed to

correct the error. See United States v. LaFrance, 879 F.2d 1, 4

6a

Appendix A

(Ist Cir. 1989).

Both standards of review come into play in this appeal. The

trial judge’s determination that the troopers had reasonable

grounds to stop the Toyota in the first place was fact-dominated

and, to some extent, a credibility call. As such, it is subject to

classic clear-error scrutiny and easily passes muster. The judge’s

next determination, however, rested on the fallacious premise that,

after effectuating the stop, the troopers needed probable cause

in order to impound the defendant’s car and move it to the

barracks. This was error of a ‘‘legal’’ kind, subject to de novo

review in the exercise of our appellate jurisdiction. As we shall

explain infra, the law provides that, so long as the police act

reasonably in carrying out their community caretaking function,

they can impound a vehicle even though probable cause to search

it, Or to arrest the driver, may be lacking. And in this case, having

lawfully impounded the Toyota, the remaining steps which led

to discovery of the cocaine cache did not infract the Constitution.

We proceed step by step through the record to flesh out our

conclusion that there was no basis for suppression of the evidence.

A. On the Hound.

The first step taken by the police consisted of dogging the

defendant’s car, flagging it down, and bringing it to a halt on

the edge of the highway. A traffic stop can be executed as long

as the officers have reasonable grounds to suspect that the person

detained was, is, or will be engaged in criminal activity. See

Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (analogizing

routine traffic stops to pedestrian stop-and-frisk activity pursuant

to Terry v. Ohio, 392 U.S. 1 (1968)). The district court applied

this rule forthrightly in upholding the initial stop. The court

s*

7a

Appendix A

credited ‘‘testimony ... that the officers believe{d] that an

altercation was taking place’’ and found that the defendant’s

arguably reckless driving conferred a right, indeed a duty, on the

officers to intercept the defendant’s vehicle. Since this finding

derives abundant support from the record, it cannot be set aside

on clear-error review. See, e.g., Anderson v. City of Bessemer

City, 470 U.S. 564, 573-74 (1985) (‘‘Where there are two

permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.’’); United States v. Aymelek,

‘snieaa a ae : (ist Cir. 1991) (no clear error so long as

the record contains ‘‘sufficient evidence . . . to support a reasoned

conclusion’’). Hence, the traffic stop itself was reasonable and,

therefore, constitutionally valid.

B. To the Pound.

The defendant argues that, even if the initial stop was

constitutional, Rodriguez’s subsequent detention, including his

involuntary journey to the police barracks, was a de facto arrest,

unsupported by probable cause, and thus improper. Building on

this theme, he asserts that the unlawful arrest poisoned the well,

irremediably tainting the evidence later procured. The district court

believed this was so, grounding its suppression order on this

construct. We think that this flawed reasoning led the court down

a blind alley, which need not, and should not, have been explored.

To be sure, the actions taken by the police following a justified

traffic stop must be ‘‘reasonably related in scope to the

circumstances which justified the [stop] in the first place.’’ United

States v. Lott, 870 F.2d 778, 784 (1st Cir. 1989). But, the actions

taken in this case need not be viewed as indivisible. Once the

troopers pulled over defendant’s car for good cause and discovered

that neither he nor his passenger was properly licensed to drive

it, the question of what to do with the car was a matter separate

8a

Appendix A

and apart from whether the defendant could or could not be

arrested. Let us explicate the point.

The policeman plays a rather special role in our society; in

addition to being an enforcer of the criminal law, he is a ‘‘jack-

of-all-emergencies’’ W. LaFave, Search and Seizure § 5.4(c) (2d

ed. 1987), expected to aid those in distress, combat actual hazards,

prevent potential hazards from materializing, and provide an

infinite variety of services to preserve and protect community

safety. Recognition of this multifaceted role led to the Court’s

coinage of the ‘‘community caretaking’’ label in Cady y.

Dombrowski, 413 U.S. 433 (1973). The rubric is a catchall for

the wide range of responsibilities that police officers must discharge

aside from their criminal enforcement activities. See id. at 441.

Dealing with vehicle-related problems ranks among such

responsibilities. Because of the ubiquity of the automobile in

modern American civilization, and the automobile’s nature —

mechanically delicate, highly mobile, safely operable only by

trained and licensed individuals — the police are constantly faced

with dynamic situations, no two quite identical, in which they,

in the exercise of their community caretaking function, must

interact with car and driver to promote public safety. Not

Surprisingly, our fourth amendment jurisprudence has

incorporated this reality. See, e.g., id.; see also South Dakota

v. Opperman, 428 U.S. 364, 368 (1976) (law officers must

frequently take vehicles into police custody “‘[i]n the interests of

public safety and as part of .. . [their] ‘community caretaking

function’ ’’) (quoting Cady, 413 U.S. at 441).

It is important to recognize that the community caretaking

function is ‘‘totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a criminal

statute.’” Cady, 413 U.S. at 441. Thus, as long as such caretaking

9a

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activities are warranted ‘‘either in terms of state law or sound

police procedure,’’ id. at 447, they do not offend the fourth

amendment. Consequently, evidence which comes to light during

the due execution of the caretaking function is ordinarily admissible

at trial. See Lott, 870 F.2d at 781. Sucn a result is consistent with

the settled rule tiat searches and seizures made for routine

administrative purposes are deemed noninvestigatory and,

therefore, outside the warrant requirement and the probable cause

standard. See Colorado v. Bertine, 479 U.S. 367, 371 (1987);

Opperman, 428 U.S. at 370 n.5. The imperatives of the fourth

amendment are satisfied in connection with the performance of

such noninvestigatory duties, including community caretaker tasks,

so long as the procedure employed (and its implementation) is

reasonable.

In community caretaking cases, as elsewhere, reasonableness

has a protean quality. The term embodies a concept, not a

constant. It cannot be usefully refined ‘‘in order to evolve some

detailed formula for judging cases.’’ Cady, 413 U.S. at 448; accord

LaFrance, 879 F.2d at 6 (‘‘what is reasonable in one type of

situation may not be reasonable in [anJother’’); cf. Sierra Club

v. Secretary of the Army, 820 F.2d 513, 517 (Ist Cir. 1987)

(defining reasonableness as ‘‘a mutable cloud, which is always

and never the same’’) (quoting and paraphrasing Ralph Waldo

Emerson). In this instance, then, to find whether the removal

of defendant’s car from the highway to the barracks was within

the troopers’ community caretaking function, ‘‘we are obliged

to look to all the facts and circumstances of this case in light

of the principles set forth in prior] decisions.’’ Opperman, 428

U.S. at 375.

Here, the police had a legitimate reason for stopping the car

and a strong noninvestigatory justification for removing it from

10a

Appendix A

the highway. Upon ascertaining that neither occupant was properly

licensed to drive, the decision not to let the vehicle continue on

its journey was quintessentially reasonable.’ The ensuing decision

— not to leave an automobile on the shoulder of a busy interstate

highway — can hardly be faulted; had the officers simply

abandoned it, the Toyota not only would have posed a safety

threat, but also would have been easy prey for vandals. We think

that, under the circumstances, it was completely appropriate for

the police to impound the car and bring it to the barracks for

safekeeping. See United States v. Velarde, 903 F.2d 1163, 1166-67

(7th Cir. 1990) (impoundment reasonable where neither occupant

had valid license, owner not available, and car located on highway);

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

(impoundment reasonable where car was parked in private lot

and police did not know identity of operator), cert. denied, 110

S. Ct. 2179 (1990); United States v. Brown, 787 F.2d 929, 932

(4th Cir.) (impoundment reasonable where car’s occupants

appeared drunk, no known sober person was available to take

custody, and the car, if left unattended, could present a nuisance),

cert. denied, 479 U.S. 837 (1986); United States v. Duncan, 763

F.2d 220, 224 (6th Cir. 1985) (impoundment of vehicle reasonable

after arrest of driver on public highway); United States v. Johnson,

734 F.2d 503, 505 (10th Cir. 1984) (impoundment and towing

reasonable where car was parked in private lot, exposed to

vandalism, and owner was besotted); United States v. Griffin,

729 F.2d 475, 480 (7th Cir.) (impoundment reasonable where

neither occupant of car could legally remove it from emergency

lane of highway and leaving car there would present hazard and

theft risk), cert. denied, 469 U.S. 830 (1984); United States v.

2. Such a decision was all the more appropriate given that the men were

coming from New York (several hours away) and bound for Boston (close to

two hours away).

lla

Appendix A

Staller, 616 F.2d 1284, 1289-90 (Sth Cir.) (impoundment reasonabie

where car legaily parked in mail lot but arrested driver was from

out of state and nobody else was available to assume

responsibility), cert. denied, 449 U.S. 869 (1980); United States

v. 1988 B.M.W. 750IL, 716 F. Supp. 171, 173-74 (E.D. Pa.) (lack

of licensed driver sufficient reason for police to impound car

parked near street corner and exposed to risk of theft or

vandalism), aff’d without opinion, 891 F.2d 281, 284 (3d Cir.

1989).

Defendant says that it was unnecessary for the police to

impound the car, pointing in particular to the fact that he was

allowed to drive to the barracks, albeit accompanied by a trooper.

He argues that he could as easily have been permitted to remove

his car to a safe piace of his own selection. But, the existence

of alternative means of dealing with the automobile, even tess

intrusive means, does not illegitimate the constables’ decision to

impound it. When a motor vehicle is left without a licensed driver

in the course of a lawful highway stop, the Constitutiton only

requires the police to act reasonably with regard to disposition

of the vehicle. There is no requirement that the officers must select

the least intrusive way of fulfilling their community caretaking

responsibilities. See Bertine, 479 U.S. at 373-74; United States

v. Davis, 882 F.2d 1334, 1339 (8th Cir. 1989), cert. denied, 110

S. Ct. 1472 (1990); see also Illinois v. Lafayette, 462 U.S. 640,

647-48 (1983) (search of arrestee’s personal property at

stationhouse was not unreasonable even if less intrusive means

existed to achieve legitimate goals of search); LaFrance, 879 F.2d

at 4 (temporary detention of package must be reasonable under

the circumstances; reasonableness need not be judged by ‘“‘least

intrusive means’’ standard).

Framed precisely, the critical question in cases such as this

~

l2a

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is not whether the police needed to impound the vehicle in some

absolute sense, or could have effected an impoundment more

solicitously, but whether the decision to impound and the method

chosen for implementing that decision were, under all the

circumstances, within the realm of reason. See Brown, 787 F.2d

at 932. The inquiry into reasonableness always necessitates

constructing a balance among competing interests. See Deiaware

v. Prouse, 440 U.S. 648 654 (1979) (fourth amendment

reasonabDieness inquiry involves balancing legitimate government

interests against intrusion on individual’s rights); Lopez Lopez

v. Aran, 844 F.2d 898, 905 (Ist Cir. 1988) (in determining

reasonableness, **judges must weigh the need to search or seize

against the invasion the search or seizure entails’’). In the

community caretaker cases, we believe that this ‘‘search for

equipoise,’’ Lopez Lopez, 844 F.2d at 905, almost always involves

the exercise of discretion. We explain briefly.

Virtually by definition, the need for police to function as

community caretakers arises fortuitously, when unexpected

circumstances present some transient hazard which must be dealt

with on the spot. The police cannot sensibly be expected to have

developed, in advance, standard protocols running the entire gamut

of possible eventualities. Rather, they must be free to follow

‘sound police procedure,’’ Cady, 413 U.S. at 447, that is, to

choose freely among the available options, so long as the option

chosen is within the universe of reasonable choices.’ Where, as

3. To be sure, in the context of inventory searches, the Court has concluded

that searching is reasonable only if performed according to standardized

procedures. See Bertine, 479 U.S. at 374 n.6; Opperman, 428 U.S. at 374-75.

In this connection, the Bertine Court also stated that the exercise of police

discretion in the decision to impound a car could be constitutional if exercised

according to standard criteria on the basis of something other than suspicion

(Cont'd)

l3a

Appendix A

here, the police have solid, noninvestigatory reasons for

impounding a car, there is no need for them to show that they

followed explicit criteria in deciding to impound, as long as the

decision was reasonable. C/. United States v. Dall, 608 F.2d 910,

913 (Ist Cir. 1979) (impoundment leading to inventory search

reasonable where “‘it was the regular practice of the Rhode Island

State Police to impound a vehicle in a variety of circumstances,

including instances in which an out-of-state driver is stopped,

cannot produce an operator’s license or identification and is driving

a vehicle tnat belongs to someone else’’), cert. denied, 445 U.S.

918 (1980).

That the impoundment of defendant’s vehicle stemmed in

part from an investigatory motive does not change either the

analysis or the result. As long as impoundment pursuant to the

(Cont'd)

of criminal activity. Bertine, 479 U.S. at 375-76. We express no opinion on

whether Bertine requires that, where impoundment is used as a springboard

for an inventory search, the decision to impound must be subject to set

procedures. The need tor standard procedures perceived by the Bertine Court

is, atter all, driven by the very nature of an inventory search; there, the police

lace strong temptations to go beyond administrative needs and rummage for

investigatory purposes. Requiring a standardized procedure in such cases ‘‘tends

(oO ensure that the intrusion [of the search is] limited in scope to the extent

necessary to carry out the caretaking function.’’ Opperman, 428 U.S. at 374-75.

Limitation-of-scope considerations are, however, inapposite where the

impoundment is not combined with, or for the purpose of effecting, an inventory

search. A car is neither impounded or it is not; there are no degrees. Put another

way, in the cases involving standardized procedures, the challenged impoundment

was followed by a search which was constitutional only by virtue of being incident

to the impoundment. Since the case at hand involves no such search, but rather

a police procedure (the canine sniff) which is not dependent on the impoundment

for its constitutional validity, see infra, the impoundment itself is considerably

less intrusive than an impoundment linked to an inventory search.

l4a

Appendix A

community caretaking function is not a mere subterfuge for

investigation, the coexistence of investigatory and caretaking

motives will not invalidate the seizure. Cf, e.g., United States

v. Frank, 864 F.2d 992, 1001 (3d Cir. 1988) (that inventory search

serves investigatory as well as administrative purpose does not

invalidate the search), cert. denied, 490 U.S. 1095 (1989); United

States v. Orozco, 715 F.2d 158, 161 (Sth Cir. 1983) (per curiam)

(same). Here, the district court did not find that the impoundment

was. pretextual, and we, as an appellate tribunal, are in no position

to impress suck a finding on a record which is scarcely suggestive

ot asham. See United States v. Belt, 854 F.2d 1054, 1055-56 (7th

Cir. 1988). At any rate, the impoundment of the Toyota in the

exercise of the troopers’ community caretaking responsibilities

was amply justified on objective grounds. Hence, any speculation

into the troopers’ subjective intent would be supererogatory. See

United States v. Hadfield, 918 F.2d 987, 993 (Ist Cir. 1990).

We need not paint the lily. Because impounding the car

resulted from a legitimate use of the troopers’ caretaking authority,

the question of suppression was unaffected by whether or not

Rodriguez was arrested or by the legality of his arrest. See United

States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 755 (2d Cir.

1975) (discovery of bloodstains by policeman who entered vehicle

to check handbrake held to be legitimate regardless of lawfulness

of vehicle owner’s arrest; police officer was exercising community

caretaking function), cert. denied, 423 U.S. 1062 (1976); cf. New

York v. Harris, i10S. Ct. 1640, 1644-45 (1990) (statements made

after warrantless arrest need not be suppressed merely because

arrest was illegal).

C. What They Found.

Having established the legitimacy of the impoundment, our

lSa

Appendix A

next step takes us to the constitutionality of the sniff test. In United

States v. Place, 462 U.S. 696 (1983), the Supreme Court analyzed

canine sniffs in the context of luggage temporarily seized at an

airport. The Court concluded that exposure of a person’s luggage,

located in a public place, to a trained drug-sniffing dog did not

constitute a search. /d. at 706-07. The Court reasoned:

A ‘“‘canine sniff’? by a well-trained narcotics

detection dog, however, does not require opening

the luggage. It does not expose noncontraband

items that otherwise would remain hidden from

public view, as does, for example, an officer’s

rummaging through the contents of the luggage.

Thus, the manner in which information is obtained

through this investigative technique is much less

intrusive than a typical search. Moreover, the sniff

discloses only the presence or absence of narcotics,

a contraband item. Thus, despite the fact that the

sniff tells the authorities something about the

contents of the luggage, the information obtained

is limited. This limited disclosure also ensures that

the owner of the property is not subjected to the

embarrassment and inconvenience entailed in less

discriminate and more intrusive investigative

methods.

/d. at 707. The force and import of this language cannot seriously

be questioned. After all, the Court later explored a parallel issue

in United States v. Jacobsen, 466 U.S. 109 (1984), holding that

a chemical field test of a substance thought to be cocaine was

not a search. The Court reasoned that because ‘‘Congress has

decided . . . to treat the interest in ‘privately’ possessing cocaine

as illegitimate . . . governmenta! conduct that can reveal whether

l6a

Appendix A

a substance is cocaine, and no other arguably ‘private’ fact,

compromises no legitimate privacy interest.’’ /d. at 123 (footnote

omitted). The Jacobsen Court stated that this result was ‘‘dictated’’

by Place and quoted much of the language from Place upon which

we rely today. See id. at 123-24. By characterizing the Place

discussion as a holding to the effect that a canine sniff test is

not a search, the Jacobsen Court firmly cemented Place into our

fourth amendment jurisprudence.

We think Place applies full bore to the case at bar. The driver

of a car on a public highway is considered to have a diminished

expectation of privacy with regard to his vehicle. See, e.g.,

California v. Carney, 471 U.S. 386, 390-93 (1985); United States

v. Panitz, 907 F.2d 1267, 1271 (Ist Cir. 1990). Thus, there is no

persuasive reason to apply the ratio decidendi of Place more

grudgingly to canine sniffs performed on automobiles than to

the smelling of luggage. We hold that the canine sniff of the

exterior of a vehicle which is legitimately within the custody of

the police is not a search within the meaning of the fourth

amendment; and that subjecting the exterior of such a motor

vehicle to the olfactory genius of a drug detection dog does not

infringe upon the vehicle owner’s fourth amendment rights.’

Accord United States v. Morales-Zamora, 914 F.2d 200, 203 (10th

Cir. 1990) (where car lawfully detained by police, canine sniff

not a search); United States v. DiCesare, 765 F.2d 890, 897,

4. The statement in United States v. Quinn, 815 F.2d 153, 159 (Ist Cir.

1987) that ‘‘[t]o be entitled to use a dog for purposes of making a sniff test,

the officers were required merely to have had ‘reasonable suspicion’ that the

car contained narcotics,’ is not contrary to our holding here. In Quinn, the

central issue involved the legality of temporarily detaining the object to be sniffed

— a detention for which reasonable suspicion was required. The Quinn language,

therefore, must be read in that context.

17a

7) Appendix A

amended, 777 F.2d 543 (9th Cir. 1985) (canine sniff of automobile

trunk not a search), cf. United States v. Vasquez, 909 F.2d 235,

238 (7th Cir. 1990) (sniff of private garage from public alley not

a search); United States v. Colyer, 878 F.2d 469, 473-77 (D.C.

Cir. 1989) (sniff of Amtrak roomette from public area not a

search); see also (United States v. Race, 529 F.2d 12, 14n.2 (Ist

Cir. 1976) (‘‘We can discern no fourth amendment issue in the

use of a dog for a routine check of . .. freight in an airport

warehouse.’’) (dictum). So long as the automobile is lawfully

impounded, the canine sniff test can be performed without any

showing of reasonable suspicion.

iil. TAIL’S END

The district court’s finding that the state police had reasonable

suspicion to stop the Toyota was not clearly erroneous. After

the car had been lawfully stopped and the unavailability of any

licensed driver revealed, the troopers’ decision to remove the car

to the state police barracks was a reasonable exercise of their

community caretaking function, ergo, constitutionally defensible.

The ensuing canine sniff around the vehicle’s perimeter was not

a search and did not implicate the fourth amendment. And upon

receiving a positive indication that drugs were present, the

authorities had probable cause to procure a warrant and carry

out the thoroughgoing search of the automobile’s interior which

disclosed the cocaine cache.‘ Hence, the ultimate discovery of

the contraband was lawful.

5. Rodriguez concedes, as indeed he must, that once the dog alerted to

the vehicle, the police had probable cause to obtain a search warrant. See, e.g.,

United States v. Quinn, 815 F.2d 153, 159 (Ist Cir. 1987). In fact, the troopers

did obtain one before searching the Toyota and discovering the cocaine.

EES A

18a

Appendix A

We need go no further. The court below erred in suppressing

the evidence.

Reversed and remanded.