Warrantless seizure of firearm violated Fourth Amendment

United States v. Chavez, 2021 WL 191660 (January 20, 2021) (published): The panel finds that the warrantless seizure of a firearm from a car Chavez was driving was unreasonable and not justified as an inventory search or by the community care taking doctrine. Chavez sped away from a traffic stop but was chased by an officer. After losing Chavez momentarily, the officer then saw the car up a dirt road parked in front of trailer with its headlights and taillights still on. The officer drove onto the property, got out and saw Chavez’s dog in the car, but not Chavez. Other officers arrived and one noticed that the car “was in the drive gear.” He “worried the car might move forward.” So he opened the driver’s door and put the car in park. While inside he saw on the driver-side floorboard a “rubber grip” that he thought was a handgun in a holster. He left it there and got out of the car. A neighbor told the officers the car and the dog belonged to the man and woman living in the trailer. Another officer found Chavez outside and without Miranda warnings demanded to know if he was a felon. Chavez said he was. The officer arrested Chavez and walked him to his car. The officer said as he walked by Chavez’s car he too saw a firearm under the seat on the floorboard. Another officer checked on Chavez through a law enforcement database. He found out that Chavez had been arrested several times and was driving on a suspended license. With this information, the officers decided to inventory Chavez’s car, then have it towed and impounded. After an officer photographed the firearm inside the car, another seized it. When they were done with the inventory, a woman came from the trailer to claim the car. She said that she and Chavez were in a relationship and he sometimes used her car. An officer verified her ownership and turned it over to her. She said she didn’t know anything about the gun in the car. The officer who had the gun, kept it. The district court ruled the inventory search complied with the 4th Amendment. The officers did not act in bad faith, it said, and although they did not impound the car, they “had reasonably believed the car would be impounded.” Thus, the officer’s continued seizure of the handgun was reasonable. The panel disagreed. It criticized the district court for coming to this conclusion “without analysis.” The officers’ inventory search was not lawful because the Bernalillo County Sheriff Office policy did not allow officers to impound a car from private property. That may only be done when the car is needed as evidence or pursuant to lawful court order. Those exceptions did not apply here. The panel also said the court incorrectly found the officers could inventory the car because Chavez had been arrested. The car was on the owner’s private property and the Sheriff’‘s policy barred the officers from impounding it. Additionally, the court cited no authority justifying the continued seizure of noncontraband property taken during an inventory search, whether valid or invalid, after the impoundment was called off. Further, the panel held the community caretaking exception did not apply. The car was not parked in a public area or at a commercial business, readily accessible to children, vandals or thieves. Instead, it was lawfully parked at the end of a long, private, dirt road, outside an isolated trailer. It was unlikely someone would take the firearm in these circumstances. The panel noted that the women to whom the car belonged could have taken the gun into the trailer. Although she was able to do so, the officer that took the gun never asked her permission to take it from the car. Finally, the panel ruled that the officers did not have probable cause to seize the gun. Although Chavez’s admission that he was a felon could have given them probable cause, he said that without first being told his rights under Miranda. Relying on Vogt v. City of Hays, 844 F.3d 1235, 1241-42 (10th Cir. 2017), the panel said that the Fifth Amendment’s protection against self-incrimination extends to pretrial proceedings, like preliminary and suppression hearings. Thus, the government was barred from using Chavez’s statement to establish probable cause. Without probable cause, the government could not use the automobile or plain view exceptions to justify the officer’s seizure of the gun. These exceptions apply only if there was probable cause to believe that Chavez had committed or was committing a crime involving the gun. Chavez’s noted behavior - maintaining a steady gaze, rolling his shoulder and leaning forward as if to reach something underneath his seat and quickly speeding away might have been reasonably suspicious but did not cross the threshold into probable cause.