Vehicle impoundment principles apply to search of backpack; evidence from backpack should have been suppressed

An important decision rejecting the government’s contention that a warrantless search of personal property does not require the exclusion of incriminating evidence because officers would have validly impounded that property and inevitably discovered its contents. In United States v. Braxton, 2023 WL 2377701 (10th Cir., Mar. 7, 2023) (CO), the panel decided that the circuit’s impoundment criteria from United States v. Sanders, 796 F.3d 1241 (10th Cir. 2015), which generally is used to determine the reasonableness of impounding a vehicle, applies also to personal property. It holds that the government did not meet its burden to show that the officers would have impounded Braxton’s backpack “under a reasonable, nonpretextual community caretaking rationale.” Thus, contrary to the district court’s finding, the gun the officers found inside the pack would not have been inevitably discovered. The district court should have suppressed the gun. When Braxton was arrested for selling drugs, he was “wearing a black backpack.” The officers took it off and put it on the sidewalk. They searched him and found crack cocaine and cash in his pockets. During the search Braxton yelled out to someone to “get my girl, Tan!” Less than 30 seconds later, Braxton’s girlfriend Tanyrah Gay walks up to the officers. Braxton tells her “get the money so you can bond me out.” Gay asks the officers if she can have the pack. They say no. When one picks up the pack, she asks, “I can’t take my pack?” They again say no. When one officer put Braxton into a patrol car, he said that Gay needed the money in the pack. She too said she needed the money because she was staying in a hotel. This officer also said no. Gay asked if the officer would at least write down her telephone number. He said that he’d get to that momentarily. Another officer took the pack and searched it on the hood of a patrol car. Inside he found a loaded gun with a pink handle. While he was still rummaging through the pack, Gay asked him if she could get her ID and bus pass from the pack. The officer told her to wait a moment. He then put the gun in an evidence bag. Needless to say, Gay never got the pack. Braxton was charged with possession of a firearm in furtherance of drug trafficking, possession of crack cocaine with intent to distribute and felon in possession of a firearm. In the district court, Braxton moved to suppress the firearm. He argued that the search of the pack was not justified as a search incident to arrest under the Tenth Circuit’s decision in United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019). [There the court held that the warrantless search of Knapp’s purse could not be defended as a search incident to arrest because Knapp could not access weapons or destroy evidence within the purse after her arrest.]. The government conceded that search incident to arrest would not validate the search after Knapp. However, it convinced the district court that the gun should not be suppressed because officers would have inevitably discovered it after impounding the backpack and doing an inventory search. On appeal, the panel was not persuaded by this argument. It said under the facts here, the government could not prove that the gun inevitably would have been discovered by lawful means, that is by the community caretaking and inventory exceptions to the warrant requirement. The panel found that the principles from the vehicle impoundment cases are relevant in the personal property context. In Sanders, the court held that impounding a vehicle from private property must be justified by both (1) a standardized policy and (2) a reasonable, nonpretextual community caretaking rationale. 796 F.3d at 1248. The analysis of the second prong centers on a list of nonexclusive factors Sanders said were relevant to determining whether a reasonable and legitimate nonpretextual community caretaking rationale existed. The panel focused on the second prong and concluded that the list’s third factor, whether there was an alternative to impoundment, determined the outcome here. As it did in the district court, the government contended that the officers would have inevitably discovered the gun because they were obligated to take the pack back to the station to prevent its theft and to protect the community from its possibly dangerous contents. The panel acknowledged that Denver police department policy directed officers to bring personal property to the property section for safekeeping. But, the panel said, “the existence of and compliance with such a policy does not by itself establish a reasonable community caretaking rationale.” The panel stressed that the officer who testified at the suppression hearing “provided scant explanation for why he would have refused Gay’s requests . . . or would not have asked Braxton about giving her the backpack.” The proper inquiry under this third factor, the panel said, is “whether an alternative to impound exists and is not focused on who suggested that alternative.” Here, there was a plausible alternative to impoundment. The officer’s testimony did not explain why, given Gay’s requests, that he needed to impound the pack to keep it safe for its owner. It didn’t matter that Braxton did not directly ask the officers to give the pack to Gay. She asked twice for the pack and both times the officers refused to give it to her. There also was evidence that the two were in a relationship. At a minimum then, a “reasonable officer[] dealing with the backpack in a lawful manner would have inquired further about whether [to] give the backpack to Gay, either by asking Braxton if he wanted Gay to take the backpack or by inquiring into their relationship.” As to this last point, the panel emphasized that circuit precedent “establishes that officers generally act unreasonably when they ignore or shut down obvious alternatives to impoundment.” Given that the officers could have given Gay the pack it was not “inevitable that the officers would have validly impounded the backpack under a reasonable community caretaking rationale.” Thus, the impoundment here was not reasonable because there were “clear and promptly available alternatives.”