Metropolitan News-Enterprise


Friday, April 16, 2010


Page 1


Court Rejects Challenge to Impound of Vehicle in ‘Bad’ Area


By STEVEN M. ELLIS, Staff Writer


The First District Court of Appeal has published its ruling that police did not violate the Fourth Amendment when they impounded the late-model Mercedes of an Oakland man they arrested for drunk driving rather than leave it parked in a “high crime area.”

Div. One on Wednesday ordered publication of its Mar. 29 ruling reversing a trial judge’s order to suppress evidence found in Gideon Gordon Shafrir’s car during an inventory search police conducted after deciding to move the vehicle for safekeeping.

Shafrir was charged with felony possession of marijuana for sale, and transportation or sale of marijuana after police found a box containing three “large” bags of marijuana and $50,000 in cash in a paper bag during the search.

Two California Highway Patrol officers stopped Shafrir in the early morning on April 3, 2008, after observing his Mercedes traveling on the freeway at a “little over 110 miles an hour.”

Oakland Intersection

Shafrir exited the freeway and parked the vehicle at the intersection of MacArthur Boulevard and Market Street, in Oakland. Both officers later testified that they decided to impound the vehicle after arresting Shafrir for driving under the influence of alcohol because the area was not a safe place to leave what they described as a “new” Mercedes parked.

Upon finding the drugs and cash, the officers changed their authority for removal from Vehicle Code Sec. 22651(h)’s “safekeeping” provision to Sec. 22655.5’s “seizure of evidence” provision.

Shafrir, also charged with driving under the influence and reckless driving, brought a Penal Code Sec. 1538.5 motion to suppress the evidence found during the inventory search, arguing the officers improperly exercised their discretion to impound the vehicle.

A magistrate denied the motion, so Shafrir sought dismissal of the drug charges by a trial court, arguing that the decision to impound the vehicle under Vehicle Code Sec. 22655.5 contravened policies in the CHP manual summarizing Sec. 14602.8.

The latter allows police to remove a vehicle upon determining the driver has been convicted of one or more specified DUI offenses within the past 10 years and the driver either has a 0.10 blood alcohol level or refuses to complete a chemical test.

Shafrir noted that he had no prior DUI convictions.

Alameda Superior Court Judge Thomas Reardon conceded that the officers’ decision to remove the vehicle for safekeeping purposes “seem[ed]…reasonable,” but granted the motion. He expressed concern that the manual, despite its overall detail, lacked “guidelines in understanding what safekeeping means, such that every CHP officer would…at least analyze the question…based upon the same factors.”

On appeal, the district attorney argued that Reardon misapplied governing Fourth Amendment principles and the Court of Appeal agreed, concluding the magistrate’s initial ruling was correct.

‘Overarching Test’

Writing for the court, Justice Robert L. Dondero said “the overarching test under the Fourth Amendment remains the same as for any other challenged search—whether it was ‘unreasonable’ under all the circumstances.”

He explained:

“[A]n impoundment decision made pursuant to standardized criteria is more likely to satisfy the Fourth Amendment than one not made pursuant to standardized criteria….However, the ultimate determination is properly whether a decision to impound or remove a vehicle, pursuant to the community caretaking function, was reasonable under all the circumstances.”

Noting that the officers decided to move the vehicle based on their discretionary authority under the safekeeping provision, that there was no evidence they suspected it contained evidence of criminal activity, and that both officers articulated the same reasons for their actions, Dondero said the decision to remove the vehicle was reasonable, and reversed the trial court’s order.

Justices Sandra L. Margulies and Kathleen M. Banke joined Dondero in his opinion.

The case is People v. Shafrir, 10 S.O.S. 2083.


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