8235 Version 1.011 Lawyerdude1989@yahoo.com 541 476 8954. Upgraded Wednesday, March 14, 2007. Day before hearing on impoundment.
Miranda v City of Cornelius, Oregon
November, 2005, 9th Circuit
Drivers lost in this pathetic opinion.
This page is http://www.lawyerdude.netfirms.com/miranda8.html
Related pages:
The Redmund case from Washington: http://www.lawyerdude.netfirms.com/6352.html City of Redmond V Dean A Moore. City was the appellant having lost at trial court. Supreme Court of the State of Washington 2004
Miranda case at Findlaw: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=year&court=9th&YEAR2=2005&MONTH=11
In the U.S. Court of Appeals for the 9th Circuit
Jorge Miranda, Irene Miranda, Plaintiffs-Appellants,No. 04-35940
v
City of Cornilius, Oregon; Acme towing.
CITY OF CORNELIUSv.; ACME TOWING, Inc.
., OPINION
Defendants-Appellees.
Case: CV-04-00241-AAD.C.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
Argued and Submitted
September 13, 2005—Portland, Oregon
Filed November 17, 2005
Before: Raymond C. Fisher, Ronald M. Gould, Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
15339
Shelly Latin, Oregon Legal Services Corp., Pendleton, Oregon (argued); Spencer M. Neal, Oregon Law Center, Portland, Oregon, for the plaintiffs-appellants. Gerald L. Warren, Salem, Oregon, for the defendants- appellees.
Analysis by Lawyerdude: Supreme Court cases and other case cited herein:
Atwater 532 U.S. at 347 1
Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004) 1
California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700, 711 (9th Cir 2003) 1
Colorado v. Bertine, 479 U.S. 367 the Court allowed ªthe exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. 1
Cooper v. California, 386 U.S. 58, 59 (1967) (The issue of ªwhether a search and seizure is unreasonable within
the meaning of the Fourth Amendment depends upon the facts and circumstances of each case . . . .º).
1
Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1323-24 (9th Cir. 1982) 1
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) 1
Scofield v. City of Hillsborough, 862 F.2d 759, 764 (9th Cir. 1988) These “procedures ensure that any erroneous deprivation of an owner's vehicle will be slight, and satisfies due process concerns.” 1
Sibron v. New York, 392 U.S. 40, 61 (1968) 1
Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir. 1986) 1
Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1342 (9th Cir. 1977). 1
Terry v. Ohio, 392 U.S. 1, 21 (1968) 1
United States v. Duguay, 93 F.3d 346, 352 (7th Cir. 1996). In Duguay, the court held that ªimpoundment based solely on an arrestee's status as a driver, owner, or passenger is irrational and inconsistent with ‘care- taking' functions. Under [the police officers'] policies, towing is required any time the arrestee is carted off to jail, regardless of whether another person could have removed the car and readily eliminated any traffic congestion, parking violation, or road hazard.º Id. at 353. ªThe policy of impounding the car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for impoundment is for the ‘caretaking' of the streets.º 1
United States v. Gutierrez, 995 F.2d 169, 171 (9th Cir. 1993) (ªAfter determining that neither Gutierrez nor Cervantes possessed a valid driver's license, the officers advised them that they were free to go, but that they could not drive the Cadillac. 1
United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (ªUpon ascertaining that neither occupant was properly licensed to drive, the decision not to let the vehicle continue on its journey was quintessentially reasonable. 1
Superb Treatises cited herein:
Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment § 7.3, at 624 (4th ed. 2004)
1
Analysis by Lawyerdude: Highlights of the case:
police officer observed the husband teaching his unlicensed wife how to drive
summary judgment for Defendants City of Cornelius
tow truck from Defendant Acme Towing, Inc. removed the vehicle from the Mirandas' driveway
procedural due process does not require predeprivation notice and a hearing before impoundments
they requested a hearing in their letter to the City Hall
it sent notice to the Mirandas of their right to a hearing
no request for a hearing was made
Opinion of the Court:
Re: Judge Gould: Media Release United States Courts for the Ninth Circuit Office of the Circuit Executive Contact: Terry Nafisi 415 556-6161/FAX -6179. December 28, 1999. Ronald M. Gould of Seattle Appointed to U.S. Court of Appeals for the Ninth Circuit. President Bill Clinton signed the commission on November 22, 1999, for the appointment of Ronald M. Gould to the United States Court of Appeals for the Ninth Circuit. Judge Gould is the 80th Circuit Judge appointed to the court, succeeding to the position vacated by Circuit Judge Robert R. Beezer of Seattle, who assumed senior status in July 1996. The oath of office will be officially administered on January 3, 2000, after which he will immediately begin work as a Circuit Judge.A public swearing-in ceremony is planned for March 2, 2000, in Seattle. Judge Gould will maintain his chambers in Seattle.
Judge Gould, 53, was graduated from the University of Pennsylvania and from the University of Michigan Law School. He was Editor-in-Chief of the Michigan Law Review and was awarded the Order of the Coif. Following law school, Judge Gould clerked for Circuit Judge Wade H. McCree, Jr., of the United States Court of Appeals for the Sixth Circuit, after which he clerked for Justice Potter Stewart at the United States Supreme Court. He is admitted to the bar in the state of Washington.
Upon completion of his clerkship in 1975, Judge Gould joined the law firm of Perkins Coie LLP in Seattle, where he was a partner at the time of his nomination to the court of appeals. He specialized in financial institutions law, alternative dispute resolution, antitrust law, trade regulation litigation, and complex commercial litigation.
Involved in public service, Judge Gould has been active in the Boy Scouts of America, serving for years on the Executive Board of the Chief Seattle Council. In 1998, he was honored by the Boy Scouts with the Distinguished Eagle Scout Award. He served on the Board of Directors of the Economic Development Council of Seattle and King County and is a past member of the Community Relations Council of the Jewish Federation of Greater Seattle. He is currently a Trustee and is past Chair of the Board of Trustees of Bellevue Community College.
Judge Gould has also been active in service to professional organizations. He is a member of the American Bar Association, a Fellow of the American Bar Foundation, a former Trustee of the Federal Bar Association for the Western District of Washington, and a former member of the Board of Governors and past President of the Washington State Bar Association. He was honored with the “Award for Distinguished Service to the Legal Profession and Public” by the King County Bar Association. Judge Gould also serves on the Board of Directors of the Ninth Judicial Circuit Historical Society.
The United States Court of Appeals for the Ninth Circuit, with 28 judgeship positions, remains with six vacancies after the appointment of Judge Gould. Judges of the court reside throughout the nine western states in the circuit. The court, with headquarters in San Francisco, sits to hear cases in panels of three judges. Panels assemble for one week each month in four regular places of holding court: Seattle, Portland, San Francisco, and Pasadena. Periodically, panels sit in Alaska and Hawaii as well. After the hearings, the judges return to their chambers to prepare opinions to circulate to the other judges on the panel. Opinions are released by the clerk's office in San Francisco and are also available to the public on an electronic bulletin board service and on the Internet at www.ce9.uscourts.gov.
Judge Ronald Gould wrote:
We consider a constitutional challenge to the impoundment of a vehicle from the owners' driveway after a police officer observed the husband teaching his unlicensed wife how to drive. Plaintiffs Mr. Jorge and Mrs. Irene Miranda (ªPlaintiffsº) appeal the district court's grant of summary judgment for Defendants City of Cornelius (the ªCityº) and Acme Towing, Inc. (collectively ªDefendantsº) and the denial of Plaintiffs' motion for partial summary judgment on Plaintiffs' claim that Defendants' impoundment of their vehicle violated their constitutional rights under the Fourth and Fourteenth Amendments. Plaintiffs allege that the impoundment was an unreasonable seizure under the Fourth Amendment because it conflicts with the principles of the community caretaking doctrine. Generally, the community caretaking doctrine allows the police to impound where necessary to ensure that the location or operation of vehicles does not jeopardize the public safety. We hold that, under the special circumstances of this case, the impoundment of Plaintiffs' vehicle was an unreasonable seizure not justified by the community caretaking doctrine because the police have no duty to protect a vehicle parked on the owners' property and there was no reason to believe that impoundment would prevent any threat to public safety from its unlawful operation beyond the brief period during which the car was impounded. We reverse the district court's grant of summary judgment, and we remand for fur- ther proceedings.
I
On April 10, 2003, Mrs. Miranda slowly drove the Ford Aerostar van of her husband, Mr. Miranda, around the neighborhood as her husband taught her how to drive. Although Mr. Miranda is a licensed and insured driver with valid registration of the vehicle, Mrs. Miranda did not have a driver's license. Officer John Calvert, a police officer with the City, noticed that Mrs. Miranda was driving poorly and at a speed of about ten miles per hour, and suspected that she was impaired or improperly licensed. Officer Calvert activated the overhead lights on his patrol car and followed the vehicle until Mrs. Miranda pulled into the driveway in front of the Mirandas' home.
After learning that Mrs. Miranda did not have a driver's license, Officer Calvert cited her for operating a vehicle without a license and also cited Mr. Miranda for permitting the operation of the vehicle by an unlicensed driver. Officer Calvert told the Mirandas that their vehicle would be impounded. In their declarations opposing summary judgment, Plaintiffs submitted evidence that they had trouble understanding Officer Calvert because they have limited English skills and did not know that their vehicle was to be impounded.
A city ordinance, authorized by state statute, allows an officer to tow a vehicle, without prior notice, if the officer has a reasonable belief that the driver is operating it without a valid operator's license. Cornelius City Code § 7.455; Or. Rev. Stat. § 809.720. Officer Calvert waited until the tow truck from Defendant Acme Towing, Inc. removed the vehicle from the Mirandas' driveway, which occurred about thirty minutes after the stop.
On the morning of the next day, April 11, Mr. Miranda appeared at the police station to pay an administrative fee. He retrieved his vehicle at the impoundment lot after paying additional towing charges and impound fees. Mr. Miranda stated in his declaration that he lost a day's pay from taking this time to retrieve his vehicle. Also on April 11, Ms. Dolley Mack, a police services aide with the City, mailed to Plaintiffs a Notice of Towed Vehicle report, which informed them of their right to contest the tow by mailing a request to the police department within ten days of the tow. On April 15, Mr. Miranda wrote a letter in Spanish to the police department complaining about the tow. The City submitted into evidence the declaration of Ms. Mack stating that ªto the best of [her] knowledge, no request for hearing was ever received.º Mr. Miranda then received the City's notice, but he did not respond to it. He later went to the City Hall and, as he described it, ªspoke with a woman about the tow who told him that he had no basis to complain about the tow.º On May 6, Plaintiffs appeared at municipal court and pled guilty to the traffic violations. Plaintiffs did not contest the impoundment during this hearing, and the court imposed no fines on them.
In their complaint brought under 42 U.S.C. § 1983, Plaintiffs alleged that the impoundment was an unreasonable seizure under the Fourth Amendment as incorporated in the Fourteenth Amendment and that they were deprived of due process under the Fourteenth Amendment. Plaintiffs also sought a declaratory judgment that the city ordinance, Cornelius City Code § 7.455, is unconstitutional. The district court held that the seizure complied with the Fourth Amendment because Plaintiffs lacked a reasonable expectation of privacy in their parked car on their unenclosed driveway. On the officer's decision to impound so long as the officer had probable cause to believe that the driver violated a vehicle regulation that authorizes the impoundment. Plaintiffs counter that the reasonableness of an impoundment requires more than just the existence of probable cause, but that the impoundment itself must comply with the principles of the ªcommunity caretakingº doctrine.
A
In assessing these claims, we first determine whether probable cause to believe that the driver committed a traffic violation is sufficient justification by itself to make the impoundment of the vehicle reasonable under the Fourth Amendment.
[4] In Atwater, the Supreme Court held that an officer is deemed to act reasonably under the Fourth Amendment in making a warrantless arrest if the officer had probable cause to believe that the arrested person violated a criminal statute. Id. at 354 (ªIf an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.º). The Supreme Court in Atwater relied on the historical discretion allowed a police officer to make a warrantless arrest when supported by probable cause to believe that the suspect committed a crime. See id. at 32745. In applying this bright-line rule, the Court distinguished other situations where the reasonableness of a search or seizure was determined by ªbalancing the need to search (or seize) against the invasion which the search (or seizure) entails.º Terry v. Ohio, 392 U.S. 1, 21 (1968) (citation and internal quotation marks omitted). ªTerry certainly supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that either a warrant (in the case of a search) or probable cause (in the case of arrest) provides; but at least in the absence of ‘extraordinary' circumstances, there is no comparable cause for finick
ing when police act with such justification.º Atwater, 532 U.S. at 347, n.16 (citation omitted).
[5] In sharp contrast to the broad discretion granted in Atwater, the Supreme Court in allowing the impoundment and search of vehicles under the community caretaking doctrine has limited the discretion of the impounding officer and has taken a more finely tuned approach to determining reason- ableness under the Fourth Amendment. In Colorado v. Bertine, 479 U.S. 367 the Court allowed ªthe exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.º 479 U.S. 367, 375 (1987). A leading treatise declares that this language is ªhighlighting that while the Supreme Court was not prepared to mandate any particular rules as to when impoundment incident to arrest for a traffic violation was permissible, impoundment is not a matter which can simply be left to the discretion of the individual officer.º 3 Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment § 7.3, at 624 (4th ed.
2004) (emphasis in original).
The police's authority to search and seize property when acting in its role as ªcommunity caretakerº has a different source than its authority to search and seize property to investigate criminal activity. The reasonableness of a seizure under the ªcaretakerº function differs from the bright-line rule concerning probable cause in the criminal context.ªThe standard in the circumstances of this case, probable cause to believe that there had been a traffic infraction or non-criminal violation was insufficient to justify an impoundment of a vehicle parked in the owner's driveway, in the absence of a valid caretaking purpose.
B
We consider next whether the seizure of the Mirandas' vehicle from their driveway is justified by the community caretaking doctrine. In assessing this question, we must examine whether this seizure is reasonable based on all of the facts presented. See Cooper v. California, 386 U.S. 58, 59 (1967) (The issue of ªwhether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case . . . .º).
We begin with the premise, apparently not recognized by the Defendants, that the decision to impound pursuant to the authority of a city ordinance and state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment, as applied to the states by the Fourteenth Amendment. ªThe question in this Court upon review of a state-approved search or seizure is not whether the search (or seizure) was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.º Sibron v. New York, 392 U.S. 40, 61 (1968).
[8] An impoundment may be proper under the community caretaking doctrine if the driver's violation of a vehicle regulation prevents the driver from lawfully operating the vehicle, and also if it is necessary to remove the vehicle from an exposed or public location. See United States v. Gutierrez, 995 F.2d 169, 171 (9th Cir. 1993) (ªAfter determining that neither Gutierrez nor Cervantes possessed a valid driver's license, the officers advised them that they were free to go, but that they could not drive the Cadillac.º); United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (ªUpon ascertaining that neither occupant was properly licensed to drive, the decision not to let the vehicle continue on its journey was quintessentially reasonable.º). The violation of a traffic regulation justifies impoundment of a vehicle if the driver is unable to remove the vehicle from a public location without continuing its illegal operation.
On the other hand, a decision to impound a vehicle that is not consistent with the police's role as ªcaretakerº of the streets may be unreasonable. See United States v. Duguay, 93 F.3d 346, 352 (7th Cir. 1996). In Duguay, the court held that ªimpoundment based solely on an arrestee's status as a driver, owner, or passenger is irrational and inconsistent with ‘care- taking' functions. Under [the police officers'] policies, towing is required any time the arrestee is carted off to jail, regardless of whether another person could have removed the car and readily eliminated any traffic congestion, parking violation, or road hazard.º Id. at 353. ªThe policy of impounding the car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for impoundment is for the ‘caretaking' of the streets.º Id.
[9] The state has the right to allow the driver to drive away with the vehicle only if he or she is able to do so in compliance with all regulations intended to ensure the vehicle's safe operation. However, the decision to impound a vehicle after the driver has violated a vehicle regulation must consider the location of the vehicle, and whether the vehicle was actually ªimpeding traffic or threatening public safety and convenienceº on the streets, such that impoundment was warranted. See Opperman, 428 U.S. at 369. While Officer Calvert may not have believed that the Mirandas would comply with all regulations in the future, when he issued citations and called for the vehicle to be impounded, the vehicle was already parked in the Mirandas' home driveway. Mr. Miranda was licensed to drive the car. Under these circumstances, the Mirandas' car was not creating any impediment to traffic or threatening public safety. An officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers. See United States v. Squires, 456 F.2d 967, 970 (2d Cir. 1972) (ªHowever, since the Cadillac was parked in the parking lot behind the apartment house in which appellant lived, which was an appropri- ate place for it to be, and appellant did not consent to its removal, the officers did not have a reasonable basis for concluding that it was necessary to take the Cadillac to the police station in order to protect it.º).
III
Plaintiffs further claim that they were deprived of procedural due process in violation of the Fourteenth Amendment. They assert that they were entitled to notice and a hearing on the validity of the impoundment before their vehicle was seized and impounded. They also assert that they were denied a meaningful opportunity to contest the impoundment in a post-deprivation hearing.
A
[12] ªWe assess due process case-by-case based on the total circumstances.º California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700, 711 (9th Cir 2003). ªConstitutional due process requires that a party affected by government action be given ‘the opportunity to be heard at a meaningful time and in a meaningful manner.' º Id. at 708, n.6 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). In determining what process is due, we apply the factors specified by the Supreme Court in Mathews v. Eldridge:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural require- ment would entail.
424 U.S. at 335.
Cases decided by us are cited by Defendants, and previously by the district court in its order, to support the proposition that procedural due process does not require predeprivation notice and a hearing before impoundments. See, e.g., Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir. 1986); Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1323-24 (9th Cir. 1982); Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1342 (9th Cir. 1977). However, none of these cases is controlling in light of the unusual facts presented here. In these cases, the police clearly were acting within their legitimate caretaking functions. See Goichman, 682 F.2d at 1324 (recognizing ªthe government's interest in efficient and inexpensive towage of illegally parked automobilesº); Stypmann, 557 F.2d at 1343 (ªThe public interest in removing vehicles from streets and highways in the circum- stances specified in the traffic code is also substantial, though differing in the various situations in which removal is authorized.º).
The crucial factual differences that we confront here, as explained above, are that the Mirandas' vehicle, when seized to be impounded, was safely and securely in the driveway of their home, and Mr. Miranda, at all relevant times, had a valid registration for the vehicle and a valid driver's license. Defendants have not provided a legitimate caretaking purpose for the impoundment here.
[13] Impoundment of a vehicle left in a public place or a vehicle for which there is no licensed driver, although those circumstances are not presented here, presumably would not require pre-deprivation notice and a pre-seizure hearing because the burden of such procedures would vitiate the legitimate purposes of the impoundment. Impoundments in such cases are likely justified by the need to respond immediately to the hazard or public safety threat caused by the location of the vehicles, which would be incompatible with a requirement of notice and a hearing beforehand. However, the novel question, squarely presented in this case, of whether a predeprivation hearing is required for an impoundment from the driveway of the owners' home, cannot be resolved without more factual development and a more detailed analysis of the competing interests involved. Because Defendants have not provided us with a legitimate caretaking purpose in impounding the car, the question whether a pre-deprivation hearing was required for the Mirandas' case cannot be properly determined on the record before us. Therefore, the district court should determine on remand whether any legitimate caretaking purpose offered by Defendants outweighs the affected private interest of the Mirandas in uninterrupted possession of their car and the risk of erroneous deprivation.
B
Assuming that pre-deprivation notice and a hearing is not required, we do not find that any due process violation resulted from the absence of a post-deprivation hearing to contest the validity of the impoundment in light of the opportunity for such a hearing that was given to the Mirandas.
[14] To establish Defendants' liability under section 1983, Plaintiffs ªmust demonstrate that action pursuant to official municipal policy of some nature caused a constitutional tort.º Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004). ªIn order to impose liability based on a policy of deliberate inaction, the plaintiff must establish: (1) that he [or she] possessed a constitutional right of which he [or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy was the moving force behind the constitutional violation.
The first question under this standard is whether the Mirandas were deprived of any constitutional right. In accord with the requirements of due process, the City has a policy of sending notices within forty-eight hours of an impound to the owners explaining their right to request a hearing to contest the impoundment. See Scofield v. City of Hillsborough, 862 F.2d 759, 764 (9th Cir. 1988) (holding that these ªprocedures ensure that any erroneous deprivation of an owner's vehicle will be slight, and satisfies due process concernsº). Plaintiffs contend that they requested a hearing in their letter to the City Hall, and that their request was ignored. The City presented evidence, by contrast, that it sent notice to the Mirandas of their right to a hearing, and that no request for a hearing was made. Further, the City submitted evidence that at the hearing on the traffic infractions, no issue was raised about the impoundment. The Mirandas replied that they did not submit a hearing request in response to the City's letter of notice because they felt that their prior Spanish-language letter made a request for a hearing. They also contended that Mr. Miranda later went to City Hall and ªspoke with a woman about the tow who told him that he had no basis to complain about the tow.º Possibly both sides acted in good faith and there was a misunderstanding because of language barriers.
[15] Even assuming that the City did not respond to the requests for a hearing that the Mirandas made in a letter written in Spanish and made in person at City Hall, relief against the City cannot be granted in the absence of a policy of the City that caused or contributed to the assumed deprivation of a constitutional right. On this ground, the Plaintiffs' claim is defeated under the undisputed facts. Plaintiffs do not show that a municipal policy of deliberate inaction was the ªmoving forceº behind the City's inaction towards the Mirandas' requests for a hearing. Rather, the absence of a hearing concerning the seizure on the undisputed facts was inadvertent and not as a result of a deliberate inaction under a City policy. favor of Defendants. We accordingly reverse in part the district court's judgment and remand for further proceedings consistent with this disposition. Costs will be awarded to the plaintiffs-appellants.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Topical Index
community caretaking doctrine 1 2