[00:00:03] Speaker 01:
The last case for this morning will be 23-2136, United States versus Romero.

[00:00:13] Speaker 01:
Counsel for Pellant, if you'd make your appearance and proceed, please.

[00:00:23] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 03:
I'm Leah Yaffe with the Federal Public Defender's Office for Mr. Eloy Romero.

[00:00:32] Speaker 03:
The question in this case is whether the Albuquerque police could inventory search everything in Mr. Romero's vehicle, including his backpack, on the sole basis that his vehicle was uninsured, and even though Mr. Romero was present at the scene not under arrest.

[00:00:52] Speaker 02:
The answer is no, although it's sometimes permissible to conduct an... It wasn't just that his insurance, he was uninsured.

[00:01:01] Speaker 02:
He was revoked on his driver's license too, wasn't he?

[00:01:05] Speaker 03:
Yes, correct.

[00:01:06] Speaker 03:
So he doesn't have a driver's license and it's not going to be driving.

[00:01:09] Speaker 03:
The car can't be driven on the road for those two reasons.

[00:01:12] Speaker 03:
That's the basis for the

[00:01:14] Speaker 03:
impoundments, and then the ultimate inventory search.

[00:01:18] Speaker 03:
And while it's sometimes permissible for an officer to conduct an early on-scene inventory search before a vehicle is actually impounded, taken to the tow yard, officers cannot expand the scope of the inventory search when they do so.

[00:01:34] Speaker 03:
And that's what happened here.

[00:01:36] Speaker 03:
The detective search was unreasonable because he started right away with Mr. Romero's backpack without any reason to believe that Mr. Romero would not be able to take his backpack home with him when he left the scene.

[00:01:50] Speaker 01:
Well, number one, this notion that somehow or other one needs to take into consideration in the propriety of the inventory search whether Mr. Romero could take his backpack with him or not

[00:02:03] Speaker 01:
Did you make that argument to the district court?

[00:02:05] Speaker 01:
I have no recollection that you did.

[00:02:07] Speaker 03:
Your Honor, we preserved this argument fully in the district court, because what this court requires for preservation is specifically three things.

[00:02:16] Speaker 03:
One, that you identify the correct search and historical facts.

[00:02:20] Speaker 03:
Here from the beginning, we were challenging the search of the backpack as being premature, the rummaging around in the car as an unlawful search, with the ultimate goal, obviously, of kicking out the discovery of the items in the backpack.

[00:02:32] Speaker 03:
So it wouldn't have been included in an inventory search.

[00:02:35] Speaker 01:
Why did you say the search was premature?

[00:02:38] Speaker 03:
We argued that it was not in accordance with standardized criteria, and also that it did not serve the purposes of an inventory search, which is both an objective and a subjective inquiry, pointing to the fact that as soon as there is an indication that there is a basis to impound the vehicle again for traffic purposes, the officer starts immediately inventorying

[00:03:04] Speaker 03:
starts with the backpack, doesn't tell anyone what he's doing, doesn't call a tow truck, doesn't generate a tow inform, which they say they need to do for their policy.

[00:03:13] Speaker 01:
At the point that he looks at the backpack, does he know that the defendant doesn't have a license and that it's not his vehicle?

[00:03:19] Speaker 01:
Yes, yes.

[00:03:20] Speaker 01:
Well, then why does he have to tell anybody what he's doing?

[00:03:23] Speaker 01:
Why does he have to say, well, your defendant, this is what I understand to be the case.

[00:03:27] Speaker 01:
We're going to have to tell your vehicle.

[00:03:28] Speaker 01:
Is there anything?

[00:03:29] Speaker 03:
That's not the basis of our argument for the inventory search.

[00:03:33] Speaker 03:
It was part of the impoundment argument below.

[00:03:35] Speaker 03:
We're not challenging the impoundment of the vehicle on appeal, just to be clear.

[00:03:39] Speaker 03:
The point is that that is evidence of the officer's investigatory motive in beginning with the backpack search and also the fact that this backpack search did not serve the purposes underlying the inventory exception.

[00:03:52] Speaker 01:
Continue with your explanation for why there was preservation.

[00:03:56] Speaker 03:
Sure.

[00:03:57] Speaker 03:
So there are the three components that I was raising as to what makes a claim preserved in this court.

[00:04:04] Speaker 03:
The first being, again, the focus on the right search, the right historical facts.

[00:04:09] Speaker 03:
Second, you need to identify the correct legal doctrine.

[00:04:12] Speaker 03:
We've obviously done that here.

[00:04:13] Speaker 03:
We have a separate section in the district court motion.

[00:04:16] Speaker 03:
about the inventory search being unlawful, even if the impoundment of the vehicle was OK.

[00:04:21] Speaker 03:
And third, you have to raise your argument under the correct prong, if there's a multi-prong doctrine.

[00:04:27] Speaker 03:
And here we raised arguments under both prongs of the inventory doctrine.

[00:04:31] Speaker 03:
One, that the officers didn't comport with their own criteria, and two, that this did not serve the purposes

[00:04:38] Speaker 03:
of the inventories exception.

[00:04:40] Speaker 03:
And again, the government's only defense in the district court and on appeal to this being an appropriate search is a fully administrative justification based on an uninsured vehicle and a lack of a license.

[00:04:57] Speaker 01:
Well, what I understand, though, to be your argument on appeal

[00:05:01] Speaker 01:
is that the unconstitutionality of the search turns in part on the fact that the defendant could have taken the backpack.

[00:05:10] Speaker 01:
And therefore, there would be no policy that would allow a search when a property that would not be present at the time of the impoundment or the inventory.

[00:05:22] Speaker 01:
Is that right?

[00:05:22] Speaker 00:
Yes.

[00:05:23] Speaker 01:
Well, then it hinges on the fact that he would take the backpack.

[00:05:28] Speaker 01:
That is a theory.

[00:05:29] Speaker 01:
And that theory was not articulated to the district court, so we don't have any information.

[00:05:34] Speaker 01:
as to whether they would have let him take the backpack, which is a relevant fact, is it not?

[00:05:40] Speaker 03:
So two points, Your Honor.

[00:05:41] Speaker 03:
To the last point of your question, what we need to show is that the timing here was premature because it wasn't established at this point in the stop whether the backpack would have been in the vehicle.

[00:05:53] Speaker 03:
We don't need to prove the counterfactual inquiry that the backpack would definitely not have been in the vehicle.

[00:05:59] Speaker 03:
The point is that it was unreasonable rummaging around in the vehicle.

[00:06:04] Speaker 03:
district court language to begin an inventory search before it's apparent what is actually going to the tow yard.

[00:06:13] Speaker 01:
But we don't know what the full facts are because there was no notice that the presence of the backpack or not would make any difference because the point would be there would be no implication that the backpack wouldn't stay in the vehicle unless there's some reason to believe that there was some policy that would allow the taking of the backpack.

[00:06:30] Speaker 03:
I disagree that this wasn't apparent from the record, Your Honor.

[00:06:34] Speaker 03:
always focused on the search of the backpack.

[00:06:37] Speaker 03:
That's where all of the contraband is in this search.

[00:06:40] Speaker 01:
The point is, could he have taken the backpack?

[00:06:42] Speaker 01:
And how does that play into the constitutionality of the search?

[00:06:46] Speaker 01:
That's the issue.

[00:06:47] Speaker 03:
I understand that, Your Honor.

[00:06:48] Speaker 03:
But in saying that the scope of this is the language we use below, that the scope of, let me find the actual quote.

[00:06:57] Speaker 03:
The scope of an inventory search cannot exceed what is necessary to serve the interests underlying the exception.

[00:07:03] Speaker 03:
The officers exceeded the permissible scope of an inventory search when they rummaged through the car looking for evidence of a crime.

[00:07:09] Speaker 03:
The focus has always been on this initial search of the backpack being inappropriate, with the idea being that if they hadn't done that, they wouldn't have ended up finding the contraband because they wouldn't have searched the backpack.

[00:07:21] Speaker 03:
And in the inevitable discovery section of our briefing, we also made the point, although

[00:07:26] Speaker 03:
could be more detailed, that he wasn't actually arrested in this traffic stop.

[00:07:32] Speaker 03:
So I think all of the relevant facts that the district court needed in order to understand how to rule on whether this is a lawful inventory or not were in the record.

[00:07:46] Speaker 03:
This court has said that if you make a generalized version of an argument in the district court so long as you meet those three criteria,

[00:07:54] Speaker 03:
it's okay to make a more detailed, a narrower, a more specific argument on appeal.

[00:08:00] Speaker 01:
What cases are you referring to?

[00:08:02] Speaker 03:
Sure, so primarily Murphy, but also the cases that... Murphy doesn't work.

[00:08:07] Speaker 01:
Murphy is not a suppression case, which I know firsthand, and Murphy is a case that deals with

[00:08:13] Speaker 01:
the making of an acquittal argument.

[00:08:16] Speaker 01:
That is an entirely different lens and framework than what we're dealing with here.

[00:08:20] Speaker 03:
So I do want to note that Murphy relies, so the government in their brief talks about how Murphy's a Rule 29 case.

[00:08:26] Speaker 03:
But in Murphy, the analysis for this

[00:08:29] Speaker 03:
General point that you can make a higher level argument in district court and narrow it on appeal Cites to cases that are not rule 29 cases specifically Macintosh and Street so streets a case where there is a challenge to the child pornography statute as being Facially over broad and that was sort of the challenge in the district court and then on appeal There's a specific focus on one verb in the statute and all the reasons why that verb is

[00:08:53] Speaker 03:
was overbroad.

[00:08:54] Speaker 03:
And the Court of Appeals ruled against us on the merits, but they said that was preserved because you made the generalized argument below, and it was enough to put the district court on notice of what they should be considering.

[00:09:07] Speaker 03:
And that's what Murphy relies on for its point.

[00:09:09] Speaker 03:
So I reject the idea that it is unique to the Rule 29 context.

[00:09:13] Speaker 03:
I will also note that the government doesn't dispute that we have always, and I believe we've preserved our whole argument, but regardless, the government doesn't dispute that we have always preserved a pretext argument in this case, and that this was.

[00:09:29] Speaker 02:
I'm sorry?

[00:09:30] Speaker 02:
I didn't hear what you said.

[00:09:30] Speaker 02:
You kind of swallowed a few words there.

[00:09:32] Speaker 02:
I apologize.

[00:09:33] Speaker 03:
We've always preserved a challenge to the inventory search being pretextual in this case.

[00:09:38] Speaker 03:
That's at least as far as the government's willing to go.

[00:09:41] Speaker 02:
You said already in your argument today

[00:09:43] Speaker 02:
that an inventory search can be started before you've called a tow truck, before you've started paperwork to take it.

[00:09:52] Speaker 02:
And so that is, that kind of goes against your idea that it is protectual, since by then they knew he couldn't possibly drive it.

[00:10:00] Speaker 02:
So they knew they had no option.

[00:10:02] Speaker 02:
But to tell you the truth.

[00:10:03] Speaker 03:
The cases where this court has condoned an early inventory like this, the driver hasn't been available to take his belongings with him, either because they're impounding a car where there's no driver around, or the driver's being arrested.

[00:10:18] Speaker 02:
But he's never said that backpack was his.

[00:10:20] Speaker 02:
First thing, I don't think it was his car.

[00:10:22] Speaker 02:
Am I correct about that?

[00:10:24] Speaker 02:
Right.

[00:10:24] Speaker 02:
That's not in dispute anymore, I think.

[00:10:27] Speaker 02:
So it's not his car.

[00:10:29] Speaker 03:
No, I mean, I think it is his car.

[00:10:30] Speaker 03:
He bought the car.

[00:10:31] Speaker 03:
And we put evidence forward in the suppression hearing that he had.

[00:10:34] Speaker 02:
Did he tell the cops that?

[00:10:36] Speaker 03:
He said he was buying his car from his friend, which was accurate.

[00:10:40] Speaker 02:
But the friend that he listed.

[00:10:42] Speaker 02:
was not the name of anybody that they found in the documentation in the car at all.

[00:10:47] Speaker 03:
To the extent the court is concerned that officers still needed to investigate his lawful authority to drive the vehicle at this time.

[00:10:55] Speaker 02:
Or whether he really owned it, because his claim follows from somebody that they couldn't

[00:11:03] Speaker 02:
relate to in the car at all.

[00:11:05] Speaker 02:
And they knew that he couldn't drive, so they knew they were going to have to impound the car.

[00:11:10] Speaker 02:
And the officer said, boy, we would never have given him that backpack without doing an investigation on it.

[00:11:17] Speaker 02:
And I think the first time that he said, that is not my backpack, was after they had picked up the backpack, but before they had gotten it opened and opened up the box inside of it.

[00:11:30] Speaker 02:
Is that correct?

[00:11:32] Speaker 03:
They had unzipped, opened, and reached into the backpack, but they hadn't opened the lockpacks.

[00:11:37] Speaker 03:
If I could just address the earlier parts of Your Honor's question.

[00:11:40] Speaker 03:
First, there's nothing in the record where the officer said he wouldn't have given him his backpack back.

[00:11:45] Speaker 03:
I think that's an argument that the answer brief makes.

[00:11:48] Speaker 01:
And why is it not in the record?

[00:11:49] Speaker 01:
Because we never had the theory articulated so that they would know that they needed to develop evidence on it.

[00:11:56] Speaker 03:
I disagree, Your Honor, because from the beginning, the premature

[00:12:01] Speaker 03:
Early, immediate search of the backpack was the focus of our inventory argument, both under a criteria prong and under an objective and subjective prong, but definitely under the subjective prong.

[00:12:13] Speaker 03:
And the government doesn't dispute this.

[00:12:15] Speaker 03:
We've always said that by going straight to the backpack, not telling anyone, maybe that doesn't make it an unlawful impoundment.

[00:12:21] Speaker 03:
And we're not arguing that it does.

[00:12:23] Speaker 03:
But that was pretextual and inappropriate.

[00:12:25] Speaker 03:
And if they hadn't done that,

[00:12:27] Speaker 03:
that this contraband wouldn't have been found.

[00:12:29] Speaker 03:
So there's no question that that part of the argument, at minimum, is preserved here.

[00:12:35] Speaker 03:
And there was no testimony, again, to the effect that they wouldn't have let him take the backpack otherwise, even in response to our pretext argument.

[00:12:46] Speaker 03:
And just to get back to the point about ownership of the vehicle, the district court has two bases for

[00:12:53] Speaker 03:
finding lawful impoundment here.

[00:12:55] Speaker 03:
We haven't challenged that.

[00:12:57] Speaker 03:
Uninsured and no driver's license.

[00:13:00] Speaker 03:
There's some atmospheric argument in the answer brief that maybe they need to make sure it's not a stolen vehicle.

[00:13:06] Speaker 03:
Maybe they need to make sure it's not a stolen backpack.

[00:13:09] Speaker 03:
The government has never tried to justify this as a criminal investigatory impoundment or search.

[00:13:14] Speaker 03:
And the inventory exception does not provide a loophole around having reasonable suspicion or probable cause to investigate if someone's in possession of stolen items.

[00:13:23] Speaker 01:
And if it was lawfully impounded, the basis to lawfully impound the car existed, why would that not also authorize them to lawfully inventory the contents of the vehicle?

[00:13:35] Speaker 03:
Both because it was against standard criteria here and because from a reasonableness perspective, the scope of a search cannot diverge from the basis for its justification.

[00:13:46] Speaker 03:
And if the justification is simply that this car can't be legally driven on the road, there's no reason to search what is effectively the equivalent of somebody's purse when they're going to go home.

[00:13:57] Speaker 01:
driven on the road, therefore, they're going to tow the vehicle.

[00:14:00] Speaker 01:
Therefore, they're going to inventory.

[00:14:01] Speaker 01:
They need to inventory the vehicle before they tow it.

[00:14:04] Speaker 01:
I mean, if the car is going to be lawfully impounded, that means that they are going to tow the vehicle away.

[00:14:09] Speaker 01:
They're going to put the vehicle into lawfully spent custody.

[00:14:12] Speaker 03:
Your Honor, impoundment and inventory are two separate doctrines.

[00:14:15] Speaker 03:
And I understand that in the average case, a lawful impoundment is going to mean a lawful inventory.

[00:14:20] Speaker 03:
But in the average case, there's not a driver there ready to take the equivalent of this purse home.

[00:14:24] Speaker 01:
Bingo.

[00:14:24] Speaker 01:
Something that has not been said.

[00:14:26] Speaker 01:
Again, Your Honor, we... I disagree with that, but I might reserve the remainder of my time for rebuttal and address it then, if that's all right.

[00:14:59] Speaker 04:
Good morning, Your Honors.

[00:15:00] Speaker 04:
I think it's still morning.

[00:15:01] Speaker 04:
Nora Wilson on behalf of the United States may please the court.

[00:15:08] Speaker 04:
Your Honors, I'd like to begin by discussing waiver, which is actually where the court had just left off in the previous section of this argument.

[00:15:16] Speaker 04:
Here we have a very clear waiver.

[00:15:19] Speaker 04:
Romero never argued to the district court that the officers were required to allow him to remove items from the car before the inventory search.

[00:15:27] Speaker 04:
He didn't use any words that would have conveyed the substance of his argument to the district court, and the United States can't be expected to respond to something that was not argued, and the district court can't be expected to address something that wasn't brought up.

[00:15:39] Speaker 04:
So it's unfair to bring it up now, and that's exactly why waiver is a rule.

[00:15:43] Speaker 04:
As the court is fully aware, federal rule of criminal procedure 12B3C requires that suppression motions be raised pre-trial if the basis for the motion is then reasonably available.

[00:15:54] Speaker 04:
It's clear that Warwick laid out that absent good cause, which is rarely found, the court must decline review of any argument not made in the motion to suppress and raise for the first time on appeal.

[00:16:05] Speaker 04:
Romero doesn't try to show good cause in this case, but instead argues that his

[00:16:10] Speaker 04:
New argument is not, in fact, new.

[00:16:12] Speaker 01:
And why isn't the defense counsel right that Murphy allows for this elaboration and building upon the argument that was raised below?

[00:16:20] Speaker 01:
If this argument below focused entirely on the premature invasion, essentially search of the backpack,

[00:16:30] Speaker 01:
This is a version of that, one could contend, that essentially the backpack would not have been there.

[00:16:38] Speaker 01:
I mean, in other words, there was unlawfulness because they would have taken the backpack.

[00:16:43] Speaker 04:
Your Honor, with Murphy, your Honor's correct that Murphy doesn't apply directly because it was a Rule 29 case.

[00:16:48] Speaker 04:
But even if arguing that the general assertion that one can build on more generalized arguments on appeal, as long as they're just doing a more detailed version of that,

[00:17:00] Speaker 04:
That's not what we have here.

[00:17:01] Speaker 04:
In here, we have a general umbrella, very similar to the cases like Anderson and White, where the defendant argues one version of a reasonable suspicion violation and then switches to a different reasonable suspicion violation on appeal.

[00:17:17] Speaker 04:
Those have been consistently ruled waived by this court.

[00:17:21] Speaker 04:
And even in Murphy, in the discussion under the Rule 29 context, there's still a discussion about there needing to be notice.

[00:17:30] Speaker 04:
the parties and the court need notice to be able to actually answer those allegations about those violations.

[00:17:38] Speaker 04:
And if they aren't brought up then, the court's not in a position to be able to evaluate it based on this meager record.

[00:17:45] Speaker 01:
Let me just toss something out to get your response to this.

[00:17:49] Speaker 01:
At least one reason

[00:17:51] Speaker 01:
that it struck me that Murphy is different than this situation.

[00:17:55] Speaker 01:
It's not because of the sort of categorical Rule 29 context versus this context, as much as the idea that in the Rule 29 context, a defendant is incentivized essentially to make a general objection.

[00:18:08] Speaker 01:
Because if you make a general objection, you have the potential to build on that objection.

[00:18:14] Speaker 01:
And if you articulate specific theories in a Rule 29 context,

[00:18:19] Speaker 01:
then you forfeit if you try to make another theory above, okay?

[00:18:24] Speaker 01:
It's my understanding that there really is no, the same sort of incentive structure does not work in, and I'm just talking this out, doesn't work in the Rule 12 context, because really there, you are supposed to enumerate theories, right?

[00:18:39] Speaker 04:
That's correct, Your Honor, and this court has been consistent since 1995 about the defendant in a Rule 12 context needing to

[00:18:48] Speaker 04:
supply sufficiently definite, specific, detailed, and non-conjectural factual allegations that the government can respond to and that the district court can address.

[00:18:56] Speaker 01:
Yeah, but the consequences of that have changed since Burke, right?

[00:18:59] Speaker 01:
Now it's very clear that that's a waiver, not a forfeiture.

[00:19:03] Speaker 04:
Yes, Your Honor.

[00:19:04] Speaker 04:
And with the waiver, there's not even plain error review.

[00:19:08] Speaker 04:
And I think also to your point, with regard to Murphy, the court there also talked about

[00:19:15] Speaker 04:
If you draw the district court's attention to a specific argument and you focus their attention on that, you can't expect that the record is going to reflect their attention being on a whole different topic.

[00:19:30] Speaker 04:
And they warned about that.

[00:19:31] Speaker 04:
And that's exactly what we have here.

[00:19:35] Speaker 04:
And so, Your Honor, I think that I've gone over most of the waiver issue.

[00:19:40] Speaker 04:
I would just like to highlight a couple of other things

[00:19:44] Speaker 04:
I already talked about Anderson and White.

[00:19:46] Speaker 04:
I think that Hamilton is another case that is very helpful in this context.

[00:19:51] Speaker 04:
And pointing to footnote nine in that case, I thought the way that they explained it matched up very well with our case.

[00:19:58] Speaker 04:
So let me interrupt.

[00:19:59] Speaker 04:
Just one second.

[00:19:59] Speaker 04:
Yes.

[00:20:00] Speaker 02:
Helen stated that there were occasions where an officer could begin an inventory search

[00:20:11] Speaker 02:
before the tow truck's been driven, called, before you've taken other steps.

[00:20:17] Speaker 02:
Do you agree with that, and how do we know that this was an inventory search at this time?

[00:20:22] Speaker 04:
Yes, so in a common sense perspective, of course it occurs before the vehicle is physically on the tow truck.

[00:20:30] Speaker 02:
No, no, before you, her statement was you could begin the inventory even before you complete the paperwork or call the tow truck driver.

[00:20:37] Speaker 04:
Yes.

[00:20:37] Speaker 02:
And you do agree with that?

[00:20:39] Speaker 02:
I do agree with that.

[00:20:41] Speaker 02:
than whether this was an inventory search or a specialized criminal evidence search?

[00:20:49] Speaker 04:
For one, they began inventorying the property before there was any discussion about arresting the defendant.

[00:20:57] Speaker 02:
Was he making a list?

[00:20:58] Speaker 02:
Did he have a clipboard and writing a list of what was in there?

[00:21:03] Speaker 04:
So Detective Montoya did discuss the general procedure for doing an inventory and that they were working as a team.

[00:21:09] Speaker 04:
and that the officers who had computers in their car, when they document items of value, they would put those on that tow sheet.

[00:21:15] Speaker 02:
Was he shouting out to his other officer, one backpack, brown?

[00:21:20] Speaker 02:
He was not shouting out, no, Your Honor, but... So how do... I mean, so if they had... It doesn't seem to bear the hallmarks of trying to make an inventory.

[00:21:28] Speaker 02:
I mean, unless the guy's got a photographic memory and he's going to say, boy, I found a whole lot of stuff in this car.

[00:21:33] Speaker 02:
And I remember there was this, this, this, this, this, and this.

[00:21:37] Speaker 02:
I don't think that's the way.

[00:21:38] Speaker 02:
Typically, inventory searches are more methodical than that.

[00:21:41] Speaker 04:
Your Honor, I understand what you're saying.

[00:21:43] Speaker 04:
But an inventory search, as explained by both Detective Montoya and Officer Simmons in the record, is for searching for items of value.

[00:21:52] Speaker 04:
So an inventory search is not going to list.

[00:21:55] Speaker 02:
Or an item of risk and violence.

[00:21:59] Speaker 02:
That is, they don't want a car sitting in an impoundment that's

[00:22:03] Speaker 02:
Yes.

[00:22:05] Speaker 04:
They explained that the purpose is to protect from both theft of the vehicle or from items in the vehicle and also to protect the department from liability for said items being missing later on.

[00:22:16] Speaker 02:
But you do take an inventory when you're doing the search.

[00:22:20] Speaker 02:
And this wasn't the way, I don't think this was the way that search was being conducted.

[00:22:26] Speaker 04:
So Your Honor, to get back to the point I was discussing just a moment ago, when the officers are doing the inventory, they are to document items of value and for the purposes we just discussed.

[00:22:36] Speaker 04:
But specifically in the context of determining which items should be listed on a tow sheet when they're doing the inventory, they're going to list items of value.

[00:22:44] Speaker 04:
They're not going to list every single item that's in the vehicle.

[00:22:48] Speaker 04:
There were a lot of items in this vehicle, things strewn about the backseat.

[00:22:51] Speaker 04:
one of the most common areas where someone would carry something of value would be in their personal baggage.

[00:22:58] Speaker 01:
And we know that because of the testimony of Officer Montoya?

[00:23:04] Speaker 04:
They did discuss that I believe both officers were asked about whether a backpack is a common place where items of value would be stored.

[00:23:13] Speaker 01:
thought I understood, and perhaps incorrectly, the colloquy with Judge Ebell to go to the question of how do we know it is an inventory search when he just went to the backpack?

[00:23:26] Speaker 01:
I mean, at that juncture, we knew that he didn't have a driver's license, right?

[00:23:32] Speaker 01:
It wasn't valid.

[00:23:33] Speaker 01:
And we knew that at least there was some basis to believe the car wasn't his, right?

[00:23:38] Speaker 01:
And so at that point,

[00:23:39] Speaker 01:
How do we know that this is an unlawful search as opposed to an inventory search?

[00:23:45] Speaker 04:
We know it's an inventory search because they knew it was going to be towed.

[00:23:48] Speaker 04:
And even without the driver's license issue, which is a whole other reason, knowing that the vehicle has no insurance and that there is no person who is going to be allowed to drive that vehicle, when Detective Montoya knows that, when other officers know that that

[00:24:04] Speaker 04:
vehicle has no insurance, it's going to be towed.

[00:24:07] Speaker 04:
The search is an inventory.

[00:24:08] Speaker 02:
That didn't answer the question, because even on a very standard run-of-the-mill inventory, and you know it's going to be towed, somebody could get out of the car and say, OK, I know you got a tow, because I don't have a valid driver's license.

[00:24:22] Speaker 02:
It's revoked.

[00:24:23] Speaker 02:
But I do have my purse in the car with my driver's license and money and cash.

[00:24:30] Speaker 02:
I'd like to take that with me.

[00:24:32] Speaker 02:
And I assume the officers would say, yeah, we don't need, that's a removable item.

[00:24:37] Speaker 02:
We don't need to take that, because you're legally authorized to carry a purse even if you don't have a driver's license.

[00:24:45] Speaker 02:
So that doesn't, I mean, we've got to go more than just as an inventory search.

[00:24:51] Speaker 02:
And we knew we had to take an inventory of this backpack because we weren't going to allow you to take it.

[00:24:56] Speaker 02:
Now that becomes clear once he says, it's not mine.

[00:25:00] Speaker 02:
The problem is,

[00:25:01] Speaker 02:
He didn't say that until they had already started to search the backpack.

[00:25:06] Speaker 04:
So, Your Honor, this goes back to why this argument has been waived is because this case, the defendant did not ask to remove items from the vehicle.

[00:25:16] Speaker 04:
And furthermore, no questions were asked about whether the officers would have allowed that in these circumstances, whether the officers would have felt that that was safe for them when this vehicle had, they were still investigating whether

[00:25:29] Speaker 04:
the vehicle had been stolen and then the ownership of the vehicle, they still had no proof of who, that this driver owned the vehicle.

[00:25:38] Speaker 04:
This person had pulled away from officers from three marked units that lit up their lights right behind him in a parking lot and he drove away from them and then refused to pull over for several minutes on the road and they specifically said,

[00:25:54] Speaker 04:
At one point when he offered to get the whatever document he felt might be in the glove box to prove ownership of the vehicle, the officer said, no, given the way that you have behaved thus far, we are not going to allow you to reach into that glove box, okay?

[00:26:10] Speaker 04:
And they also performed a pat down when they removed him from the vehicle.

[00:26:13] Speaker 04:
So there are things in the record

[00:26:15] Speaker 04:
that indicate that there were officer safety concerns as well, but that was not explored because that was not the argument made in district court.

[00:26:21] Speaker 01:
Well, let me just zero in on a couple of facts that I want to tease out for a second.

[00:26:26] Speaker 01:
Okay, he had not disclaimed ownership of the backpack prior to the officer sticking his hand in the backpack, right?

[00:26:36] Speaker 04:
Right.

[00:26:37] Speaker 01:
OK.

[00:26:37] Speaker 01:
Yeah.

[00:26:38] Speaker 01:
All right.

[00:26:38] Speaker 01:
What is the implication of that intrusion into the backpack at that juncture?

[00:26:45] Speaker 01:
Are you claiming that that is covered within the scope of an inventory search, which he knew he was going to undertake anyway?

[00:26:52] Speaker 01:
Because at least I understood the defendant to be saying that that act of intrusion itself reflected a pretextual illegal evidence searching type investigatory purpose.

[00:27:06] Speaker 04:
I think the defendant was making that argument, but the actions of Detective Montoya in looking in the backpack were within the inventory search.

[00:27:13] Speaker 04:
All of that action was after he knew the car was going to be towed.

[00:27:19] Speaker 04:
And I'm not sure if Your Honor was asking this, but to the extent of the timing of whether that affected him making the statement about abandoning the backpack, it didn't.

[00:27:30] Speaker 04:
He already knew what was in the backpack.

[00:27:32] Speaker 04:
He was already going to disclaim the backpack because he knew there was contraband inside of it.

[00:27:37] Speaker 04:
He did not know what Detective Montoya had or had not seen at the point that he held up the backpack and asked, is this yours?

[00:27:45] Speaker 04:
And in fact, he had already began hedging before that when he asked, is all this stuff in this vehicle yours?

[00:27:50] Speaker 04:
And he says, most of it, yeah.

[00:27:52] Speaker 04:
And then he starts talking about how buying it from my buddy, then

[00:27:57] Speaker 04:
Then he says, the backpack's not mine.

[00:28:00] Speaker 04:
I don't know whose it is.

[00:28:01] Speaker 04:
Must be my buddy's.

[00:28:02] Speaker 01:
Is there any?

[00:28:06] Speaker 01:
OK, I lost my train of thought.

[00:28:08] Speaker 04:
Go ahead.

[00:28:10] Speaker 04:
So those statements were not affected by anything that the detective did.

[00:28:15] Speaker 01:
OK, I remember what I was going to ask.

[00:28:17] Speaker 01:
Does it matter at all whether Detective Montoya indicated, stated his purpose when he reached his hand?

[00:28:27] Speaker 01:
in the bag, in other words, stated that now we're in an inventory search posture, because at least I heard that as being one fact that was highlighted by the defendant.

[00:28:38] Speaker 04:
No.

[00:28:39] Speaker 04:
Detective Montoya's statements to the defendant make no difference as to when the inventory began.

[00:28:43] Speaker 04:
Same even making statements to other officers.

[00:28:47] Speaker 04:
The point is when the vehicle was going to be towed, when the officers were aware the vehicle needed to be towed, it's an inventory search.

[00:28:56] Speaker 04:
And so whether he announces that to the defendant or not.

[00:28:58] Speaker 00:
Why would they do an inventory search on the side of a busy road, knowing it's going to be towed, instead of waiting until it is towed?

[00:29:08] Speaker 04:
So for the most part, what the detective and I think Officer Simmons testified about as well is that they're trying to identify items of value, including before it's at the tow yard,

[00:29:21] Speaker 04:
because they don't want things to be shown up as missing later on.

[00:29:24] Speaker 04:
So if someone goes to pick up their vehicle the next day or however many days it is before it's available for them to pick up, that they can't say that, oh, they don't have to deal with the issue of some tow yard employee or something going missing between the time the car is actually put on that tow truck and the time that the lawful owner regains access to the vehicle.

[00:29:48] Speaker 04:
So it is the timing of doing- So is this a common practice?

[00:29:53] Speaker 04:
Yes, to do inventories before the actual physical toe begins.

[00:29:58] Speaker 04:
Yes, Your Honor.

[00:30:00] Speaker 04:
And so, I'm sorry, I lost my train of thought.

[00:30:03] Speaker 04:
I think that, oh, and I'm out of time, so I guess that's OK.

[00:30:07] Speaker 01:
Well, I mean, if you have something to say, go ahead and say it.

[00:30:10] Speaker 04:
I lost it, Your Honor, so it's no problem.

[00:30:12] Speaker 04:
Thank you.

[00:30:13] Speaker 01:
Thank you.

[00:30:15] Speaker 01:
All right.

[00:30:15] Speaker 03:
Three quick points on preservation.

[00:30:17] Speaker 03:
First, there's no dispute we preserved our pretext argument.

[00:30:21] Speaker 03:
The district court doesn't dispute that there's pretext here, just says if there's a lawful basis for an impoundment, there's a lawful basis for inventory.

[00:30:28] Speaker 03:
And that is an incomplete analysis for many of the reasons Judge Ebell highlighted.

[00:30:32] Speaker 03:
with the government.

[00:30:34] Speaker 03:
Second, the idea that the government was missing an opportunity to explain that the officers would have searched the backpack before letting him take it, that would be an illegal search.

[00:30:42] Speaker 03:
That's Braxton footnote 6.

[00:30:44] Speaker 03:
You can't inventory something if you're not actually going to impound it.

[00:30:47] Speaker 03:
Third, I would just urge the court to look at the cases the government cites in the preservation section.

[00:30:53] Speaker 03:
They are really different.

[00:30:55] Speaker 03:
Anderson is no reasonable suspicion of a harassment statute, doesn't preserve no reasonable suspicion of a jaywalking statute.

[00:31:02] Speaker 03:
Hamilton, a challenge for a stop not having reasonable suspicion is not the same as an escalation to arrest argument where the degree of force resulted in an arrest without probable cause.

[00:31:13] Speaker 03:
Those are very different doctrinal arguments in these cases.

[00:31:18] Speaker 01:
OK.

[00:31:20] Speaker 03:
Thank you, Your Honors.

[00:31:22] Speaker 03:
If you have no more questions, we'd ask you to reverse.

[00:31:25] Speaker 03:
Thanks.

[00:31:28] Speaker 01:
All right.

[00:31:29] Speaker 01:
Case is submitted.