[00:00:00] Speaker 03:
And the first matter we have today is 24-2080, United States versus Ulubari.

[00:00:13] Speaker 03:
And if I've mispronounced that, please correct me.

[00:00:21] Speaker 00:
May it please the court, I am Ryan Traskoski, and I represent the defendant, Manuel Ulubari.

[00:00:26] Speaker 00:
So we've got a lot going on in this one, at least for a motion to suppress.

[00:00:31] Speaker 00:
I will start off with the reason for the traffic stop, which is the allegedly loud muffler.

[00:00:37] Speaker 00:
And really, our whole theme in this case, for every facet of this case, is going to be that what occurred was a pretext for a search.

[00:00:46] Speaker 00:
Everything was pretextual.

[00:00:48] Speaker 00:
So he's pulled over for having an allegedly loud muffler.

[00:00:52] Speaker 03:
Well, his own mother said it was unusually loud, didn't she?

[00:00:57] Speaker 00:
Well, that's part of it.

[00:00:59] Speaker 00:
I mean, we're aware that the district court found that the officers maybe even had a reasonable mistake on this, or they had a reasonable suspicion.

[00:01:13] Speaker 00:
But there's really- Or probable cause.

[00:01:15] Speaker 03:
I think the district court found both, didn't it?

[00:01:18] Speaker 00:
It found both, correct.

[00:01:19] Speaker 00:
But we're arguing that there was no probable cause because there was never a muffler violation.

[00:01:23] Speaker 00:
There was no proof of that, no finding of that.

[00:01:26] Speaker 03:
In order to pull him over, we're talking about the stop here, right?

[00:01:31] Speaker 00:
Correct.

[00:01:32] Speaker 03:
In order to pull him over, do they have to have proof?

[00:01:36] Speaker 03:
Or do they just have to have reasonable suspicion?

[00:01:39] Speaker 00:
Reasonable suspicion is the alternative, but we are arguing that they were not being reasonable.

[00:01:44] Speaker 00:
We have no audio, video footage of the stop.

[00:01:47] Speaker 00:
There's no evidence of how loud the actual sound was, no decibels.

[00:01:52] Speaker 00:
It's just all very subjective.

[00:01:55] Speaker 00:
And for a stop, we're arguing that there's got to be some objective criteria.

[00:02:00] Speaker 00:
So he was never cited for a muffler violation.

[00:02:07] Speaker 00:
And we're arguing that's proof of pretext.

[00:02:11] Speaker 00:
There was no proof the muffler was not in its original state.

[00:02:15] Speaker 03:
Well, you don't have to.

[00:02:16] Speaker 03:
Under the ordinance, all you have to do is have it's a violation.

[00:02:21] Speaker 03:
if the muffler is not in good working order and in constant operation to prevent excessive and unusual noise.

[00:02:29] Speaker 03:
It doesn't have to be modified, it just has to be not well maintained.

[00:02:34] Speaker 00:
That is part of it too, yes.

[00:02:36] Speaker 00:
So we're disarguing it just too subjective for those findings.

[00:02:41] Speaker 03:
Okay, so if maybe we disagree with you and we think the stop was legitimate,

[00:02:47] Speaker 03:
Why don't we move on?

[00:02:49] Speaker 00:
Sure.

[00:02:49] Speaker 00:
So the next major issue, of course, is the impoundment.

[00:02:52] Speaker 00:
So under Opperman, the court knows that really the standard is, was the vehicle impeding traffic or threatening public safety or convenience?

[00:03:01] Speaker 00:
So we're arguing it was not.

[00:03:02] Speaker 00:
The car was not obstructing traffic or presenting a safety hazard.

[00:03:07] Speaker 00:
It wasn't on the street.

[00:03:09] Speaker 00:
It did not block the flow of traffic.

[00:03:11] Speaker 00:
And the threat to public safety must be imminent.

[00:03:14] Speaker 00:
And that's the Woodard case.

[00:03:16] Speaker 04:
Opperman is the seminal case here.

[00:03:19] Speaker 04:
And Opperman certainly didn't involve anything much different than this case.

[00:03:24] Speaker 04:
And in that case, the court said that as long as it violates parking ordinances, which is what we have here, it thereby jeopardizes public safety and the efficient movement in vehicular traffic.

[00:03:40] Speaker 04:
In Opperman,

[00:03:42] Speaker 04:
Defendant's vehicle was in the parking zone overnight that you weren't supposed to park in it was still there it was ticketed and it was still there at 10 o'clock in the morning when it was no longer a Impromissible and they still said it was okay at 10 o'clock in the morning to impound it.

[00:03:57] Speaker 04:
How is this different?

[00:03:59] Speaker 04:
Well, what more do we need here because of our other fact also had a gun in this car?

[00:04:04] Speaker 04:
Gun hidden out of view but in the car in a high crime area and the officers know it's there because he's admitted it's there and

[00:04:12] Speaker 00:
Correct.

[00:04:12] Speaker 00:
So Opperman is close.

[00:04:14] Speaker 00:
We're arguing that our other factors make a difference.

[00:04:17] Speaker 00:
The fact that it was not going to be there very long.

[00:04:20] Speaker 04:
Close.

[00:04:20] Speaker 04:
Why is Opperman close?

[00:04:21] Speaker 04:
Why isn't this even stronger than Opperman?

[00:04:24] Speaker 00:
Because of our ancillary facts that the car would not have been there long The defendant would have bonded it out and got it right away or the mother would have gotten it right away Well, he wasn't going to be allowed to bond out right away and they weren't going to allow the mother she wasn't there So they went ahead and called and impounded it They don't have to let the mother come and they don't have to wait for mom to come Oh, I disagree with that point because under Sanders Factor 3 the Says is you know if there's an internment alternative to a pound mint

[00:04:53] Speaker 00:
especially if there's another driver available to take the car.

[00:04:57] Speaker 04:
There was no driver on the scene.

[00:04:59] Speaker 04:
He had to call his mother, who they didn't know if she had a valid ID or if when she got there she was somebody who was able to get in a car that had a loaded weapon in it.

[00:05:10] Speaker 04:
That's not a person on the scene.

[00:05:13] Speaker 04:
That's not another driver that's readily available that they can check.

[00:05:18] Speaker 04:
Plus, the officer said, this car was ridiculously loud

[00:05:23] Speaker 04:
as even mom recognized.

[00:05:25] Speaker 04:
And that's another reason not to let them drive it.

[00:05:29] Speaker 00:
We're arguing that the police had an affirmative duty to inquire about the circumstances of the mother, whether she was close by, whether she was capable of driving.

[00:05:39] Speaker 03:
And really... Well, how is this different than a broken taillight?

[00:05:42] Speaker 03:
I mean, you've got a muffler that's out of compliance.

[00:05:47] Speaker 03:
And if you drive it, you're in violation of the traffic laws.

[00:05:53] Speaker 03:
So nobody can drive it, can they?

[00:05:56] Speaker 00:
Yes, because the police are not towing cars for broken taillights.

[00:06:01] Speaker 00:
In this case, they're not towing cars for imperfect parking jobs.

[00:06:06] Speaker 03:
Well, so I'm not talking about the parking job right now.

[00:06:09] Speaker 03:
I'm talking about an illegal muffler, a muffler that is excessively loud.

[00:06:14] Speaker 00:
OK, I see what you're saying.

[00:06:18] Speaker 00:
If everything went smoothly here and he was just cited for a bad muffler, the police wouldn't let him go.

[00:06:25] Speaker 00:
They wouldn't tow the car.

[00:06:27] Speaker 03:
Well, except for he had two outstanding ones.

[00:06:30] Speaker 00:
True.

[00:06:30] Speaker 00:
But just in a vacuum, police let people drive away after tickets with a headlight out, for example.

[00:06:40] Speaker 03:
Is that discretionary?

[00:06:43] Speaker 00:
I'm not.

[00:06:44] Speaker 00:
I'm sure there's criteria for their impoundment.

[00:06:47] Speaker 00:
But as the district court even found in this case, it's a slippery slope of whether you're going to be impounding people for imperfect parking jobs or very small civil infractions.

[00:06:57] Speaker 00:
I'm not sure what the exact guidelines are on that.

[00:07:00] Speaker 00:
But I'm sure courts are not going to be free for all for impoundments that really are just going to be ruses for searches.

[00:07:10] Speaker 00:
And Your Honor brought up the firearm aspect to this case.

[00:07:15] Speaker 00:
So we're going to be arguing, we are arguing that the so-called firearms exception no longer exists under the Second Amendment.

[00:07:26] Speaker 04:
I don't think this has anything to do with the Second Amendment.

[00:07:28] Speaker 04:
This has to do with whether the impoundment was reasonable.

[00:07:32] Speaker 04:
And the firearm added another level of safety issue to the mix is all I'm saying.

[00:07:40] Speaker 04:
I don't understand your Second Amendment argument at all.

[00:07:42] Speaker 04:
I'm not suggesting he didn't have a right to have the firearm in the vehicle.

[00:07:47] Speaker 04:
We're talking about whether the impoundment was reasonable.

[00:07:51] Speaker 00:
With regard to the impoundment, I believe that the firearm is completely irrelevant based on our Second Amendment arguments.

[00:07:58] Speaker 03:
We have case law that says that's not true.

[00:08:02] Speaker 03:
You're saying that somehow the Second Amendment, which was in existence when we decided these cases, has now overruled our cases?

[00:08:11] Speaker 00:
It's a new world order now after Bruin, Rahimi, and their progeny.

[00:08:16] Speaker 00:
It's ever evolving daily that the Second Amendment.

[00:08:20] Speaker 03:
I would agree it's ever evolving daily.

[00:08:23] Speaker 03:
That I agree with you.

[00:08:23] Speaker 00:
Right.

[00:08:24] Speaker 00:
It's ever evolving daily.

[00:08:26] Speaker 00:
That there's no more need to secure firearms exceptions than cars.

[00:08:31] Speaker 00:
Now under this new case law, the car is now going to be treated the same as a home.

[00:08:37] Speaker 00:
And really, the underlying logic for all that.

[00:08:39] Speaker 03:
What case law do you rely on?

[00:08:41] Speaker 03:
Can you give me your best case that a car is treated the same as a home for Fourth Amendment purposes?

[00:08:45] Speaker 00:
No, this is all brand new.

[00:08:47] Speaker 00:
We're hoping it starts here.

[00:08:48] Speaker 03:
OK, so you have no case law, but you're arguing that we should now say that cars should be treated the same as homes under the Fourth Amendment because of the Second Amendment.

[00:09:02] Speaker 00:
Yes.

[00:09:04] Speaker 00:
Yes.

[00:09:04] Speaker 00:
So this is, you know, brand new territory occurring almost daily.

[00:09:08] Speaker 00:
And really, you know, the possibility that the basic of the basis of the old case law was that the hypothetical that a vandal may break into the car and take the gun.

[00:09:21] Speaker 00:
But we're agreeing that that's constitutionally irrelevant now.

[00:09:24] Speaker 03:
And that... What in Bruins suggests that it's constitutionally irrelevant from a community caretaking

[00:09:32] Speaker 03:
standpoint for the police to be concerned about an unsecured firearm in an abandoned car?

[00:09:41] Speaker 00:
One second.

[00:09:52] Speaker 00:
It's still a concern, but the Second Amendment of the car owner trumps it.

[00:10:01] Speaker 00:
They're going back to the historical times now.

[00:10:04] Speaker 00:
Could you keep a gun in your stagecoach on your horse?

[00:10:07] Speaker 00:
And you could.

[00:10:07] Speaker 00:
So that's how it would be.

[00:10:09] Speaker 04:
We're not talking about whether he could keep the gun in the car.

[00:10:12] Speaker 04:
That's not the issue in this case.

[00:10:14] Speaker 04:
His possession of the gun, his right to have a gun, not the issue here.

[00:10:19] Speaker 00:
I'm just saying it should not be part of the calculus for the impoundment question.

[00:10:25] Speaker 00:
I'll reserve the rest of the time for my rebuttal.

[00:10:27] Speaker 03:
What about the inventory search?

[00:10:31] Speaker 00:
Sure.

[00:10:34] Speaker 00:
So the inventory search was not done according to the required standardized criteria, so it's not valid.

[00:10:44] Speaker 00:
It was so inefficient that it was pretextual.

[00:10:47] Speaker 00:
As the district court found, there was no contemporaneous itemization of the contents of the car, no detailed inventory list.

[00:10:56] Speaker 00:
It just was not good faith.

[00:10:59] Speaker 00:
There was no need to protect anything in the car.

[00:11:01] Speaker 00:
There was nothing valuable in plain view.

[00:11:03] Speaker 03:
What do you do with Bertine from the Supreme Court that approved a pretty, as they called, slipshod inventory search that, like this one, didn't catalog cash?

[00:11:17] Speaker 03:
found in the vehicle.

[00:11:18] Speaker 00:
Yeah, I don't remember the exact facts of that case.

[00:11:22] Speaker 00:
But there was just so much here that wasn't cataloged.

[00:11:24] Speaker 00:
I could go through it, cash and just all the other things.

[00:11:28] Speaker 00:
And it was just so woefully done that we were arguing that it was just the ruse for a search.

[00:11:35] Speaker 00:
Thank you.

[00:11:36] Speaker 03:
Thank you.

[00:11:46] Speaker 01:
Good morning, Your Honors.

[00:11:47] Speaker 01:
May it please the Court, Tiffany Walters for the United States.

[00:11:51] Speaker 01:
The Fourth Amendment permits reasonable impoundments of vehicles as part of law enforcement's community caretaking duties.

[00:11:57] Speaker 01:
Opperman tells us that impoundments are reasonable when a vehicle impedes traffic or threatens public safety or convenience.

[00:12:04] Speaker 03:
This one didn't impede traffic.

[00:12:06] Speaker 01:
It didn't impede traffic.

[00:12:07] Speaker 01:
It was more of a public convenience type case.

[00:12:10] Speaker 01:
While there was no immediate threat to public convenience, had it been left there, it was blocking two parking stalls and it was on a metered street in downtown Albuquerque.

[00:12:18] Speaker 01:
Eventually, just like the car in Opperman, it would have blocked spots that other cars may have parked in.

[00:12:25] Speaker 01:
And officers were able to address that situation before waiting for the inconvenience to happen, just like in Opperman.

[00:12:31] Speaker 01:
There's no evidence on the record that there are cars circling at that moment and needing that parking spot.

[00:12:36] Speaker 01:
Officers can anticipate that this individual is being arrested

[00:12:39] Speaker 03:
may not be back to this car for some time and address it by impounding the car.

[00:12:52] Speaker 01:
They did not have an obligation to contact her where she was not present and where the car was not immediately operable.

[00:12:58] Speaker 01:
So we have the muffler violation, which would have prevented her from driving the car away anyway.

[00:13:02] Speaker 01:
But then also, she's not on the scene, as your Honor mentioned.

[00:13:05] Speaker 03:
Well, the person to drive away is almost never on the scene.

[00:13:09] Speaker 03:
And yet, we have case law that suggests there's an obligation to make an effort.

[00:13:14] Speaker 01:
Well, I think when you look at the cases that do find an obligation to make an effort, they're very fact-specific.

[00:13:20] Speaker 01:
thinking of Ramos, which is a case where, similar to this, this court found that there was an obligation to contact mom.

[00:13:28] Speaker 01:
But there, it was different in that we were talking about a very small town where the officers know mom.

[00:13:31] Speaker 01:
No mom lives just down the street, essentially, and could be there in a matter of minutes.

[00:13:36] Speaker 01:
Here, we're in Albuquerque, where we don't know the mother.

[00:13:39] Speaker 01:
We don't know when she will be there.

[00:13:40] Speaker 01:
We don't know if she will show up.

[00:13:42] Speaker 01:
The officers testified that they had done this in situations where the individual who showed up was incapable of driving the car because they were intoxicated or didn't have a license.

[00:13:50] Speaker 01:
And so there's not an obligation for the officers to reach out and wait around to see if mom will show up at 1130 at night to take the car.

[00:13:58] Speaker 03:
And Ramos was the car on private property?

[00:14:01] Speaker 01:
Correct.

[00:14:02] Speaker 01:
I mean, that's the other piece here, is that we are on public property.

[00:14:05] Speaker 01:
And in private property cases, there's sort of a presumption against her.

[00:14:09] Speaker 01:
That's a factor in terms of leaning against the reasonableness of impoundment.

[00:14:12] Speaker 01:
But here, we're on public property.

[00:14:14] Speaker 01:
Ramos, the car could have just been left in this, I believe it was like a convenience store parking lot.

[00:14:19] Speaker 01:
for a period of time until mom showed up.

[00:14:21] Speaker 01:
So the officers wouldn't have to necessarily wait around for her.

[00:14:24] Speaker 01:
But here, we're on a street in downtown Albuquerque in the middle of the night, in a high crime area, in a car.

[00:14:31] Speaker 03:
The testimony from mom was she lived closer than the towing company and could actually get there faster, if I'm remembering.

[00:14:37] Speaker 01:
In Ramos.

[00:14:38] Speaker 03:
Isn't that this one, too?

[00:14:40] Speaker 01:
I don't believe that's the case here.

[00:14:41] Speaker 01:
I think there's not clear evidence as to where the towing company is or where mom lives in this case.

[00:14:46] Speaker 01:
But that was the case in Ramos.

[00:14:48] Speaker 01:
Now, she did ultimately show up on the scene, but that was after officers had already made the decision to arrest and to impound.

[00:14:54] Speaker 01:
They'd searched the car.

[00:14:55] Speaker 01:
At that point, the inventory search had been completed.

[00:14:57] Speaker 03:
She came after the inventory search was completed?

[00:15:01] Speaker 01:
Yes.

[00:15:01] Speaker 01:
Yes.

[00:15:02] Speaker 03:
As they're putting on the tow truck, right?

[00:15:04] Speaker 01:
Right.

[00:15:04] Speaker 01:
The tow truck is pulling up.

[00:15:05] Speaker 01:
They're saying, watch out for the tow truck.

[00:15:07] Speaker 01:
So at that point, the gun, the drugs have already been discovered.

[00:15:10] Speaker 01:
Even if they were able to cancel the tow or something, it wouldn't have changed anything about the outcome of this case.

[00:15:16] Speaker 03:
What about driving away?

[00:15:19] Speaker 02:
Is there any evidence in the record that indicates that it is impossible to drive this vehicle without the excessive noise?

[00:15:30] Speaker 01:
I don't know that the evidence goes as far as to say it's impossible, but the officers did testify it would create an ongoing nuisance given the excessive noise that this vehicle was creating.

[00:15:40] Speaker 02:
What about the... I'm sorry, Your Honor.

[00:15:45] Speaker 01:
Could you repeat?

[00:15:47] Speaker 01:
Did the district court rely on that?

[00:15:50] Speaker 01:
Did the district court rely on that?

[00:15:53] Speaker 01:
The district court did find that it couldn't be driven away.

[00:15:56] Speaker 01:
Yes.

[00:15:57] Speaker 01:
I think that's in the findings of facts.

[00:15:59] Speaker 02:
Because of the aggressive ways.

[00:16:00] Speaker 01:
Yes.

[00:16:04] Speaker 03:
OK.

[00:16:04] Speaker 03:
What about the argument that police routinely let people drive away with a broken tail light or with some minor

[00:16:16] Speaker 03:
a coordinates violation even though it is technically still violating that.

[00:16:23] Speaker 01:
I don't believe Mr. Labargue cited anything in the record to support that, although that may be the case.

[00:16:28] Speaker 01:
I point to Kindle where there was a broken taillight and this court found that the vehicle was inoperable and couldn't be driven away because of that.

[00:16:35] Speaker 01:
And here the officers are able to make the determination that this muffler is so loud that they can hear it blocks away.

[00:16:40] Speaker 01:
It's driving around in the middle of the night in downtown Albuquerque.

[00:16:43] Speaker 01:
And this is not a situation where they want to have mom come and get the car and continue to drive it in the state.

[00:16:50] Speaker 03:
What about the rather surprising lack of detail in the inventory search?

[00:16:58] Speaker 03:
I mean, it was beyond slipshod.

[00:17:03] Speaker 01:
Correct.

[00:17:03] Speaker 01:
The paperwork was not properly completed as far as the inventory search.

[00:17:07] Speaker 01:
But here we do have other factors that weigh in favor of the reasonableness of the inventory search.

[00:17:12] Speaker 04:
It was reasonable can it be to leave off $10,000 in cash in an inventory search?

[00:17:19] Speaker 04:
If there's one thing that you would think you would want to put itemize, it would be $10,000 in cash.

[00:17:26] Speaker 01:
That's a fair point.

[00:17:27] Speaker 01:
There's a statement on the cameras where the officer is saying they want to count this under the cameras.

[00:17:32] Speaker 01:
I don't know.

[00:17:33] Speaker 04:
Why that would preclude it being... You don't know if they did count it under the camera?

[00:17:36] Speaker 01:
There is, I think it's in Exhibit 13, that video, they show them taking the cash back to the police station.

[00:17:43] Speaker 01:
It's at the police station, it's on the table, it's in a plastic bag.

[00:17:46] Speaker 01:
That's in the record?

[00:17:46] Speaker 01:
That's in the video, yes, which is in the record.

[00:17:49] Speaker 04:
I'm sorry, it's in the video that was taken at the station?

[00:17:52] Speaker 01:
It's a lapel camera video, so one of the officers had the lapel camera running from the time of the stop all the way till when he went back to the station.

[00:17:58] Speaker 04:
And that, them counting the cash, is part of the record?

[00:18:00] Speaker 01:
I don't think you can see... I'm sorry.

[00:18:03] Speaker 01:
I don't think you can see them counting it.

[00:18:05] Speaker 01:
Because I think another individual besides the officer who was wearing the lapel counted it.

[00:18:09] Speaker 01:
But you see it on the counter in a plastic bag, yes.

[00:18:13] Speaker 01:
In Exhibit 13, it's Officer Herbst's lapel camera.

[00:18:19] Speaker 01:
So we don't have any suggestion that there's anything funny going on here.

[00:18:22] Speaker 04:
Certainly it should- They also didn't note that they found a controlled substance.

[00:18:26] Speaker 04:
I mean, they didn't note the drugs that were found in it.

[00:18:29] Speaker 01:
Correct.

[00:18:29] Speaker 04:
I mean, certainly- That's also odd.

[00:18:31] Speaker 01:
Yes, I think it's fair to criticize the.

[00:18:34] Speaker 04:
Perhaps unreasonable.

[00:18:36] Speaker 04:
Correct.

[00:18:36] Speaker 04:
How do you compare this case to the Supreme Court case?

[00:18:40] Speaker 04:
I'm trying to remember the name.

[00:18:40] Speaker 04:
Bratine.

[00:18:41] Speaker 01:
Bratine.

[00:18:42] Speaker 04:
Bratine.

[00:18:42] Speaker 01:
So similarly.

[00:18:43] Speaker 04:
I get that there was cash.

[00:18:44] Speaker 04:
I think it was $1,000, and that was back in the early 80s.

[00:18:48] Speaker 04:
Correct.

[00:18:49] Speaker 04:
But I don't think that equates to $10,000 and narcotics.

[00:18:54] Speaker 04:
It's not the same.

[00:18:56] Speaker 01:
Perhaps it's not directly equivalent, but it's similar in many ways.

[00:18:59] Speaker 01:
And then when we look at the timing, the officers have completed the inventory search by the time they fill out this paperwork.

[00:19:04] Speaker 01:
Should they have filled out the paperwork better?

[00:19:05] Speaker 01:
Of course.

[00:19:07] Speaker 01:
But at the same time, they've already found the different evidence, the guns, the drugs, at the time that they then later complete the form.

[00:19:16] Speaker 01:
So whether you want to look at it in terms of a causal relationship

[00:19:20] Speaker 01:
or inevitable discovery, had they completed that form correctly, it wouldn't have changed anything.

[00:19:24] Speaker 01:
That same evidence would have been found by the officers.

[00:19:28] Speaker 01:
And we also do know that it was consistent with Albuquerque police standard operating procedures that if they impound, they have to inventory.

[00:19:36] Speaker 01:
There's no discretion there.

[00:19:38] Speaker 01:
And this type of search was within the scope of an inventory search.

[00:19:41] Speaker 01:
So it was looking through the car, including any closed containers that could be safely opened.

[00:19:48] Speaker 01:
It was consistent with that.

[00:19:49] Speaker 01:
And they did complete some paperwork, although, as the court noted, incompletely.

[00:19:54] Speaker 03:
Well, from early on, one of the officers indicated at least a partial investigatory motive.

[00:20:03] Speaker 03:
He said that it wasn't going to take him to just bond out, because I think he has something.

[00:20:09] Speaker 03:
I think there is something.

[00:20:11] Speaker 03:
I mean, how does that influence the review search here?

[00:20:17] Speaker 01:
I believe that that statement is in reference to the decision to arrest.

[00:20:21] Speaker 01:
And Wren tells us that a decision to arrest is valid as long as it's supported by a probable cause, regardless of whether or not there's some other subjective motive.

[00:20:31] Speaker 03:
Well, it's not just to arrest, because it's a house of cards.

[00:20:36] Speaker 03:
The arrest leads to the impoundment.

[00:20:38] Speaker 03:
The impoundment leads to the inventory source.

[00:20:41] Speaker 03:
So if you have a motive that is investigatory,

[00:20:46] Speaker 03:
It's relevant in every stage of that, isn't it?

[00:20:49] Speaker 01:
It can be.

[00:20:50] Speaker 01:
But also, the question is whether or not the investigatory motive is the sole motive for the impoundment and search under routine.

[00:20:57] Speaker 01:
And so we have Trujillo, which tells us when you have dual motives, that does not invalidate an otherwise reasonable impoundment and inventory search.

[00:21:04] Speaker 01:
And here, it's clear on the record that there were, at a minimum, dual motives.

[00:21:09] Speaker 01:
So as far as the stop, I know Mr. Ulubari has argued that it's protectual.

[00:21:15] Speaker 01:
But as soon as they come up to the car, they're talking about the muffler.

[00:21:17] Speaker 01:
There's no reason that the stop was protectual.

[00:21:20] Speaker 01:
They have the arrest warrants.

[00:21:21] Speaker 01:
They decide to arrest on those warrants.

[00:21:23] Speaker 01:
But at the same time, once they do that, there's really no other viable option with the car.

[00:21:29] Speaker 01:
They're left to impound the car.

[00:21:31] Speaker 04:
You have to call mom.

[00:21:33] Speaker 04:
Take a little more time and call mom.

[00:21:35] Speaker 04:
See how long it's going to take mom to get there and if she's got a valid driver's license.

[00:21:40] Speaker 01:
But then we still have the muffler problem that mom can't drive away the car with the loud muffler.

[00:21:44] Speaker 01:
So here... And the district court made that fine.

[00:21:47] Speaker 01:
Correct.

[00:21:47] Speaker 01:
Right.

[00:21:48] Speaker 01:
And so also under routine, we're looking at whether the choice the officers made were reasonable.

[00:21:55] Speaker 01:
Maybe it would have also been reasonable for the officers to wait around for some period of time.

[00:21:58] Speaker 01:
But the question is not whether or not there might have been

[00:22:01] Speaker 01:
any possible alternatives, just whether the choice that was made here was reasonable.

[00:22:05] Speaker 04:
Well, they also, under routine questions, whether they might have acted in bad faith or for the sole purpose of the investigation.

[00:22:12] Speaker 04:
And even if we say it was a mixed motive, is there evidence of bad faith here?

[00:22:17] Speaker 04:
I mean, to be able to justify not bothering to itemize $10,000 in cash and drugs found in a car seems that they were interested in something.

[00:22:30] Speaker 01:
Again, that post-temporally to the actual search.

[00:22:37] Speaker 01:
And here, there's evidence on the record, on the video cameras, that as they're impounding the car, they're telling him that we have to inventory it because that's required.

[00:22:46] Speaker 01:
And so it's a chain that once the impoundment is set in motion, they have no choice but to inventory.

[00:22:52] Speaker 01:
And the inventory search is going to uncover that evidence no matter what.

[00:22:58] Speaker 01:
So I don't think

[00:23:00] Speaker 01:
that there's any evidence in the record that the motive to see what something they might have is the sole motive for the search in this case.

[00:23:10] Speaker 01:
And that's what would be required to invalidate it under routine.

[00:23:17] Speaker 03:
In addition, looks like Judge Murphy has a question.

[00:23:19] Speaker 01:
Oh, I'm sorry.

[00:23:41] Speaker 02:
vehicle and for that reason were not inventory?

[00:23:46] Speaker 01:
No.

[00:23:46] Speaker 01:
The drugs were found in the backpack in the backseat of the car, which is actually where the cash was found as well.

[00:23:52] Speaker 01:
So the cash and the drugs were inside the car.

[00:23:55] Speaker 01:
The only comment I was making about the cash was that on the video it does indicate that they planned to count it under the cameras.

[00:24:01] Speaker 01:
I'm not sure if that's why it didn't end up on the inventory or not, but that is something that appears on the record that might explain it.

[00:24:09] Speaker 02:
But there's no similar evidence regarding the drugs.

[00:24:11] Speaker 01:
No, there's not.

[00:24:12] Speaker 01:
There's a mention of paraphernalia in the inventory report, but obviously that's general and not specific.

[00:24:17] Speaker 01:
And then the two firearms are listed in the inventory as well.

[00:24:22] Speaker 04:
The officers got lucky here that when they pulled him over, he happened to have his back tires in a different parking space or just over the parking space.

[00:24:32] Speaker 04:
Isn't that true?

[00:24:32] Speaker 04:
Had they not had that, would there have been a basis to impound the vehicle?

[00:24:36] Speaker 01:
I think there still would be.

[00:24:37] Speaker 01:
I think that's an additional factor that helps.

[00:24:40] Speaker 01:
Well, it would still be parked in a meter parking spot.

[00:24:43] Speaker 01:
And if he's arrested and kept for an indeterminate period of time, he can't just leave it in a meter parking spot in downtown Albuquerque.

[00:24:49] Speaker 04:
So it would be still similar to Albuquerque.

[00:24:50] Speaker 01:
Right.

[00:24:51] Speaker 01:
And then we still have the same factors of the firearm and the mom not being there and the muffler.

[00:24:55] Speaker 01:
So all of that still goes into play.

[00:24:57] Speaker 03:
When do they have an obligation to call?

[00:25:00] Speaker 03:
When you're saying, hey, call my mom.

[00:25:02] Speaker 03:
Come get it.

[00:25:03] Speaker 03:
When, if ever, do the officers have an obligation to make an effort?

[00:25:07] Speaker 03:
Because we certainly have case law.

[00:25:08] Speaker 03:
that talks about making it right.

[00:25:11] Speaker 01:
I think all of those case law that I can think of where they're required to make that effort, first the vehicles on private property.

[00:25:17] Speaker 01:
So there's nothing to say that it can't just be left there for some period of time while things are worked out with mom.

[00:25:21] Speaker 01:
Officers aren't going to be required to just stick around on the scene.

[00:25:24] Speaker 01:
So we have Ramos.

[00:25:26] Speaker 01:
I think Sanders was another case or Woodard where there could have been some efforts made to contact

[00:25:34] Speaker 01:
But in none of those cases were we on public property.

[00:25:36] Speaker 01:
And again, we have the gun issue here, which I think distinguishes it.

[00:25:40] Speaker 01:
And it both helps justify the impoundment under Opperman, but it also is a standalone reason for the search under Dombrowski.

[00:25:46] Speaker 03:
Well, but the gun to me seems irrelevant whether his mother can come pick up the car.

[00:25:52] Speaker 03:
I mean, the gun is a problem if you leave the car on a public street where any random person could come and get the gun.

[00:26:02] Speaker 03:
But if mom's going to come take the gun home and put it in the gun safe at home, why is that an issue?

[00:26:09] Speaker 01:
As long as mom is able to possess the gun, there's no barrier.

[00:26:12] Speaker 01:
That wouldn't be a problem.

[00:26:13] Speaker 01:
But here, the gun is really the problem, because the alternative is to leave it here.

[00:26:17] Speaker 03:
I mean, unless mom's a felon.

[00:26:19] Speaker 01:
Right.

[00:26:20] Speaker 01:
Right.

[00:26:20] Speaker 01:
And we don't have.

[00:26:21] Speaker 03:
She pretty much could take the gun.

[00:26:23] Speaker 01:
Correct.

[00:26:24] Speaker 01:
Correct.

[00:26:25] Speaker 01:
I think the gun is really the problem with leaving it here in a high crime area.

[00:26:28] Speaker 01:
Not only is there a firearm, but there's a visible bullet strewn in the back seat.

[00:26:31] Speaker 01:
those have been visible to any passerby, and that presents a direct threat to public safety as this, or as Dabrowski recognized.

[00:26:39] Speaker 01:
And then if you leave it there.

[00:26:40] Speaker 01:
If you leave it there, correct.

[00:26:42] Speaker 01:
But here, I think this is very distinguishable in that there's no, I mean, mom is not there on the scene.

[00:26:47] Speaker 01:
That would be a different case.

[00:26:49] Speaker 01:
I'm sorry, I see that I'm out of time.

[00:26:51] Speaker 01:
If there's no further questions.

[00:26:53] Speaker 03:
Judge Murphy.

[00:26:56] Speaker 01:
I have no questions.

[00:26:58] Speaker 01:
Okay.

[00:26:58] Speaker 01:
Thank you.

[00:26:58] Speaker 01:
Thank you.

[00:26:59] Speaker 01:
I'll ask the court to affirm.

[00:27:01] Speaker 00:
Unless there are any further questions, I will rest on the briefs.

[00:27:05] Speaker 00:
Thank you.

[00:27:05] Speaker 00:
Thank you.

[00:27:07] Speaker 03:
Then we will take this matter under advisement.

[00:27:09] Speaker 03:
Thank you for your argument today.