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Date: 08-10-2021
Case Style:
United States of America v. TEVAN JAMON WOODARD
Case Number: 20-5004
Judge: Robert E. Bacharach
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Plaintiff's Attorney: Victor A.S. Régal, Assistant United States Attorney, Office of the United
States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma (R.
Trent Shores, United States Attorney, with him on the brief).
Defendant's Attorney:
Description:
Denver, CO - Criminal defense lawyer represented defendant with (1) possessing cocaine and marijuana with intent to distribute these drugs, (2) possessing a firearm and ammunition after a felony conviction, and (3) possessing a firearm in furtherance of a drug crime charges.
Whatever the reason for the stop, the police sometimes need to
arrest the driver. When the driver is arrested, the police must decide what
to do with the car. Leaving the car where it is might sometimes lead to its
vandalism or theft. South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
So impoundment may sometimes be necessary for public safety. Id. at 368.
But when a car is impounded, the police must account for the contents.
United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003). So we
typically allow the police to determine what’s inside the car before it’s
impounded. Opperman, 428 U.S. at 372–74.
But the authority to impound a car is susceptible to abuse. Florida v.
Wells, 495 U.S. 1, 5 (1990) (Brennan, J., concurring). For example, the
police might impound a car as a pretext to search for evidence of a crime.
When the police use pretext to impound the car, the Fourth Amendment
typically prohibits introduction of the evidence obtained from the search.
United States v. Sanders, 796 F.3d 1241, 1251 (10th Cir. 2015).
Today’s case involves a pretextual search, where the police
impounded a car simply as an excuse to look inside for evidence of a
crime.
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1. The police look for Mr. Woodard to serve a protective order and
execute a warrant for a misdemeanor.
The appeal stems from the denial of a motion to suppress evidence
found in the car, and the search itself stemmed from a call complaining to
the police about Mr. Evan Jamon Woodard. The caller said that Mr.
Woodard was fighting a huge drug case, may have smoked PCP, had three
previous gun cases, and violated a protective order. After talking to the
caller, the police discovered that Mr. Woodard had an outstanding warrant
for misdemeanor public intoxication. With this information, the police
looked for Mr. Woodard, planning to serve him with the protective order
and execute the warrant.
2. The police stop Mr. Woodard’s car in front of a Tulsa store,
decide to impound the car, and find evidence of drug-and-gun
crimes.
Police officers found Mr. Woodard in Tulsa, Oklahoma, at about
8:00 a.m. and initiated a traffic stop. Mr. Woodard pulled into a parking
lot at a QuikTrip convenience store and stopped there. The police told Mr.
Woodard to get out of the car, arrested him based on the warrant, and took
his cellphone. Mr. Woodard then asked if he could call someone to pick up
the car. One of the police officers responded “I don’t think so,” and the
police decided to impound the car. Defendant’s Mot. to Suppress Exh. 3
(body camera).
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Two officers then opened the front doors and began to search the
car. One officer looked in the panel on the driver’s side door and on the
floor under the driver’s seat, saying that Mr. Woodard was “fighting a
huge drug case.” Defendant’s Mot. to Suppress, Exh. 4 (body camera). The
other officer replied that Mr. Woodard liked PCP. As the officer replied,
he opened the center console.
One officer commented that he was looking for verification of car
insurance, expressing doubt that Mr. Woodard had insured the car. After
seeing no verification in the center console, he eventually found proof of
an old insurance policy in the glove compartment. By then, however,
another officer had found marijuana, cocaine, a digital scale, and a gun.
With that evidence, the police obtained a warrant allowing access to
text messages on Mr. Woodard’s cellphone. Those text messages provided
evidence of drug dealing.
3. The evidence of drug dealing leads to criminal charges, including
possession with an intent to distribute the drugs found during an
earlier traffic stop.
As the police officers investigated, they discovered an earlier traffic
stop of Mr. Woodard in Bartlesville, Oklahoma. In that stop, the police
had found cocaine, marijuana, heroin, a firearm, and ammunition.
With the benefit of the messages found on the cellphone, the
government charged Mr. Woodard with crimes growing out of both traffic
stops. Based on the Tulsa stop, Mr. Woodard was charged with (1)
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possessing cocaine and marijuana with intent to distribute these drugs, (2)
possessing a firearm and ammunition after a felony conviction, and (3)
possessing a firearm in furtherance of a drug crime. Based on the
Bartlesville stop, Mr. Woodard was charged with possessing cocaine,
marijuana, and heroin with intent to distribute.
In district court, Mr. Woodard moved to suppress evidence found
during the Tulsa stop, including the drugs, the gun, his cellphone, and a
digital scale. In moving for suppression, he argued that
• the Tulsa Police Department’s policy had not authorized
impoundment of his car and
• the police officers had ordered impoundment as a pretext to
investigate suspected crimes.
The district court denied Mr. Woodard’s motion to suppress. He was then
tried and convicted on all charges.
4. The police invoke Tulsa’s impoundment policy as a pretext to
search the car.
The police had authority to stop the car in order to serve Mr.
Woodard with the protective order and execute the warrant for public
intoxication. Once Mr. Woodard pulled in front of the QuikTrip store,
however, the police had to decide what to do with the car. They could
Appellate Case: 20-5004 Document: 010110553052 Date Filed: 07/26/2021 Page: 5
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leave the car there, impound it, or let Mr. Woodard call someone to pick it
up. Among these options, the police chose impoundment.
The Fourth Amendment imposes “heightened requirements on police
who seize vehicles from private property.” United States v. Sanders, 796
F.3d 1241, 1249 (10th Cir. 2015). 1 These heightened requirements allow
impoundments from private property, like the impoundment of Mr.
Woodard’s car, only when (1) the car is blocking traffic, (2) the car is
posing an imminent threat to public safety, or (3) the impoundment is
justified by a standardized policy and a reasonable, non-pretextual
rationale of community caretaking. Id. at 1248.
Applying the third basis for impoundment, the district court
concluded that the officers had relied on a standardized policy and a
reasonable, non-pretextual rationale of community caretaking.
A. The police department’s standardized policy does not
authorize impoundment of the car.
Though police officers can perform community-caretaking functions,
they have no “open-ended license” to impound cars from “anywhere.”
1 Mr. Woodard characterizes the parking lot as private property, rather
than a public way, and the government does not disagree with this
characterization. See Robinson v. City of Bartlesville Bd. of Educ., 700
P.2d 1013, 1015 (Okla. 1985) (stating that a “school parking lot is not a
public way” because a “‘way’ is defined as ‘[a] passage, path, road or
street’” (footnote omitted)).
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Caniglia v. Strom, 141 S. Ct. 1596, 1600 (2021). 2 To constrain the
officers’ discretion, the Tulsa Police Department adopted a standardized
impoundment policy.
The government concedes that this policy
• generally restricts impoundment to removal of vehicles from a
public way and
• creates a limited exception, allowing impoundment from
private property when the traffic stop follows an offense
committed on a public way.
R. vol. 2, at 55–56; Government’s Resp. Br. at 16. For the sake of
argument, we may assume that the government has correctly interpreted
the policy.
Mr. Woodard argues that the policy did not authorize impoundment
of his car because he had not committed an offense on a public way. We
agree. 3
2 The Supreme Court recently stated in Caniglia v. Strom that
caretaking duties do not “create[] a standalone doctrine” justifying
warrantless searches of a home. 141 S. Ct. 1596, 1598 (2021). In United
States v. Sanders, 796 F.3d 1241 (10th Cir. 2015), we arguably recognized
a stand-alone doctrine authorizing impoundments on private property that
would otherwise have been impermissible. See United States v. Trujillo,
993 F.3d 859, 871 (10th Cir. 2021) (stating that “Sanders was not
considering an impoundment authorized by Opperman”). Interpreted this
way, Sanders could conceivably run afoul of Caniglia. But none of the
parties has questioned the continued viability of Sanders.
3 Mr. Woodard also argues that the impoundment policy did not apply
because the vehicle wasn’t highly susceptible to damage or vandalism. We
need not consider this argument.
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The police stopped Mr. Woodard to serve a protective order and
execute an arrest warrant for public intoxication. The protective order and
warrant were pieces of paper, not offenses. The only offense was public
intoxication, and the intoxication did not take place on a public way.
The government contends that Mr. Woodard was stopped for a
continuing offense: failing to pay costs for his charge of public
intoxication. But failing to pay court costs is not a continuing offense. See
United States v. Sullivan, 255 F.3d 1256, 1263 (10th Cir. 2001) (failure to
file a tax return is not a continuing offense); United States v. Morrison,
938 F.2d 168, 170 (10th Cir. 1991) (the offenses of failing to pay taxes
occurred on the dates of the filing deadlines). And even if the offense had
been continuing, the failure to pay costs would have occurred where the
payment was to be made or received, not on a public way. See United
States v. Crawford, 115 F.3d 1397, 1406 (8th Cir. 1997). 4
4 In Crawford, the court stated:
[I]f the crime of failing to pay child support obligations occurs
anywhere, it is fair to say that it occurs where there is an
absence of the required payment. Thus, the crime occurs not
only at the place where the payment was to be deposited, but
also the place where it was ultimately to be received by the
would-be intended recipient.
Crawford, 115 F.3d at 1406.
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The government also contends that the Tulsa policy applied because
the police had initiated the stop on a public way. But the policy authorizes
impoundment “when the offense the vehicle was initially stopped for
occurred on a public way,” not when the stop itself occurred on a public
way. Supp. R., Exh. 6 at p. 1 of 5 (emphasis added). The term “offense”
typically refers to “a violation of the law; a crime, often a minor one.”
United States v. Collins, 859 F.3d 1207, 1212 (10th Cir. 2017) (quoting
Black’s Law Dictionary (10th ed. 2014)). The stop of Mr. Woodard was
not an offense. Because no offense took place on a public way, the policy
did not allow impoundment.
The dissent concludes that the impoundment policy allowed the
police to impound a car from anywhere to prevent a traffic hazard or
vandalism. Dissent at 2–5. Under the dissent’s view, the policy authorizes
impoundment even if no offense had occurred on a public way and no stop
has been initiated there. This interpretation conflicts with the policy
language and deviates from the views of the parties.
The policy statement unambiguously limits impoundment to removal
of vehicles from a public way:
POLICY:
Officers will impound vehicles only when necessary. Officers
are authorized to move or cause to be removed any vehicle from
a street, highway, shoulder, or other public way to the nearest
garage designated or maintained by the City of Tulsa that meets
the criteria for vehicle impoundment. State statute prohibits
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officers from using the insurance database as the primary reason
for a traffic stop. Officers shall use discretion when impounding
vehicles based on the lack of compulsory insurance.
Supp. R., Exh. 6 at p. 1 of 5. The dissent does not mention this provision
even though it constitutes the entirety of the policy statement for
impoundment of vehicles. Id.
Indeed, the policy defines “vehicle impoundment” by reference to a
“public way”:
VEHICLE IMPOUNDMENT - to remove or cause to be removed
a vehicle from a street, highway, shoulder, or other public way
by an officer, and stored in a designated facility contracted by
the City of Tulsa.
Id.
The dissent ignores both the policy statement and the definition of
“vehicle impoundment,” focusing instead on a separate section under the
heading “Procedures”:
PROCEDURES:
1. Officers may impound vehicles in the following
situations:
. . .
b. [Sentence 1] A vehicle has been abandoned or the
driver was arrested and the vehicle is left unattended in a
location that would constitute a traffic hazard or is highly
susceptible to damage or vandalism. [Sentence 2] This
includes private property open to the public when the
offense the vehicle was initially stopped for occurred on a
public way.
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Id. As part of the broader policy, the first sentence proceeds from the
general rule that the vehicle must be on a public way. So a car on a public
way may be impounded if (1) it was abandoned or the driver was arrested
and (2) a traffic hazard would otherwise exist or the car would be highly
susceptible to damage or vandalism. The second sentence adds that a
vehicle left on private property may be impounded if the traffic stop had
been based on an offense occurring on a public way.
The dissent focuses solely on the first sentence (without reference to
the policy statement), arguing that whenever a driver is arrested, the
police can impound the vehicle even in the absence of any connection to a
public way. Neither party has interpreted the policy to allow impoundment
of vehicles despite the absence of any connection to a public way.
Indeed, the dissent acknowledges that its interpretation of the policy
differs from the government’s. See Dissent at 3. Unlike the dissent, the
government recognizes the policy’s restriction to offenses committed on a
public way. The government thus characterized the arrest warrant and the
failure to pay costs as “offenses on public ways” to justify the
impoundment of a car parked on private property. Appellee’s Resp. Br at
16–18. At oral argument, the government’s counsel even referred to the
restriction to a public way as “the jurisdictional hook” for applying the
policy. Oral Argument at 18:00–18:12.
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In departing from the views of the parties, the dissent sheds the
“heightened requirements” applicable when officers seize vehicles on
private property. United States v. Sanders, 796 F.3d 1241, 1249 (10th Cir.
2015); see p. 6, above. Indeed, the dissent’s view would broadly allow
impoundment from private property even when a car has never even
entered a public way. 5
The dissent observes that this Court “may affirm on any basis that
the record adequately supports.” Dissent at 3 (quoting High Desert Relief,
Inc. v. United States, 917 F.3d 1170, 1181 (10th Cir. 2019)). But not at
the expense of the doctrine of party presentation, long considered a
fundamental premise of our adversary system. See United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). Based on this doctrine, we
count “on the parties to frame the issues” so that courts can serve “the
role of neutral arbiter of matters the parties present.” Id (quoting
Greenlaw v. United States, 554 U.S. 237, 243 (2008)).
Given our role as arbiter of the parties’ arguments, we don’t
typically “craft[] arguments for affirmance completely sua sponte and,
5 This approach not only deviates from the policy language but also
fails to provide the “standardized criteria” required under our precedent.
See United States v. Venezia, 995 F.3d 1170, 1176 (10th Cir. 2021) (“The
standardized criteria prong ‘ensures that police discretion to impound
vehicles is cabined rather than uncontrolled.’” (quoting Sanders, 796 F.3d
at 1249).
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more specifically, without the benefit of the parties’ adversarial
exchange.” United States v. Chavez, 976 F.3d 1178, 1203 n.17 (10th Cir.
2020). In the best of circumstances, we consider it “imprudent” to craft
arguments sua sponte to affirm on alternate grounds. Id. Here, though, the
dissent would go even further and affirm based on an interpretation that
the government has disavowed.
We should instead follow the policy language and the framing of
issues by the parties. The government bore the burden to justify the
search, United States v. Sanders, 796 F.3d 1241, 1244 (10th Cir. 2015),
and failed to satisfy this burden by showing the commission of an offense
on a public way. We thus conclude that the Tulsa policy did not authorize
impoundment of the car.
B. The police use the policy as a pretext to impound the car
and search for evidence of a crime.
Even if the policy had allowed impoundment from the QuikTrip
parking lot, the police could not impound the car as a pretext to search for
evidence of a crime. Sanders, 796 F.3d at 1248.
The district court concluded that the police had not engaged in a
pretextual impoundment and search. In analyzing this conclusion, we
review the district court’s factual findings for clear error and view the
evidence in the light most favorable to the government. United States v.
Venezia, 995 F.3d 1170, 1175 (10th Cir. 2021).
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The relevant facts are not in dispute in this case. So we apply each
of the pretext factors and weigh them de novo. Id. at 1178.
1. We consider five factors bearing on pretext.
An impoundment is pretextual when the police are seeking evidence
of a criminal violation rather than acting to safeguard the car or its
contents to promote public safety or convenience. See United States v.
Sanders, 796 F.3d 1241, 1251 (10th Cir. 2015); see also United States v.
Taylor, 592 F.3d 1104, 1108 (10th Cir. 2010) (stating that officers must
not impound a car “in bad faith or for the sole purpose of investigation”)
(internal quotation marks omitted). We have identified five factors bearing
on the possibility of pretext:
1. Whether the car is on private or public property
2. Whether the property owner has been consulted
3. Whether an alternative to impoundment exists (especially the
availability of someone else to drive the car)
4. Whether the car is implicated in a crime
5. Whether the driver or owner has consented to the
impoundment
Sanders, 796 F.3d at 1250.
In reviewing these factors de novo, we conclude that every factor
points to pretext.
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a. The car was on private property.
First, the car was on private property, where “[p]ublic safety and
convenience are less likely to be at risk.” United States v. Venezia, 995
F.3d 1170, 1178 (10th Cir. 2021). So the first factor points to pretext.
b. The officers did not consult the property owner.
Second, the officers did not consult the QuikTrip employees to see if
they wanted the car impounded. R. vol. 1, at 32 (Government’s Resp. to
Defendant’s Mot. to Suppress) (conceding that “[Tulsa Police Department]
officers did not consult QuikTrip before making the decision to
impound”).
A corporate representative later expressed a preference for the
police to remove abandoned cars from QuikTrip parking lots. But there
was no evidence that any of the police officers had known of QuikTrip’s
preference.
For the officers, QuickTrip’s preference didn’t matter. The senior
officer explained the reason for impoundment: “[W]e tow on the instance
where we believe it’s a high crime area.” R. vol. 2, at 47. He did not
mention QuikTrip’s preference. So the second factor also points toward
pretext. See United States v. Venezia, 995 F.3d 1170, 1179 (10th Cir.
2021) (reasoning that “the officers could not have impounded [the] vehicle
based on the motel owner’s objection, because the officers failed to even
consult the motel owner, or anyone who could speak for the owner”);
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United States v. Sanders, 796 F.3d 1241, 1251 (10th Cir. 2015) (noting
that this factor points to pretext because “there is no evidence in the
record that the police consulted the owners of the parking lot about the
vehicle remaining where it was”).
The dissent disagrees, concluding that this factor favors the
government. The dissent relies on testimony that QuikTrip’s corporate
office preferred removal of abandoned vehicles, concluding that a
factfinder could reasonably assume that the officers had inferred
QuikTrip’s preference. But this reasoning deviates from Sanders. There
we said that courts should consider whether the officers had consulted the
property owner and learned of the property owner’s preference, not
whether the officers had correctly inferred the property owner’s
preference. Sanders, 796 F.3d at 1251.
c. The police could have let Mr. Woodard call someone to
move the car.
Third, the police had an alternative to impoundment: letting Mr.
Woodard call someone to get the car. He had asked, and the police
refused. See Part 2, above. Given the unexplained refusal of Mr.
Woodard’s request, the third factor also points to pretext.
The dissent concludes that this factor favors the government because
the police were concerned with the lack of current insurance, uncertainty
over who owned the car, and Mr. Woodard’s lack of a current driver’s
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license. But the police didn’t decide to impound the car for any of these
reasons.
i. The police didn’t impound the car based on concern over
insurance.
The dissent states that the car was uninsured, relying on the
presence of an old insurance card in the car. Dissent at 8–9. But the police
never asked Mr. Woodard for his car insurance, and the presence of an old
insurance card does not bear on the existence of a current policy. So the
record does not show whether the car was insured.
Regardless of whether the car was insured, the police found the old
insurance card after they had already decided to impound the car. When
they decided to impound, they hadn’t even asked Mr. Woodard if the car
was insured. So the eventual discovery of an old insurance card doesn’t
bear on why the officers decided to impound the car.
ii. The police didn’t impound the car based on concern over
ownership.
The dissent also argues that Mr. Woodard denied ownership of the
car. Dissent at 8–9. But the government never argued that the police had
impounded the car even in part because of questions about the car’s
ownership. Nor did the district court rely on a concern as to ownership.
In relying for the first time on doubt as to ownership, the dissent
points out that when asked who owned the car, Mr. Woodard said: “Say
what now, sir?” But by that time, the senior officer had already announced
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his intent to search the car and “friggin’ light [Mr. Woodard] up with
whatever we can.” Mot. to Suppress, Exh. 4 (body camera); see p. 22,
below.
iii. The police didn’t impound based on Mr. Woodard’s lack of
a driver’s license.
The dissent points out that Mr. Woodard admitted that he had no
driver’s license. Dissent at 8. But he was not asking for an opportunity to
drive the car away himself; he was asking for an opportunity to have
someone else move the car from the parking lot.
iv. The dissent’s denial of a “duty” is irrelevant to the third
pretext factor.
The dissent argues that “a long line of cases” states that the police
have no duty to let an arrestee call someone to move a car. Dissent at 9–
10. For this “long line of cases,” the dissent cites one published opinion
of ours and two unpublished opinions:
• United States v. Trujillo, 993 F.3d 859, 870 (10th Cir. 2021);
• United States v. Walker, 81 F. App’x 294, 297 (10th Cir. 2003)
(unpublished); and
• United States v. Moraga, 76 F. App’x 223, 227–28 (10th Cir.
2003) (unpublished).
Dissent at 9.
We express no opinion on whether the police have a duty to let
someone else pick up a car when the driver is arrested. Neither the parties
nor the district court has addressed the possibility of such a duty, and for
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good reason: It has nothing to do with the third pretext factor, which
addresses the existence of alternatives to impoundment. Regardless of
whether the police have a duty to let someone else pick up or move a car,
the police either have alternatives or they don’t.
The dissent’s cited authorities illustrate their irrelevance, for none
even purport to address the third pretext factor (the existence of
alternatives to impoundment).
For example, in Trujillo, we never applied any of the pretext factors.
There a car was impeding traffic at 2:30 a.m., which we noted “was not a
good time of day to look for help from friends.” United States v. Trujillo,
993 F.3d 859, 869–70 (10th Cir. 2021). We concluded that the
impoundment was reasonable without the need to consider any of the
pretext factors. Id. So Trujillo does not bear on the existence of
alternatives to impoundment.
The dissent also points to two unpublished opinions from 2003,
decided over a decade before Sanders: United States v. Walker, 81 F.
App’x 294, 297 (10th Cir. 2003) (unpublished), and United States v.
Moraga, 76 F. App’x 223, 227–28 (10th Cir. 2003) (unpublished). Not
surprisingly, these unpublished opinions did not address any of the five
pretext factors adopted over a decade later.
The dissent also relies on three out-of-circuit opinions:
• United States v. Agofsky, 20 F.3d 866 (8th Cir. 1994)
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• United States v. Cherry, 436 F.3d 769 (7th Cir. 2006)
• United States v. Jackson, 682 F.3d 448 (6th Cir. 2012).
Dissent at 9–10. Nowhere in these opinions is there any mention of a
pretext factor involving alternatives to impoundment.
Do the police have a duty to allow an arrestee to contact someone
else to pick up or move the car from property? The parties haven’t raised
this question, and it has nothing to do with the third pretext factor. That
factor is whether alternatives exist to impoundment. After thorough
briefing, oral argument, and a dissent, we have no idea why the police
would have rejected Mr. Woodard’s request—out-of-hand—to contact
someone else to pick up or move the car.
It might have been different if Mr. Woodard were insisting on an
opportunity to drive the car away himself. He admittedly didn’t have a
current driver’s license. But he didn’t ask to drive the car home; he simply
wanted to ask someone else to come pick up the car. See Part 2, above.
The police refused out-of-hand, but why? The car was in a highcrime area? It wouldn’t be for long if the police had let Mr. Woodard ask
someone to pick up the car. And at roughly 8:00 in the morning, there was
nothing to suggest an imminent risk of vandalism. See United States v.
Venezia, 995 F.3d 1170, 1174, 1180 (10th Cir. 2021) (“[E]ven though the
motel parking lot was in a ‘high-crime area,’ the risk of theft or vandalism
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was not so imminent as to foreclose alternatives to impoundment” when
the arrested driver had no driver’s license, registration, title or insurance.)
Though the officers didn’t consider letting someone pick up the car,
the dissent argues that “[l]eaving the car in the lot indefinitely was not a
reasonable alternative.” Dissent at 10. But the officers decided to impound
the car without asking about ownership or insurance. So the officers had
no reason to question Mr. Woodard’s ability to get someone to drive the
car away.
As the dissent says, the officers need not “take every measure
possible” to avoid a finding that an impoundment is a pretext for a
criminal investigation. Dissent at 13. 6 But here, the officers’ failure to
consider reasonable alternatives shows the actual motive for the
impoundment: The police wanted an excuse to search the car.
d. The car was not impounded as evidence of a crime.
Fourth, the government concedes that the car was not implicated in a
crime. So the police had no need to preserve evidence by impounding the
car. See United States v. Venezia, 995 F.3d 1170, 1182 (10th Cir. 2021)
(concluding that “the fourth [pretext] factor weighs against impoundment
6 In the dissent’s view, we are suggesting that the police had a duty to
ask Mr. Woodard if the car was insured. Dissent at 12. Not so. We’re just
saying that without asking about insurance or ownership before deciding
to impound the car, the police could not rely on those concerns to justify a
decision that they had already made.
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because impounding [the] vehicle would not have provided further
evidence of the traffic violations or the outstanding warrant for which [the
defendant] was arrested”). 7 So the fourth pretext factor also points to
pretext.
e. No consent existed for the impoundment.
Fifth, Mr. Woodard did not consent to impoundment, which again
points to pretext.
The dissent suggests that consent does not matter here because Mr.
Woodard did not own the car. Dissent at 11 n.1. But when the police
decided to impound the car, they hadn’t even asked about ownership.
2. The police officers’ comments and actions show pretext.
Not only does every factor point toward pretext, but other powerful
evidence of pretext exists. Before searching the car, the police officers
discussed how to proceed and the senior officer declared his intent to
“friggin’ light [Mr. Woodard] up with whatever we can.” Mot. to
Suppress, Exh. 4 (body camera); see p. 18, above.
At oral argument, the government surmised that the officer might
have meant only that he wanted to cite Mr. Woodard for whatever
violations could be proven at the time of the decision to impound the car.
7 The city’s policy allows impoundment of a vehicle that constitutes
evidence of a crime. Supp. R., Exh. 6 at p. 1 of 5. The government hasn’t
invoked this provision to justify the impoundment.
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Oral Argument at 23:38–23:54. This explanation is new and illogical. The
explanation is new because the government never suggested in district
court that this is what the officer had meant. The explanation is also
illogical. The command to “light [Mr. Woodard] up with whatever we can”
shows that the officer wanted to look for new evidence. The phrase cannot
plausibly be interpreted to mean that the officer wanted only to bolster the
public intoxication charge and serve the protective order.
Other statements also point toward pretext. As the police started the
search, one officer said that Mr. Woodard was fighting a big drug case and
facing three gun charges. See Part 2, above. The other officer said that Mr.
Woodard liked PCP, adding that he had been “digging around” the center
console area, and the officer began his search there. Defendant’s Mot. to
Suppress, Exh. 4 (body camera), Exh. 5 (body camera); see Part 2, above.
These statements and actions showed the officers’ intent to look for drugs,
not to safeguard the car and its contents.
The officers’ discussion of car insurance also shows pretext. The
senior officer repeatedly said that he was looking for proof of car
insurance. Defendant’s Mot. to Suppress, Exh. 5 (body camera); see Part
2, above. The availability of current insurance could affect the officers’
decision of what to do with the car. But the officers weren’t allowed to
look for proof of insurance in order to decide whether to impound the car.
They could conduct the search to identify the contents only after deciding
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to impound the car. See United States v. Edwards, 632 F.3d 633, 644 (10th
Cir. 2001) (stating that “the decision to impound the car was not made
until after the search revealed incriminating evidence against [the
defendant], which makes it exceedingly difficult to believe that this was
an inventory search conducted to protect the police from liability after the
decision was made to impound the car”).
The officers eventually found a card showing that Farmers Insurance
had insured the car a few years earlier. Defendant’s Mot. to Suppress,
Exh. 5 (body camera) at 9:42–9:57. But the officers didn’t ask Mr.
Woodard for an updated card or contact Farmers Insurance. The senior
officer instead continued to search the entire car for an updated insurance
card despite expressing doubt that it even existed. See Part 2, above.
By looking for a non-existent insurance card, of course, the senior
officer would be able to search the entire car. The stated effort to look for
the elusive proof of updated insurance—without asking Mr. Woodard or
checking an available database—bears only one plausible explanation: The
senior officer was searching the car to find evidence of a crime rather than
to safeguard the car and its contents.
* * *
Because the Tulsa Police Department’s standardized policy did not
apply and the stated rationale for impoundment was pretextual, the district
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court erred in denying the motion to suppress evidence of the drugs,
digital scale, gun, and cellphone found in the Tulsa search. 8
5. The error requires reversal of all the counts.
Three of the counts involved the Bartlesville search that had
preceded the Tulsa search. In the Bartlesville search, the police found
cocaine, marijuana, and heroin. The presence of these drugs could have
supported a conviction for drug possession. But the government didn’t
charge Mr. Woodard just with possessing these drugs; they charged him
with possessing these drugs with an intent to distribute them.
On these charges, the government needed to prove not only
possession but also an intent to distribute. United States v. Woodard, No.
4:18-cr-00209-GKF-1 (N.D. Okla. 2019), ECF No. 96, Instruction Nos. 21,
26. How could the government prove intent? The drugs themselves could
have been intended for Mr. Woodard’s own use rather than for
distribution. The government overcame that hurdle by using the text
messages on Mr. Woodard’s cellphone, which the police had retrieved in
the Tulsa search. Those text messages suggested drug dealing. But the
8 The government argues that the district court shouldn’t suppress the
evidence if the police impounded the vehicle for dual motives, one proper
(to comply with the standardized policy) and one improper (to investigate
for criminality). But here, the police lacked a proper motive because the
standardized policy did not apply. So the police did not harbor dual
motives, and we need not address what the outcome would have been if
they had.
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government learned of these text messages only by seizing the cellphone
and obtaining a warrant to search it based on the evidence discovered in
the Tulsa search.
Given the government’s reliance on the text messages, Mr. Woodard
urges reversal of the Bartlesville counts as well as the Tulsa counts. In
oral argument, the government argued for the first time that the district
court’s error was harmless as to the Bartlesville counts. Oral Argument at
32:18–33:10. But the government didn’t argue harmlessness in its
response brief, and oral argument was too late. See United States v.
Gaines, 918 F.3d 793, 800–01 (10th Cir. 2019) (“We typically decline to
consider an appellee’s contentions raised for the first time in oral
argument.”); see also Adamschek v. Am. Family Mut. Ins. Co., 818 F.3d
576, 588 (10th Cir. 2016) (rejecting an appellee’s contention to affirm on
an alternative ground because the contention was raised for the first time
at oral argument).
Even if we were to consider the government’s new argument, we
would reject it. The government would have the burden of proving
harmlessness beyond a reasonable doubt. United States v. Mikolon, 719
F.3d 1184, 1188 (10th Cir. 2013).
In the Bartlesville search, the drug quantities were small enough that
Mr. Woodard could have intended to use them rather than to distribute
them. These quantities were
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• 2.04 grams of heroin,
• 34.25 grams of marijuana, and
• 11.98 grams of cocaine.
2d Supp. R., vol. 2 at 137. One police officer acknowledged the
possibility that these quantities could have been intended for Mr.
Woodard’s use rather than distribution. Id. at 137–39. To counter that
possibility and show an intent to distribute, the government relied on the
text messages. 9 Those text messages surfaced only because of the evidence
9 In closing argument, the prosecutor stated:
I want to talk to you about the amount of drugs that were
found. Now, you didn’t hear the judge instruct you, and when
you look at the instructions again you’re going to find that
there’s nothing in there about amount of drugs, all right?
Determining whether somebody had the intent to distribute has
nothing to do with math. It has nothing to do with a certain
number, whether it’s five, ten, fifteen grams. It has nothing to
do with that. It has only to do with a particular state of mind.
What do you intend to do with the drugs you have, however
much it is you have?
Well, we can’t read someone’s mind but we can do the
next best thing, which is that we can read their text messages.
Mere users of drugs are not going to have text messages like
this, Government’s Exhibit 16, which says on the left-hand side
of the screen, “Hey bro you think I can get a full oz of that exact
s**t you brought me?”
Mr. Woodard says, “Yes sir.”
“$11350?”
“Yes.”
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discovered in the Tulsa search.
Outcome: Given these circumstances, we reverse the
convictions on the Bartlesville counts as well as the Tulsa counts.
Plaintiff's Experts:
Defendant's Experts:
Comments: