Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3 AN-10-1918 CR.
Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Pamela D. Weiss, Assistant Municipal Attorney, and William D. Falsey, Municipal Attorney, appearing at the request of the Court for the Municipality of Anchorage.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
A provision of the Anchorage Municipal Code -- section 09.28.026 -- gives police officers the authority, at their discretion, and without a court order, to impound the motor vehicle of any person who is arrested for, or charged with, any of the following six offenses: (1) soliciting for prostitution, (2) driving while under the influence, (3) refusing to submit to a breath test, (4) driving with a suspended or revoked license, (5) driving without having vehicle insurance, or (6) driving while not carrying proof of vehicle insurance in one's immediate possession.
The defendant in this case was arrested by the Anchorage police for driving under the influence. The defendant wanted to call his father to come retrieve the car, or to have his passenger take custody of the car, but the arresting officer told the defendant that this would not be allowed -- that the police were required to seize and impound the vehicle under the municipal ordinance.
The question presented in this appeal is whether the seizure of the defendant's vehicle was illegal under either the Fourth Amendment to the United States Constitution or Article I, Section 14 of the Alaska Constitution.
The State argues (and the superior court found) that seizures of vehicles pursuant to AMC 09.28.026 are justified under the " community caretaker" function. This legal doctrine refers to the authority of the police (or other government agents) to seize and remove vehicles from the streets when they impede traffic or otherwise threaten public safety or convenience.
But as we explain in this opinion, the seizure and impoundment authorized by AMC 09.28.026 is not aimed at, nor is it limited to, vehicles that might be impounded under a " community caretaker" rationale. Under this ordinance, it is irrelevant whether the impounded vehicle was impeding traffic or posed any other threat to public safety or convenience, or whether the vehicle or its contents were at risk of theft or vandalism. Rather, the impoundment authorized by AMC 09.28.026 hinges on whether there is probable cause to believe that the driver committed one of the six specified crimes.
We therefore reverse the superior court's ruling on this issue, and we remand this case to the superior court for consideration of whether the vehicle seizure in this case might be lawful under some other rationale.
In the early morning hours of February 20, 2010, an Anchorage police officer observed a car being driven erratically on C Street, so the officer initiated a traffic stop. The driver pulled into a parking lot, and the officer followed him.
During this traffic stop in the parking lot, the officer observed that the driver of the car, Malik Ahmad Taha, appeared to be intoxicated. Taha performed poorly on field sobriety tests, and the officer decided to arrest him for driving under the influence.
After Taha was informed that he was under arrest, he told the officer that his father would come to retrieve the car. The officer replied that Taha's father would not be allowed to retrieve the car -- that the car was going to be impounded and towed to storage. Taha also asked the officer if his passenger (who was apparently sober) might drive the car. The officer said no. He told Taha that he had no choice but to impound the vehicle: " Legally, I have to do that." The officer then handcuffed Taha and placed him in the back seat of the patrol car.
In the meantime, a second police officer arrived on the scene. After this second officer learned that ...