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Taha v. State (2/5/2016) ap-2489

Taha v. State (2/5/2016) ap-2489

                                                                             NOTICE
  

             The text         of   this opinion can be corrected before the opinion is published in the                          

             Pacific Reporter             .   Readers are encouraged to bring typographical or other formal                             

             errors to the attention of the Clerk of the Appellate Courts:    



                                                  303 K Street, Anchorage, Alaska  99501  

                                                                  Fax:  (907) 264-0878  

                                                       E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                   



MALIK  AHMAD  TAHA,  

                                                                                                                                              

                                                                                                    Court of Appeals No. A-11166  

                                                                                                                                                           

                                                     Appellant,                                  Trial Court No. 3AN-10-1918 CR  



                                       v.  

                                                                                                                 O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                     Appellee.                                       No.  2489  -  February  5,  2016  



                          A                                                                                                     

                             ppeal   from   the   Superior   Court,  Third  Judicial   District,  

                                                                                             

                          Anchorage, Michael L. Wolverton, Judge.  



                                                                                                                                  

                          Appearances:  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. 



                                       

                          Judge MANNHEIMER.  



       *  

             Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                            


----------------------- Page 2-----------------------

                                                                                   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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                              -  2 -                                                                                                                                                                                                                                                        2489
  


----------------------- Page 3-----------------------

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.                                                                                                                                                                                                                                                                             



                                         Underlying facts   



                                                                               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 Taha was being arrested for driving under the influence, this                                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                 -  3 -                                                                                                                                                                                                                                           2489
  


----------------------- Page 4-----------------------

 second officer began searching through Taha's vehicle.                                                                                                                                                                                                                                                         The officer later described this                                                                                                                         



 search as an "inventory" of the contents of the car, in preparation for its impoundment.                                                                                                                                                                                                                                                                                                                                                                                                       



                                                                           This search of Taha's vehicle yielded drug paraphernalia.                                                                                                                                                                                                                                                                The police then                                                  



 applied for a search warrant to conduct another search of the car.                                                                                                                                                                                                                                                                                                           This second search                                                         



 (under the authority of the warrant) yielded additional evidence, including a quantity of                                                                                                                                                                                                                                                                                                                                                                                       



methamphetamine.    



                                                                           Taha   was   charged   with   fourth-degree   controlled   substance   misconduct  



 (possession   of   methamphetamine),   driving   under   the   influence,   and   fourth-degree  



weapons misconduct (because Taha had a firearm in the car, and he was intoxicated).                                                                                                                                                                                                                                                                                                                                



                                                                           Taha's attorney filed a pre-trialmotion                                                                                                                                                                       askingthe superior court to                                                                                                                         suppress  



 all of the evidence discovered in the car, on the ground that the impoundment and initial                                                                                                                                                                                                                                                                                                                                                                     



 search of his car violated the Fourth Amendment to the United States Constitution and                                                                                                                                                                                                                                                                                                                                                                                 



Article I, Section 14 of the Alaska Constitution - and that the search warrant was the                                                                                                                                                                                                                                                                                                                                                                                     



 fruit of this initial illegal search.                                                                                                                                           



                                                                          In its opposition to this suppression motion, the State relied on Anchorage                                                                                                                                                                                                                                                                             



 Municipal Code 09.28.026, which gives the police the authority, at their discretion, to                                                                                                                                                                                                                                                                                                                                                                                        



 seize and impound the vehicle of any person arrested for driving under the influence (as                                                                                                                                                                                                                                                                                                                                                                                   



well as five other listed crimes).                                                                                                                                                The State argued that this municipal ordinance was a                                                                                                                                                                                                                                                



 constitutional exercise of the Municipality's "community caretaker"                                                                                                                                                                                                                                                                                                                            function - the                                                            



 authority to seize and remove vehicles from the streets if they are "impeding traffic or                                                                                                                                                                                                                                                                                                                                                                                       



threatening public safety".                                                                                                                        



                                                                           See  South Dakota v. Opperman                                                                                                                                                , 428 U.S. 364, 369; 96 S.Ct. 3092, 3097;                                                                                                                                                           



 49   L.Ed.2d   1000   (1976),   where   the   United   States   Supreme   Court   recognized   this  



 "caretaking" authority of the government.                                                                                                                                                                                               



                                                                           The State also relied on the Supreme Court's decision                                                                                                                                                                                                                                                                      in   Colorado v.   



Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), where the Court held that                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                   -  4 -                                                                                                                                                                                                                            2489
  


----------------------- Page 5-----------------------

it was constitutional for police                                                                                       regulations to give arresting officers the discretion to                                                                                                                                             



impound an arrestee's vehicle rather than leaving it locked and parked in a safe place,                                                                                                                                                                                                                       



 so long as the officer's decision in this matter was governed by standardized, objectively                                                                                                                                                                                                



ascertainable criteria (aside from the desire to investigate crime).                                                                                                                                                                               Bertine, 479 U.S. at                                                      



375-76 & n. 7; 107 S.Ct. at 743 & n. 7.                                                                                                                 



                                                  The superior court apparently                                                                                        found the State's arguments convincing,                                                                           



because the court denied the suppression motion without comment.                                                                                                                                                                                               



                                                  Taha went to trial a few month later, and he was convicted of all three                                                                                                                                                                                        



charges.    He now appeals, renewing his argument that it                                                                                                                                                                was unconstitutional for the                                                                   



police to impound his vehicle, at least without giving him an opportunity to call someone                                                                                                                                                                                                         



else to retrieve the vehicle.                                                                          



                          The    Anchorage    impoundment    ordinance    is    not    justified                                                                                                                                                                         under    a  

                           "community caretaker" rationale                                                                                                 



                                                  As we explained at the beginning of this opinion, AMC 09.28.026.A gives                                                                                                                                                                                         



police officers the authority, at their discretion, to impound the motor vehicle of any                                                                                                                                                                                                                               



person   who   is   arrested   for,   or   charged   with,   any   of   the   following   six   offenses:   



                                                                                                                1                                                                                                                                                       2  

                                                                                                                      (2) driving while under  the influence,                                                                                                                 (3) refusing to  

(1)   soliciting for prostitution,                                                                                                                                                                                                                                                                                          



                                                                                          3                                                                                                                                                                                            4  

 submit to a breath test,   (4) driving with a suspended or revoked license,   (5) driving  

                                                                                                                                                                                                                                                                                                          



             1  

                         AMC 08.65.030.                                                 



             2  

                                                                                        

                         AMC 09.28.020.  



             3  

                                                                                        

                         AMC 09.28.022.  



             4  

                                                                                        

                         AMC 09.28.019.  



                                                                                                                                                                        

                                                                                                                                                          - 5 -                                                                                                                                                     2489
  


----------------------- Page 6-----------------------

                                                             5  

without having vehicle insurance,                               or (6) driving while not carrying proof of vehicle                            



                                                                          6  

insurance in one's immediate possession.                                      



                        Section B of this ordinance declares that every such vehicle is "a public  

                                                                                                                                                



nuisance", and section B further declares that a primary  purpose  of the ordinance is  

                                                                                                                                                        



"removing public  nuisances".                               But  this  is  a  non-standard  use  of  the  term  "public  

                                                                                                                                             



nuisance", and it appears to be mere window dressing.  

                                                                                                   



                        According to Black's Law Dictionary (10th ed. 2014), the phrase "public  

                                                                                                                                              



nuisance" means  

                   



                          

                        [a]n unreasonable  interference with a right common to the  

                                                                                                                              

                        general  public,  such  as  a  condition  dangerous  to  health,  

                                                                                                                      

                        offensive  to  community  moral  standards,  or  unlawfully  

                                                                                                               

                        obstructing the public in the free use of public property.  

                                                                                                                             

                          

                        Black's  explains that "the obstruction of a highway is a public nuisance".  

                                                                                                                                                            



Thus, to the extent a criminal suspect's vehicle might be blocking traffic at the time of  

                                                                                                                                                       



the suspect's arrest, the vehicle might properly be termed a "public nuisance".  But the  

                                                                                                                                                     



Anchorage impoundment ordinance does not require proof that a vehicle was blocking  

                                                                                                                                            



traffic, or that it otherwise posed a threat (or even an inconvenience) to the public's use  

                                                                                                                                                     



of the roadways.  

                                 



                        As noted earlier, the ordinance does not authorize the impoundment of all  

                                                                                                                                                      



vehicles being operated by criminal suspects at the time of their arrest.   Instead, it is  

                                                                                                                                                        



limited to the six offenses listed in section A of the ordinance.  This is one indication that  

                                                                                                                                                    



the ordinance is not aimed at preserving the public's unobstructed use of the roadways  

                                                                                                                                          



      5  

            AMC 09.28.030.A.                  



      6  

                                              

            AMC 09.28.030.B.  



                                                                                 

                                                                         - 6 -                                                                    2489
  


----------------------- Page 7-----------------------

-  for, if that were the aim of the ordinance, one would expect it to apply to all vehicles                                                                                                                                                                                                                                                                                                                                                                                                                      



that obstruct a public highway following the driver's arrest.                                                                                                                                                                                                                                                                                                                           



                                                                                     A second major indication that the Anchorage ordinance has nothing to do                                                                                                                                                                                                                                                                                                                                                                                        



with preserving the free use of public roadways is that                                                                                                                                                                                                                                                                                                                  the ordinance authorizes the                                                                                                                                          



 impoundment of a person's vehicle whenever the police have probable cause to believe                                                                                                                                                                                                                                                                                                                                                                                                                                   



that the vehicle was involved in one of the six listed offenses - even if the suspect is not                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 arrested until much later, or even if the suspect is                                                                                                                                                                                                                                                                    never  arrested.    



                                                                                     According    to    subsections    D.2    and    E.3    of    the    ordinance    (read    in  



 combination), the police are authorized to seize a motor vehicle and tow it away, without                                                                                                                                                                                                                                                                                                                                                                                                                          



 a court order, if                                                                     either  "[t]he impoundment is incident to an arrest"                                                                                                                                                                                                                                                                                  or  "[t]here is probable      



 cause to believe [that] the motor vehicle was operated, driven[,] or in the actual physical                                                                                                                                                                                                                                                                                                                                                                                                                     



 control of an individual [during the commission of one of the enumerated offenses]".                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



                                                                                      In other words, even if the arrest is made hours, days, or weeks after the                                                                                                                                                                                                                                                                                                                                                                                 



 offense   was   committed   -   or,   indeed,   even   if   the   person   is   never   arrested   -   the  



 ordinance   nevertheless   authorizes   the   police   to   seize   and   tow   the   person's   vehicle,  



without a court order, if they have probable cause to believe that, during the commission                                                                                                                                                                                                                                                                                                                                                                                                



 of the crime, the person operated or drove the vehicle, or had physical control of the                                                                                                                                                                                                                                                                                                                                                                                                                                                        



vehicle.   



                                                                                      (For instance, if the police find out weeks later that someone was driving                                                                                                                                                                                                                                                                                                                                                        



without carrying proof of their vehicle insurance in their immediate possession,                                                                                                                                                                                                                                                                                                                                                                                                                                                            the  



police can impound the person's car without a court order, even though the person has,                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 in the meantime, placed the necessary documentary proof of insurance in the car, and the                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 car is sitting in their driveway.)                                                                                                                                                                   



                                                                                     Because the Anchorage ordinance authorizes the impoundment of vehicles                                                                                                                                                                                                                                                                                                                                                        



without regard to whether the vehicle poses any public danger or inconvenience at the                                                                                                                                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                     -  7 -                                                                                                                                                                                                                                                               2489
  


----------------------- Page 8-----------------------

time it is seized,                                                                                         the ordinance can not be                                                                                                                                              justified under a "community caretaker"                                                                                                                                                                



rationale.   



                                         Even if we tried to limit the scope of the ordinance to situations where                                                                                                                                                                                                                                                                                                                                                       

                                          impoundment of a vehicle was truly linked to a community caretaker                                                                                                                                                                                                                                                                                                                                      

                                       function,  the ordinance would still be fatally flawed                                                                                                                                                                                                                                                                                                  because it lacks                                                               

                                         standardized, objectively ascertainable criteria for determining when to                                                                                                                                                                                                                                                                                                                                                                                   

                                          impound a vehicle                                                                                                     



                                                                                    Even though                                                                   the Municipalordinance                                                                                                                               authorizes impoundments of vehicles                                                                                                                                               



with no regard to whether there is a discernible community caretaker interest at stake, the                                                                                                                                                                                                                                                                                                                                                                                                                                            



ordinance might conceivably be saved by giving it a limiting construction - narrowing                                                                                                                                                                                                                                                                                                                                                                                                      



the operation of the ordinance to instances where the government could, in fact, show                                                                                                                                                                                                                                                                                                                                                                                                                                  



that impoundment of a particular vehicle furthered a community caretaker interest.                                                                                                                                                                                                                                                                                                                                                                                                                                                 



                                                                                    In  South Dakota v. Opperman                                                                                                                                                                  , 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d                                                                                                                                                                           



  1000 (1976), the United States Supreme Court acknowledged that the police are entitled                                                                                                                                                                                                                                                                                                                                                                                                                     



to engage in "community caretaking functions" with respect to automobiles, divorced                                                                                                                                                                                                                                                                                                                                                                                                               



 from the detection or investigation of crime, or from the acquisition of evidence relating                                                                                                                                                                                                                                                                                                                                                                                                                 



to crimes.                                                      And as part of this community caretaker function, the police may impound                                                                                                                                                                                                                                                                                                                                                          



vehicles that "jeopardize ... the public safety [or] the efficient movement of vehicular                                                                                                                                                                                                                                                                                                                                                                                                       



traffic."   Opperman, 413 U.S. at 368-69, 96 S.Ct. at 3097.                                                                                                                                                                                                                                                                                                                        



                                                                                    But although the Supreme Court has acknowledged that                                                                                                                                                                                                                                                                                                                 the police may                                                       



impound   motor   vehicles   under   a   community   caretaker   rationale,    the   Court   has  



consistently stated that such impoundments are lawful only if they are conducted under                                                                                                                                                                                                                                                                                                                                                                                                                               



the authority of, and in conformity with, governing regulations or police policies - and                                                                                                                                                                                                                                                                                                                                                                                                                                           



only if these regulations or policies are reasonably related to the proper exercise of the                                                                                                                                                                                                                                                                                                                                                                                                                                            



community caretaker function.                                                                                                         



                                                                                                                                                                                                                                                                -  8 -                                                                                                                                                                                                                                                          2489
  


----------------------- Page 9-----------------------

                                     These regulations or policies can give the police some discretion as to how                                                                                                                   



to handle a particular situation.                                                    For example, in                             Colorado v. Bertine                                     , 479 U.S. 367, 107                        



S.Ct. 738, 93 L.Ed.2d 739 (1987), the Supreme Court held that the impoundment of a                                                                                                                                                         



vehicle was constitutional when it was conducted under police                                                                                                                      regulations that gave                         



arresting officers the discretion to impound an arrestee's vehicle, rather than leaving it                                                                                                                                                 



locked and parked in a safe place, so long as the officer's decision in this matter was                                                                                                                                            



governed by standardized,                                                   objectively ascertainable criteria (aside from the desire to                                                                                                



investigate crime).                                  



                                     Thus, in               Bertine, the Court upheld the challenged impoundment regulation                                                                                         



because   "the   discretion   afforded   the   [municipal]   police   was   exercised   in   light   of  



standardized criteria, related to the feasibility and appropriateness of parking and locking                                                                                                                               

                                                                                                       7      In an accompanying footnote, the Court noted  

a vehicle rather than impounding it."                                                                                                                                                                                          



that the governing police department directive on impoundment forbade officers from  

                                                                                                                                                                                                                                 



pursuing  a  "park  and  lock"  alternative  if  "the  approval  of  the  arrestee  cannot  be  

                                                                                                                                                                                                                                       



                                                                                                                                                                                                                            8  

obtained" or if "there is reasonable risk of damage or vandalism to the vehicle".  

                                                                                                                                                                                                                                



                                     But the Anchorage municipal ordinance at issue in the present case gives  

                                                                                                                                                                                                                                 



the police broad discretion - apparently unbridled discretion - to impound  vehicles  

                                                                                                                                                                                                                        



simply because the police have reason to believe that the vehicle was involved in one of  

                                                                                                                                                                                                                                         



the six enumerated offenses, regardless of whether there  is any community caretaker  

                                                                                                                                                                                                                     



need to move or secure the vehicle.  

                                                                                                      



                                     With regard to the impoundment of vehicles incident to a person's arrest,  

                                                                                                                                                                                                                             



subsection  C.1  of  the  ordinance  expressly  declares  that  "[i]mpoundment  through  a  

                                                                                                                                                                                                                                          



seizure of [a] vehicle incident to an arrest is at the discretion of the arresting officer."  

                                                                                                                                                                                                                                                 



         7  

                  Bertine , 479 U.S. at 375-76, 107 S.Ct. at 743.
                                                                           



         8  

                                                                                                                                             

                  Id., 479 U.S. at 376 n. 7, 107 S.Ct. at 743 n. 7.
  



                                                                                                                            

                                                                                                                 - 9 -                                                                                                            2489
  


----------------------- Page 10-----------------------

And under subsections D.2 and E.3 of the ordinance (read in conjunction), the police                                                                                                                                                                                                                                                                                                                                                                                                                                                            



have unfettered authority to seize and impound vehicles,                                                                                                                                                                                                                                                                                                                                          without a court order,                                                                                                                                      and  



without any connection to an arrest, whenever "[t]here is probable cause to believe [that]                                                                                                                                                                                                                                                                                                                                                                                                                                                         



the motor vehicle was operated, driven[,] or in the actual physical control" of a person                                                                                                                                                                                                                                                                                                                                                                                                                                         



who committed one of the six enumerated offenses.                                                                                                                                                                                                                                                                                                       



                                                                                         (With   regard   to   this   "probable   cause"   provision,   it   is   clear   that   the  



 ordinance is speaking, not of a judicial officer's finding of probable cause, but rather of                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 a police officer's belief that there is probable cause - because the ordinance declares                                                                                                                                                                                                                                                                                                                                                                                                                                         



this to be one of the situations where a seizure can be conducted "without a court order".)                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                        Relying on the Supreme Court's decision in                                                                                                                                                                                                                                                     Bertine, the State argues that                                                                                                                                          



the   Anchorage   ordinance   is   constitutional even                                                                                                                                                                                                                                                                           though   it   gives   officers   such   broad  



 discretion to impound a vehicle.                                                                                                                                                                                     But although                                                                                Bertine  holds that the officer's decision                                                                                                                                                                     



 can be discretionary,                                                                                                                   Bertine  still insists on the requirement that the officer's discretion                                                                                                                                                                                                                                                                                                        



be governed by established regulations or formal policies, and                                                                                                                                                                                                                                                                                                                                                            Bertine  further requires   



that those regulations or policies embody standardized, objectively ascertainable criteria                                                                                                                                                                                                                                                                                                                                                                                                                                                



that are reasonably related to the proper exercise of the community caretaker function.                                                                                                                                                                                                                                                                                                                                                                                                                                    



                                                                                        As far as the record in this case shows, the Municipality of Anchorage has                                                                                                                                                                                                                                                                                                                                                                                                 



no such regulations or formal policies.                                                                                                                                                                                                                Indeed, according to the record, the only relevant                                                                                                                                                                                                                          



policy governing impoundments is an informal Anchorage Police Department policy that                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



 directs its officers to impound motor vehicles in                                                                                                                                                                                                                                                                    all circumstances                                                                                                         where impoundment   



 is authorized by the ordinance.                                                                                                                                                                        In other words, nothing is left to the officer's discretion.                                                                                                                                                                                                                                                                                                                       



 (This is precisely what the officer told Taha in the present case.)                                                                                                                                                                                                                                                                                                                                                            The police department                                                        



 simply instructs its officers to impound every vehicle that falls within the scope of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 ordinance,   regardless of whether there is any community                                                                                                                                                                                                                                                                                                                                           caretaker rationale for the                                                                                                                                  



 impoundment.   



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                                                                          Thus,  Opperman  and  Bertine  provide no constitutional justification for the                                                                                                                                                                                                                                                                                                                    



Municipality's practice.                                                                                                           



                                      Conclusion  



                                                                          The superior court denied Taha's suppression motion under the rationale                                                                                                                                                                                                                                                                                             



that impoundments of vehicles under AMC 09.28.026 are justified by the municipal                                                                                                                                                                                                                                                                                                                                                      



police force's "community caretaker" function.                                                                                                                                                                                                                     We REVERSE that ruling.                                                                                                                                The vehicle   



impoundments authorized by AMC 09.28.026 are not linked to any community caretaker                                                                                                                                                                                                                                                                                                                                                         



rationale.   Moreover, these impoundments are not governed by any regulation or formal                                                                                                                                                                                                                                                                                                                                                                   



policy that establishes standardized, objectively ascertainable criteria for impoundment                                                                                                                                                                                                                                                                                                                         



based on valid community caretaker concerns.                                                                                                                                                                                                                      



                                                                          Even though the superior court was wrong when it concluded                                                                                                                                                                                                                                                                                                         that   the  



impoundment of Taha's vehicle was justified under a community caretaker rationale, it                                                                                                                                                                                                                                                                                                                                                                                                 



is possible that the seizure and ensuing search of Taha's vehicle                                                                                                                                                                                                                                                                                                             might be justifiable                                     



under other rationales.                                                                                                     We therefore remand this case to the superior court for renewed                                                                                                                                                                                                                                                   



 consideration of Taha's suppression motion.                                                                                                                                                                                                           



                                                                          We do not retain jurisdiction of this case.                                                                                                                                                                                          



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