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Probable cause

US v. Cervantes, No. 09-50521 (5-16-12)(Pregerson with Nelson; dissent by Ikuta). Usually defendant's fourth amendment motion is quixotic when it concerns an auto stop, an arrest, and impoundment of the vehicle, in which two kilos of cocaine were found and inventoried. Tilting at windmills?

Not so here. The defendant was observed leaving a so-called stash house, taking the long way home, and then, the next day, after some trips, driving his car again. The agent asked the local police to follow and make a lawful arrest to help investigate. The police observe the "failure to stop" and pulled defendant over. He couldn't find his license (located the next day), and so was arrested for driving without. But, before he was arrested, the car was impounded. The 9th reversed the denial of the fourth amendment motion, holding that there was no probable cause to stop the defendant after leaving the stash house. The conclusion that it was a house of ill-repute was a mere conclusion; no facts were given. As for taking the long way home, there could be many innocent reasons. Thus, leaving the house, with a white box, is not enough. As for the stop, the problem with that comes from the police failing to impound the car after the arrest. They impounded first, which violate s the California procedure. The police also acted pretextually. Lastly, the car posed no danger. Dissenting, Ikuta argues that the simple rule, that all police know, that a car can be impounded incident to arrest, has been smudged with this opinion. To her, and the police, the car did pose a threat, parked on the side of a four lane busy street, miles from the defendant's home, and without a passenger to drive it home. Moreover, the arrest was lawful, given the lack of license at the time. The police impounded incident to arrest; the arrest does not have to come first.