This installment of The Corner will tackle the “inventory searches.”
Bulletin Disclaimer:
I am not an attorney and make no claim to be an attorney. I developed this scenario/training bulletin based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.
I developed and am providing this training bulletin for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information.
Let’s Begin
I field a lot of questions concerning an officer’s ability to conduct an inventory search of a vehicle when the officer is going to impound it and what the legalities are for charging the occupants (driver and/or passengers) if the officer finds contraband that the officer can form probable cause to believe any or all the occupants had control over the contraband. As such, we will discuss United States Supreme Court, Federal Court of Appeals, and Colorado state court opinions concerning inventory searches; however, first, we will discuss how officers, in my opinion, came to rely on, and become over-reliant on, using inventory searches.
In 2009, The United States Supreme Court rendered its Arizona v. Gant opinion that changed precedent concerning searching a vehicle incident to the arrest of the vehicle’s occupants. The ruling severely curtailed an officer’s ability to warrantlessly search the passenger compartment of a vehicle incident to arrest. The ruling meant that officers could conduct a search of a vehicle incident to a recent occupant’s arrest only if the arrestee is unrestrained and within reaching distance of the passenger compartment at the time of the search, or if the officer has a reason to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle is unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
After the Gant ruling became precedent, officers began relying more on inventory searches to recover contraband, which could lead to additional charges against the vehicle’s occupant(s). I must note that inventory searches could not be used to further criminal investigations but if the inventory search followed standard department policy and protocol if contraband was recovered the occupant(s) could be charged for the contraband.
The recovery of contraband via inventory searches since Gant has led to defense attorneys arguing the vagueness and validity of law enforcement tow policies. Many department’s policies were challenged resulting in the successful suppression (motions) hearings, dismissal of charges against defendants, and departments rewriting their tow policies.
To gain a better understanding of an inventory search, its proper use, and how case law has evolved concerning its use, below we will a few federal and state court cases.
United States Supreme Court Decisions Concerning Inventory Searches
- South Dakota v. Opperman (1976): The case of South Dakota v. Opperman (1976) involved a dispute over a routine inventory search of a lawfully impounded car. The South Dakota Supreme Court ruled that the officer’s inventory search of the vehicle in which the officer located marijuana inside the glove compartment violated the Fourth Amendment; however, the U.S. Supreme Court reversed that decision. The U.S. Supreme Court held that inventory searches of impounded vehicles are constitutionally permissible under the Fourth Amendment. The Court reasoned that automobiles have a lesser expectation of privacy compared to homes and offices, and the mobility of vehicles creates exigent circumstances where strict warrant requirements are impractical. Additionally, the Court recognized the legitimate public safety interests and caretaking functions of law enforcement in impounding and inventorying vehicles. The Court concluded that such inventory searches serve the dual purposes of protecting the owner’s property and the police from potential claims or disputes and are therefore reasonable under the Fourth Amendment.
- Colorado v. Bertine (1987): The Court, in its review of this case, addressed whether the Fourth Amendment prohibits the use of evidence obtained during the inventory search of a vehicle. The case involved the arrest of Steven Lee Bertine for driving under the influence of alcohol. After Bertine’s arrest, officers conducted an inventory search of Bertine’s van and discovered controlled substances, drug paraphernalia, and cash in a closed backpack. Bertine argued that the search violated the Fourth Amendment. The Court held that officers conducted the inventory search (of Bertine’s vehicle) in accordance with standard police procedures and did not violate the Fourth Amendment. The Court opined that inventory searches serve legitimate government interests, such as protecting the owner’s property, preventing false claims, and ensuring the safety of the police.
- Florida v. Wells (1990): The Court addressed a case where a Florida Highway Patrol trooper stopped Wells for speeding and subsequently arrested him for driving under the influence. The officer conducted an inventory search of Wells’ car, and during the search, the officer located a locked suitcase in the trunk. The officer forced open the suitcase and found marijuana inside. The Supreme Court of Florida ruled that the search violated the Fourth Amendment because the Florida Highway Patrol had no specific policy governing the opening of closed containers during inventory searches. The U.S. Supreme Court affirmed this decision, emphasizing the need for standardized criteria or an established routine for inventory searches and concluding that the search, in this case, was not sufficiently regulated.
In summary, the Court established that inventory searches are constitutionally permissible under the Fourth Amendment, considering the reduced expectation of privacy in automobiles and the practicality of warrant requirements in mobile situations. The Court opined that inventory searches serve legitimate purposes, such as protecting property, preventing false claims, and ensuring officer safety. However, the Court made it clear that law enforcement agencies to have standardized criteria or established routines for conducting inventory searches to maintain the Fourth Amendment’s requirements. The absence of such regulations can lead to a violation of constitutional rights, as seen in the Florida v. Wells case.
The 10th Circuit Court of Appeals U.S. v. Sanders (2015):
- U.S. v. Sanders (2015): Aurora (Colorado) Police Department (APD) officers were looking for Sanders, who had an outstanding probation warrant for violating her probation terms in relation to a controlled substance charge. The officers found Sanders’ vehicle in a store parking lot and then saw Sanders and another person come out of the store. The officers contacted Sanders and the other person and arrested Sanders for the warrant. The officers decided to impound Sanders’ vehicle because they believed that due to the criminal activity in the area, the car, which contained much of Sanders’ belongings, would most likely get broken into or stolen if left in the parking lot. The officers conducted an inventory search of the vehicle, located illegal narcotics and drug paraphernalia inside the vehicle, and charged Sanders.
I am intimately aware of this decision as this was an Aurora (Colorado) Police Department arrest (APD). I was a Captain at APD and received a telephone call from the arresting officer immediately after the federal magistrate suppressed the inventory search of Sanders’ vehicle. The officer, who had just testified, called me to tell me about the Magistrate’s ruling. The officer told me the magistrate suppressed the search for two reasons: (1) Sanders’ vehicle was on private property and APD’s tow (impoundment) policy does not address criteria/standard protocols for impounding vehicles on private property, and (2) APD’s policy does not address criteria for impounding vehicles based on community caretaking concerns.
As I talked with the officer, I reviewed APD’s policy and told the officer the magistrate’s ruling was correct. After my discussion with the officer, I immediately contacted Aurora’s Deputy City Attorney to tell him about the ruling and let him know that we needed to change APD’s tow policy and possibly the city’s vehicle impound ordinance. The Deputy City Attorney told me he believed APD’s policy and the city’s ordinance were fine and that he believed the 10th Circuit Court of Appeals would overturn the magistrate’s ruling. Well, approximately three months later, the 10th Circuit affirmed the magistrate’s ruling. The 10th Circuit determined the vehicle’s impoundment was unconstitutional for two reasons: (1) it was not guided by the 21 standardized criteria identified in the City of Aurora’s ordinance; and (2) it was not justified by a legitimate community-caretaking rationale. The 10th Circuit held “that impoundment of a vehicle located on private property that is neither obstructing traffic nor creating an imminent threat to public safety is constitutional only if justified by both a standardized policy and a reasonable, nonpretextual community-caretaking rationale.”
The 10th Circuit’s ruling led to the rewriting (actually I rewrote the policy with review by the APD’s legal advisor) of APD’s impoundment policy and adding community caretaking language.
Several Colorado court opinions, which we will identify and briefly discuss below, have followed the Sanders decision, and have further restricted an officer’s ability to conduct an inventory search and impound a vehicle.
Recent Colorado Court Decisions Affecting Inventory Searches
- People v. Brown (Colo. 2018): This is another case involving the APD. In this case, APD officers received an anonymous report of a suspicious person driving a gray BMW in the area. Officers observed a gray BMW fail to stop at a stop sign. The officers pulled the vehicle over and discovered the driver was driving on a suspended license. The officers decided to issue a summons and release the driver and impound the driver’s vehicle pursuant to routine police procedure authorized by the city’s ordinance. The officers inventoried the vehicle’s contents in preparation for tow and discovered several bags of crack cocaine inside the vehicle. The officers subsequently arrested the driver. The Colorado Supreme Court held the inventory search violated the driver’s Fourth Amendment rights.
The Colorado Supreme Court specifically found:
The record failed to demonstrate that the seizure of the defendant’s vehicle was justified as an exercise of the police caretaking function or was otherwise reasonable within the meaning of the Fourth Amendment, regardless of local ordinances or police policies and procedures broad enough to grant the officers discretion to impound the vehicle of a driver merely summoned rather than arrested for driving with a suspended license.
The Colorado Supreme Court held that impoundment of the Defendant’s vehicle and subsequent inventory search after the officer issued a citation for driving while license suspended was outside the scope of the officer’s community caretaking function.
- People v. Quick (2018): In this case,an officer observed a vehicle, driven by a sole male occupant, commit several traffic violations. The officer activated his patrol vehicle’s emergency lights, and the male pulled the vehicle into the private parking lot of a liquor store. The male got out of his car and began walking toward the store. The officer contacted the male and asked for his driver’s license. The male ultimately produced an ID card rather than a valid driver’s license. The officer realized that he had previously contacted the male and that the officer (on the prior contact) arrested the male for possession of a weapon by a previous offender (POWPO). The officer ordered the male to return to his vehicle. The officer verified that the male’s had a suspended license. The officer patted-down the male, informed the male he was going to receive a summons for driving on a suspended license, and his vehicle was going to be impounded. The officer told the male he was going to look inside the car for its VIN number and while doing so, the officer saw a gun in plain view inside the vehicle. The officer recovered the gun and arrested the male for POWPO.
The Colorado Supreme Court, in its People v. Quick (2018) opinion, found that where Quick was merely cited, and not actually arrested, for driving with a suspended license, and where the only justification offered for seizing his car was the likelihood that he would continue to drive and thereby endanger public safety, the initial seizure of his car did not fall within the community caretaking exception to the probable cause and warrant requirements of the Fourth Amendment.
- People v. Allen (2019): This is a rather lengthy scenario so bear with me.
An officer on patrol observed a vehicle run a stop sign. The officer pulled in behind the vehicle and attempted to initiate a traffic stop for the traffic violation. The officer activated the patrol vehicle’s emergency lighting equipment; however, the vehicle, containing two occupants, failed to yield. The vehicle traveled for a few blocks before pulling into a hotel parking lot. Before the vehicle stopped, it traveled at a very slow speed in the parking lot for a long distance (approximately the length of a city block). The officer noticed the vehicle’s front seat passenger ducked down in the front seat several times and the officer believed the passenger’s actions were consistent with someone who may be attempting to hide something under the seat. The officer sounded his patrol vehicle’s siren a couple of times and the vehicle finally pulled into a spot in the parking lot and stopped. Another officer arrived as the vehicle stopped and both officers approached the vehicle and contacted the occupants. The driver provided a valid driver’s license but could not provide the vehicle’s registration or insurance. The driver told the officer he was in the process of purchasing the vehicle from the registered owner. The passenger verbally identified himself to the officers. One of the officers recognized the passenger’s name from a briefing by other officers in which the officers had information the passenger was carrying a handgun and selling methamphetamine. Based on the passenger’s movements prior to the vehicle stopping and the information the officers had concerning the passenger, the officers asked the passenger to exit the vehicle so an officer could pat-down the passenger. No weapons were located on the passenger. One of the officers then conducted a brief search of the passenger seat area for weapons and located one live round of ammunition. One of the officers began talking with the driver who was still seated in the vehicle. The officer asked the driver to exit the vehicle and the driver complied. The officer conducted a pat-down search of the driver and did not locate any weapons. The officer then asked the driver if there were any guns or illegal drugs in the vehicle, and the driver said that he was not allowed to own a gun because he was a convicted felon.
The passenger then asked the officers if he could leave, and the officers said yes. The officers then told the driver he was receiving a ticket for running the stop sign and failing to provide insurance. The officers also told the driver he would be free to leave once the ticket was issued but the officers were going to impound the vehicle due to the lack of registration and proof of insurance. The officer allowed the driver to enter the vehicle and grab some belongings. The officer then issued the ticket to the driver and the left. The officers then began conducting an inventory search of the vehicle to prepare it for impound and while searching, the officers found a semi-automatic pistol underneath the driver’s side floormat, and methamphetamine in the center console. The officers, upon recovering the firearm and drugs, located and arrested the driver.
The Colorado Supreme Court held that the inventory search violated Allen’s rights. The Colorado Court reasoning is below:
Here, the officers seized and inventoried the Cadillac because, in the exercise of their discretion, they decided to impound it. But the People did not present any evidence at the motions hearing to establish that the officers did so in accordance with any written or oral standardized criteria or policies. In fact, the People did not introduce any evidence that such criteria or policies existed. Because the existence of standardized criteria or policies is a necessary condition of the community caretaking exception to the warrant requirement, we conclude that the seizure and subsequent inventory of the Cadillac were not reasonable and violated Allen’s constitutional rights under the Fourth Amendment.
- People v. Thomas (CO. COA, 2021): An officer made a traffic stop on a vehicle in a residential area for rolling through a stop sign and failing to signal a turn. The driver and sole occupant provided identification and the vehicle’s registration to the officer but could not produce proof of current insurance. The officer checked the driver’s identification, discovered the driver had a warrant for his arrest, and subsequently arrested the driver. The officer conducted an inventory search of the vehicle in preparation for impoundment and found a handgun, illegal narcotics, and drug paraphernalia. The officer subsequently charged the driver.
The Colorado Court of Appeals held that the inventory search violated the driver’s Fourth Amendment rights. Specifically, the court of appeals found “the prosecution provided no evidence” that the inventory search and seizure of items “found during the search furthered some community caretaking purpose beyond the officer’s compliance with his department’s procedure.” The court of appeals provided the following reasoning:
Thomas’s vehicle was legally parked on a residential street. The evidence did not show that the street was busy, that the vehicle was obstructing traffic, that it was dangerous or disabled, or that it was blocking any driveway. The prosecution presented no evidence that it was illegal, hazardous, or even unusual to leave a vehicle parked in that location. Without such evidence, the prosecution did not demonstrate any interest in public safety or convenience that justified removing Thomas’s vehicle.
The prosecution below presented no evidence that the vehicle’s location in the residential neighborhood (six blocks from Thomas’s home) made it vulnerable to vandalism. That is, the prosecution presented no evidence that parking a vehicle overnight in that location created an appreciable risk of vandalism or theft, or that Thomas’s arresting offense would cause the vehicle to remain unattended for an extended period of time before he could post bail. Indeed, the evidence presented at the hearing suggested that the vehicle would not have been left unattended for long because Thomas’s wife, the co-owner, was only a short distance away and could have taken custody of it. This case presents the novel question whether the community caretaking exception to the Fourth Amendment’s warrant requirement permits a police officer to impound a vehicle whenever the driver is arrested and no one else is present to take custody of the vehicle. We conclude that the answer is “no.” Because the prosecution here did not show that the seizure furthered a valid community caretaking function, impounding the legally parked vehicle was unreasonable. The evidence discovered during the subsequent inventory search of the vehicle was therefore inadmissible.
Takeaways
The federal and state court decisions provided in this article highlight the importance of officers knowing, understanding, and following their respective departments’ standardized criteria and policies when conducting inventory searches. Concerning the impoundment of a vehicle on private property, officers must articulate the vehicle is obstructing traffic and/or creating an imminent threat to public safety to do so. Additionally, any vehicle impoundment must be justified by both a standardized policy and a reasonable community-caretaking rationale.
My recommendation to officers is that they do not impound a vehicle unless there is a clearly justifiable circumstance (e.g., the vehicle is obstructing traffic, is a hazard, is creating a hazard) you get consent to do so from the driver or registered owner, you exhausted a reasonable attempt to locate a person to take responsibility for the vehicle if the driver is arrested and will be incarcerated for a lengthy period of time, or you have articulable community caretaking rationale, which is also part of your department’s standard criteria an policy.
I hope you found this information helpful. Please let me know if you have any questions on this topic or other topics.