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1991-06-03
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May 1991
INVENTORY SEARCHES:
THE ROLE OF DISCRETION
By
Austin A. Andersen
Special Agent and Legal Instructor
FBI Academy
Quantico, Virginia
Suppose that police officers on duty in a locale frequented
by drug users observe the vehicle of an individual known to them
as a suspect in a drug trafficking investigation. Because this
individual is driving in an erratic manner, he is stopped by the
officers, who notice several apparently locked containers in the
passenger compartment of the vehicle. After failing a sobriety
test administered at the roadside, the suspect is arrested for
driving under the influence. Prior to being taken to police
headquarters, the arrestee asks the officers to lock the vehicle
and leave it in a nearby public parking lot.
The officers now face the following questions concerning
their authority to impound the vehicle and inventory its
contents:
* Can the vehicle be impounded even when a reasonable and
less intrusive alternative exists?
* Can an inventory search be conducted at the point of
seizure on the side of the road, or must it take place
at the impoundment location?
* Can the officers inventory the contents of the closed
and locked containers?
* If one container is opened, must all containers be
opened and their contents inventoried?
* Will the officers' suspicion that drugs may be present
in the vehicle or containers affect the admissibility of
any such evidence located during the inventory?
The answer to each of these questions depends in large
measure on the extent to which these police officers have
discretion to initiate and conduct inventory searches.
This article examines the relationship between the
administrative procedures that police agencies establish as
criteria for inventory searches and the latitude for discretion
available to officers conducting those searches. Court
decisions involving police discretion to impound and conduct
inventory searches are discussed, and specific policy
recommendations are offered.
DEVELOPMENT OF THE INVENTORY SEARCH
Current rules for conducting inventory searches of personal
property have been established in a series of Supreme Court
decisions that examine police caretaking functions under
differing factual circumstances. A brief review of these cases
reveals the development of a relationship between departmental
policy and the use of discretion by an officer conducting an
inventory search.
Lawful Custody Required
The ability of police officers to remove valuable items
from vehicles seized as evidence of a crime was established in a
1968 Supreme Court case that upheld the inventory of the
contents of a getaway car impounded after its use in a bank
robbery. In this case, "Harris v. United States," (1) the Court
set forth two requirements that make inventory searches
reasonable under the fourth amendment: 1) The vehicle must
lawfully be in police custody; and 2) the officers must be
acting in accordance with an established duty to protect the
property. (2) Once the inventory is initiated, reasoned the Court,
evidence of a crime located in plain view is subject to
seizure. (3)
A Community Caretaking Function
In 1973, (4) the Court validated a precautionary search for a
service revolver in the impounded vehicle of a police officer
arrested for driving while intoxicated. Although they suspected
the off-duty officers vehicle might contain a weapon, the
officers conducting the inventory lacked the probable cause
required to search the vehicle using either a search warrant or
the vehicle exception to the warrant requirement. (5)
Nonetheless, the Court found the inventory a reasonable police
intrusion because it was performed as an administrative function
designed for the general protection of the public.
Safeguarding Property in Police Custody--An Administrative
Function
In its 1976 decision, in "South Dakota v. Opperman," (6)
the Court stressed the fact that inventory searches are
recognized as an exception to the general requirement that
searches be conducted with warrants (7) because of their
administrative rather than investigative purpose. In
"Opperman," police impounded an illegally parked and locked
automobile, inventoried its contents, and located a quantity of
marijuana in the unlocked glove compartment. The Court ruled
the marijuana admissible because it was located in plain view
during an inventory search conducted for the purpose of
safekeeping property in police custody.
The Court concluded that the fourth amendment requires
neither a search warrant nor probable cause to inventory an
impounded vehicle because such searches are reasonably justified
by virtue of their administrative character. Unlike a search in
furtherance of a criminal investigation, where the focus is on
locating incriminating evidence, a routine inventory search is a
noncriminal procedure designed to safeguard the community by: 1)
Protecting an owners property while it is in the custody of the
police; 2) insuring against claims of lost, stolen, or
vandalized property; and 3) protecting law enforcement personnel
from potentially dangerous items. (8)
Personal Effects of Arrested Persons
In a 1983 case entitled "Illinois v. Lafayette," (9) the
Court extended the right to conduct these custodial caretaking
procedures designed to protect vehicles and their contents to
the personal effects of an arrested person. The Court found the
government's obligation to safeguard an arrestee's property and
to insure the well-being of the police and community to be
paramount to individual privacy interests in the personal
effects inventoried. In addition, the range of governmental
responsibility justifying the need for inventory searches was
broadened to include the following: 1) The prevention of
undesirable police practices, such as the careless handling or
theft of such personal property; and 2) the safekeeping of
dangerous instrumentalities, such as razor blades, drugs, or
explosives, that might be concealed within innocent-looking
articles. (10)
LIMITING POLICE DISCRETION TO IMPOUND
When an individual taken into custody possesses such
containers as a suitcase, briefcase, or a knapsack, should
police have the discretion to seize and impound such containers,
or to allow the arrestee to entrust the package to a friend or
place it in a rental locker? Assuming there is no probable
cause to search an arrestee's vehicle, do police nonetheless
have the discretionary authority to impound that vehicle when it
could as easily be left in a commercial parking lot?
According to the Supreme Court, "[the] real question is not
what could have been achieved, but whether the Fourth Amendment
requires such steps." (11) What satisfies the fourth amendment,
according to the Court, are "reasonable police regulations
relating to inventory procedures administered in good faith...."
(12) The fact that, in hindsight, an equally reasonable--or
even less intrusive--means of protecting some types of personal
property exists will not invalidate the inventory because it
would be unreasonable to expect such subtle evaluations during
these routine, course-of-business administrative functions. (13)
The above cases suggest that impoundment, or at least the
exercise of custody or control of such property, is a predicate
to the inventory search. The exercise of di