Hackers Underworld 2: Forbidden Knowledge

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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 discretion in deciding whether to seize property is not prohibited if it is governed by standardized administrative procedures. However, property that is not seized is generally not subject to an inventory search. For example, a court held in a recent New Jersey case that the inventory of an improperly parked vehicle that police officers did not impound--although they could have--was unreasonable because no caretaking was required. (14) Standardized Criteria for Inventory Searches In both the "Opperman" and "Lafayette" cases, the Court stressed the need for departmental policy that guides police officers in carrying out administrative caretaking functions. (15) Just as criminal investigative practices are authorized and limited by laws, administrative actions derive their validity and scope from established routine or published departmental policy. In the case of inventory searches, policy is required to ensure that such administrative action is initiated and conducted in a uniform or standardized manner for the purpose of discharging caretaking responsibilities. The 1987 Supreme Court decision in "Colorado v. Bertine" (16) involved police officers from Boulder, Colorado, who had arrested the defendant for driving his van under the influence of alcohol. Before the tow truck arrived to take the van to an impoundment lot, a backup officer, acting in accordance with departmental policy, inventoried the van's contents, including a knapsack in which various containers of drugs and cash were located. Based on the guidance provided in the departmental policy, the Court upheld the officers' decision to impound the vehicle and to search it at the side of the road before it was towed away. Noting that the standard procedure for impounding vehicles mandated a "detailed inventory involving the opening of containers," (17) the Court reaffirmed its earlier decision in "Opperman" extending inventory searches to closed containers found inside vehicles. The exercise of police discretion to impound and search the vehicle at the point of seizure, as opposed to leaving it locked in a public parking space, was also upheld as appropriate under the terms of the departmental policy in effect at that time. Distinguishing Administrative and Criminal Searches While inventory searches often reveal incriminating evidence, they must not be conducted solely for the purpose of criminal investigations. Instead, inventory searches must be initiated on the basis of "standardized criteria," (18) or departmental guidelines, that underscore the administrative nature of the search, but incidentally include the right to seize evidence located in plain view during the inventory. This distinction between administrative and criminal searches is clearly drawn in Bertine, where the Court rejected the defendants argument that the inventory search of a closed knapsack seized from an impounded vehicle contravenes the rule that the scope of motor vehicle exception searches does not include closed containers placed in otherwise innocent vehicles. (19) The Court found that the motor vehicle exception and the cases defining its scope concern criminal investigations and are not implicated in an analysis of routine administrative caretaking functions designed to secure and protect vehicles in police custody. (20) Furthermore, in the administrative context, it is immaterial whether the police actually suspect that a particular container might be dangerous since the duty to provide general protection against risks transcends a particular officers specific subjective concerns. (21) LIMITATIONS ON POLICE DISCRETION The Supreme Court decision in "Bertine" left unresolved the following specific questions concerning the extent of police authority to search containers located during an inventory search: * Can police search locked, as well as closed, containers during inventory searches? * Can these containers be searched even when no specific provision to do so is included in the standardized criteria of departmental policy? * Can the policy be drafted to allow police the discretion to inventory the contents of some containers but not others that are taken into custody? * Is evidence admissible when found in plain view during an inventory search even where the discovery is not inadvertent because particularized suspicion that evidence of a crime would be found preceded the inventory? Factual Background of "Florida v. Wells" In 1990, the Supreme Court in "Florida v. Wells" (22) addressed, either directly or indirectly, most of the above issues. After arresting the defendant Wells for driving under the influence, a Florida Highway Patrol trooper noticed a large amount of cash lying on the floor of the arrestee's vehicle. Shortly afterwards, Wells consented to open the automobile's trunk, which revealed a locked suitcase. The arresting officer ordered the vehicle towed to an impoundment facility and sought instructions from his supervisor as to whether an inventory search should be conducted. The supervisor left that decision to the discretion of the arresting officer, who in turn inventoried the entire vehicle and its contents. During the search, the trooper suggested to those assisting him that the inventory should be thorough, as he had a "strong suspicion," (23) based on the amount of cash previously located, that drugs were in the car, "probably in that suitcase." (24) During the inventory, a bag of marijuana was recovered from the suitcase. The Supreme Court of Florida declared the marijuana found in the suitcase to be inadmissible because the Highway Patrol policy did not specifically authorize the opening of closed containers during inventory searches. (25) In addition, the Florida court concluded that the drafters of administrative policy must "...under "Bertine"...mandate either that all containers will be opened during an inventory search, or that no containers will be opened," (26) thereby leaving no room for discretion on the part of the officers conducting the inventory. Importance of Departmental Policy The Supreme Court affirmed the Florida court's decision to suppress the marijuana, but based its decision on the narrow ground that the absence of any policy whatsoever concerning the search of closed containers would allow police officers to have "uncanalized discretion" (27) during caretaking inventories. In effect, the Court held that if standardized criteria do not specifically provide for the opening of closed or locked containers, such items may not be opened during inventory searches. A majority of the Justices, however, rejected the argument that policy should limit an officer's discretion by mandating that inventory searches be conducted in a "totally mechanical all or nothing fashion." (28) In "Bertine," the Court had previously highlighted the need for flexibility in police inventory policy: "Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit." (29) Thus, law enforcement officials may consider the following options in designing a particular policy appropriate for their needs: * Disallow the opening of any closed and/or locked containers; * Require that all containers be opened; or * Allow closed and/or locked containers to be opened on a discretionary basis (i.e., the policy provides officers a "...sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and the characteristics of the container itself.") (30) Under the third option, the officer faced with the onerous task of inventorying large numbers of containers of the same or similar configuration and contents could lawfully decide to open only a few of the items if no purpose would be served to open the rest. Pre-existing Suspicion In Wells, the subjective intent of the officers conducting the inventory went beyond a desire to protect impounded property, since they also suspected the arrestee of other crimes and clearly anticipated the recovery of evidence of those additional violations. While the majority opinion in Wells does not address the constitutional significance of such mixed motives in conducting an inventory search, it does note that "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence" (31) and that officers should not use the caretaking function solely as a criminal investigative tool. Nonetheless, the Court has indicated that particularized suspicion of criminal activity will not taint an inventory search that was initiated pursuant to standardized criteria "designed to produce an inventory." (32) In fact, suspicion or knowledge of the hazardous nature of the property often becomes part of the decisionmaking process underlying custodial caretaking searches. Prior to the 1990 Supreme Court decision in "California v. Horton," (33) it was arguable that an inventory search, conducted with a pre-existing suspicion of the presence of evidence of criminality, might invalidate the seizure of such evidence under the plain view doctrine because the discovery was not inadvertent. (34) The "Horton" decision, however, resolved previous uncertainty concerning whether inadvertence is a necessary element of the plain view doctrine by holding that the fourth amendment does not prohibit the warrantless seizure of evidence in plain view even when the discovery of such evidence is not inadvertent. In "Horton," police officers executing a search warrant for weapons also seized in plain view proceeds of a robbery which they had reason to believe was on the premises before they entered. The Court held that "objective standards of conduct" (35) rather than the subjective state of mind of the officers are the appropriate criteria for a plain view seizure: "The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of the warrant or a valid exception to the warrant requirement (emphasis added)." (36) CONCLUSION This article began with a fictitious but common scenario of police officers faced with a series of decisions concerning their discretion to impound and inventory the contents of a vehicle stopped for one offense but suspected of containing evidence of other criminal violations. It is clear that their decisions should be linked to the terms of the specific standards for inventory searches set forth in their departmental policy. A policy that permits the officers to inventory closed and locked containers and also reserves for the officer the discretion to determine whether a particular container should or should not be opened will probably produce the maximum benefits in terms of efficiency, safety, and the admissibility of any evidence recovered. Court decisions discussed in this article suggest that a carefully drawn departmental policy can provide officers the authority to exercise their discretion to impound and inventory as follows: 1) Officers have the option not to impound a vehicle when there is a reasonable alternative, but the "existence of alternative less intrusive means" (37) does not preclude their authority to impound. 2) An inventory may be conducted on the side of the road as long as the vehicle is taken into police custody. 3) Officers may inventory the contents of closed as well as locked containers when done in accordance with the terms of standardized criteria set forth in departmental policy designed for the caretaking of property in police custody. 4) A selective inventory may be conducted if such a technique is authorized by departmental policy. 5) A pre-existing suspicion that evidence will be uncovered during a lawful inventory will not invalidate a plain view seizure of that evidence. (38) Because of the incremental effect of recent Supreme Court decisions on the scope of inventory searches, careful review and updating of agency policy is now essential to ensure that the desired role of discretion in the execution of custodial inventories is clearly articulated and disseminated. FOOTNOTES (1) 390 U.S. 234 (1968) (hereinafter Harris). See also, Cooper v. California, 386 U.S. 58 (1967), establishing the right to inventory a vehicle impounded for use as evidence in a forfeiture proceeding. (2) Harris, supra note 1, at 235. For discussion of the justification and scope of inventory searches, see Hall, "The Inventory Search," FBI Law Enforcement Bulletin, August 1987, pp. 26-30, and September 1987, pp. 25-30. (3) For discussion of the plain view seizure doctrine, see Kingston, "Look But Dont Touch: The Plain View Doctrine," FBI Law Enforcement Bulletin, December 1987, pp. 17-24. (4) Cady v. Dombrowski, 413 U.S. 433 (1973). (5) The Supreme Court has held that when officers can articulate probable cause that a motorized conveyance contains evidence of a crime, that vehicle, because of its inherent mobility, may be searched without obtaining a warrant. See, e.g., Carroll v. United States, 267 U.S. 132 (1925) and Chambers v. Maroney, 399 U.S. 42 (1970). (6) 428 U.S. 364 (1976) (hereinafter Opperman). (7) Katz v. United States, 389 U.S. 347 (1967). (8) Opperman, supra note 6, at 369. (9) 462 U.S. 640 (1983) (hereinafter Lafayette). (10) Id. at 646. (11) Id. at 647. (12) Bertine v. Colorado, 479 U.S. 367 (1987) (hereinafter Bertine). (13) Lafayette, supra note 9, at 647. (14) New Jersey v. Hill, 557 A.2d 322 (N.J. Sup. Ct. 1989). (15) Opperman, supra note 6, at 373; Lafayette, supra note 10, at 648. (16) Bertine, supra note 12, at 367. (17) Id. (18) Lafayette, supra note 9, at 648. (19) See, United States v. Chadwick, 433 U.S. 1 (1977) and Arkansas v. Sanders, 442 U.S. 753 (1979). (20) Bertine, supra note 12, at 367. (21) Lafayette, supra note 9, at 646. (22) 110 S.Ct. 1632 (1990) (hereinafter cited as Wells). (23) Id. at 1637. (24) Id. (25) Florida v. Wells, 539 So.2d 464 (1989). (26) Id. at 469. (27) Wells, supra note 22, at 1635. (28) Id. at 1635. (29) Bertine, supra note 12, quoting Lafayette, supra note 9, at 648. (30) Wells, supra note 22, at 1635. (31) Id. (32) Id. (33) 110 S.Ct. 2301 (1990) (hereinafter Horton). (34) See Coolidge v. New Hampshire, 403 U.S. 443 (1971), in which a plurality of the Court found that if an officer is interested in an item and expects to find it, his subjective state of mind will negate the finding of the inadvertence requirement of plain view seizures. Other requisite elements of a plain view seizure are as follows: 1) The objects incriminating character must be immediately apparent; and 2) the officer must have a lawful right to access the object itself. (35) Horton, supra note 33, at 2308. (36) Id. at 2309. (37) Lafayette, supra note 9, at 647. (38) In the event, however, that officers have developed probable cause that a particular item to be searched contains specific evidence of a crime, it should be noted that obtaining a search warrant for such evidence is generally preferred by courts. See Fiatal, "The Judicial Preference for the Search Warrant," FBI Law Enforcement Bulletin, July 1986, pp. 21-30. _______________ Law enforcement officers of other than Federal jurisdiction who are interested in this article should consult their legal advisor. Some police procedures ruled permissible under Federal constitutional law are of questionable legality under State law or are not permitted at all.