Miller: Jenna driving to work last week I saw a car that apparently had broken down beside the highway and was being towed away. I’m pretty sure that the car will be towed to an impound lot and its contents inventoried. These inventories are government intrusions into the owner’s reasonable expectation of privacy. They’re not only warrantless, but also lack probable cause. We talked about the Mobile Conveyance exceptions to the warrant requirement. The Mobile Conveyance exception excuses the need for a warrant but requires probable cause. An inventory, like an inspection, doesn’t even require probable cause. Why is that reasonable?
Solari: Well, like inspections, the purpose of inventories is not to search for evidence of a crime. There are three recognized reasons for inventorying the contents of a vehicle. First, inventories are intended to protect the owner’s property; second, they’re also intended to protect law enforcement officers against false claim, maybe theft or destruction of personal property; and finally inventories protect law enforcement officers from any hazardous materials that might be inside of a vehicle.
Miller: Are inventories restricted to automobiles?
Solari: No. Think back on your military experience about what happen to Marines or Sailors who left their unit without permission - what we call UA (unauthorized absence) or AWOL (absent without leave). Also think about what happened after a Marine or a sailor was placed in pretrial confinement. Normally a senior sergeant would walk into that Sailor or Marine’s barracks room and inventory his personal effects.
Miller: Now let’s focus on inventorying vehicles. I’m interested in that. When can officers impound and inventory the contents of a vehicle?
Solari: First the vehicle has to be lawfully impounded. Officers don’t have complete discretion to just going around towing vehicles off the street, putting them in an impound lot, and inventorying their contents. The officer must have authority to pull that vehicle off the street. That authority might come from State law. For example, an officer may be able to impound a vehicle if it’s parked or abandoned in violation of State or Local law.
Another source of authority for impounding vehicles is pursuant to a community care taking function. Officers may have a duty to impound a vehicle for the safety of the property and the public.
Second, there has to be a standardized policy for the inventory and the officer has to follow that policy.
Miller: That sounds a lot like inspections that we just talked about.
Solari: It is. That standardized policy keeps the officer focused on the purpose of the inventory. Police officers aren’t vested with the discretion to determine the scope of an inventory search. That Standard Operating Procedure ensures that inventory searches won’t be used as a general means of just discovering evidence of a crime.
Miller: Does the policy have to be written?
Solari: No it doesn’t have to be written; however, the government has to prove that such a standardized policy exists and that the officer followed it. So a written policy is certainly the best way to show that.
Miller: You said that officers must follow the standard policy.
Solari: Right. Again, the purpose of the policy is to keep the officer focused on this exception to the PC and warrant requirement. So in essence the policy says, officer you’re only here to inventory the contents of the car. It also tells the officer where he can look.
Miller: Where might a policy allow officers to look?
Solari: Well where might somebody normally keep valuables? The passenger compartment, the glove compartment, center console and the trunk are places where one might store valuables; however, if you think about it, it’s not reasonable to rip open the door panels or look inside the heating vent during an inventory because those aren’t places where a person would normally keep valuable objects.
Miller: And what about like a briefcase that was closed?
Solari: Well here’s the value of the SOP. If you’re an officer and you’re asking yourself whether you can open and inventory the contents of the briefcase, my question right back is this, “What does your policy say?” Standardized policies may allow officers to open containers like briefcases in order to inventory their contents.
Miller: Where should the inventory take place?
Solari: Normally officers are going to inventory the contents of a vehicle at the impound lot; however, the inventory can occur on the street at the time the officer decides to impound that car.
Miller: Okay, now let’s assume that we’re police officers and that we have an arrest warrant for Mr. Suspect. The warrant is for credit card theft. One day we’re on patrol and we see Mr. Suspect driving down the road in a sedan type vehicle. We pull Suspect over, and we arrest him. Of course we will do a Search Incident to Arrest Our Search Incident to Arrest will include the suspect’s person and those areas within his immediate control which is the passenger compartment of the vehicle, like under the seats, glove box, console and bags or briefcases. The Search Incident to Arrest does not include the trunk, as I recall. The trunk is outside the suspect’s immediate control. However, can’t I get into that trunk anyway and look around for stolen credit cards or anything else that might tickle my fancy, and just call it an inventory.
Solari: No, we can’t do that. We can’t impound and inventory a car in bad faith just as an excuse to search for evidence. Let’s go back through the requirements for a valid inventory.
First the vehicle has to be lawful impounded. For example we can impound the vehicle pursuant to law for the safety of the vehicle or for the safety of the public. So before we pop the trunk to do an inventory, either on the side of the road, at the scene of the arrest, or back at the impound lot, we need to ask ourselves, “What’s our authority to take (impound and/or inventory) this car?” For example our statute might authorize an impound and inventory of a vehicle when the driver’s taken into custody on a city street.
Miller: And once we’ve got the authority, we’ve got to follow the SOP; right?
Solari: Right. That’s the second requirement. There must be a standardized policy for the inventory and we as the officers must follow it. The standardized policy should give us some factors to consider in deciding whether to impound and inventory the car. One might be that the car’s going to obstruct the flow of traffic if we leave it at that scene of arrest. Another factor to consider is whether we can leave the car there without the risk that it’s going to be vandalized. If the car is in a high crime area then we’ll probable need to tow it. On the other hand we might not need to tow the car if there’s a passenger who was with Mr. Suspect who’s willing and capable of driving the car back to the suspect’s house.
Finally, that SOP’s going to tell us where and what we can inventory. So in deciding whether we can open packages or containers, the policy’s going to guide us there.
Miller: Suppose we lawfully impound the vehicle, we inventory its contents according to the policy, and find stolen credit cards in the trunk of suspect’s vehicle.
Solari: Well the evidence that you’re describing sounds like it’s in plain view. Remember the requirements for the Plain View Doctrine: we can see it from a place where we have a right to be; it’s incriminating nature is readily apparent; and, finally we can lawfully access the evidence. The evidence should be in plain view if the credit cards are on the floor of the trunk or inside a briefcase in the trunk assuming our inventory policy allows us to access those places.
Miller: And if we find the credit cards by tearing up the floor panels of the trunk?
Solari: Nah; the inventory doesn’t give us a right access under the floor panels of the trunk so we’re going to be missing a critical element of plain view there - that lawful right of access.
Miller: Alright let’s take a break. When we come back we’ll talk about the Exclusionary Rule exceptions, but why don’t you remind our listeners of that website again.
Solari: Alright. If you want to hear some more of our 4th Amendment Podcast or some of our Hot Issues Podcast you can find them at www.fletc.gov/training/programs/legal-division/podcasts.