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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.