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Administrative Searches – Inventory – Existence of Police Policy Goes to Search, not Seizure

State v. Timothy T. Clark, 2003 WI App 121
For Clark: Rodney Cubbie

Issue/Holding: Existence of, and compliance with, a police policy on conducting an inventory search relates only to the reasonableness of the search and not the seizure of the item searched:

¶11. Here, the State contends that the search of the vehicle was a valid inventory search. “Although an inventory search is a ‘search’ within the meaning of the fourth amendment, it is also a well-defined exception to the warrant requirement.” State v. Weber, 163 Wis. 2d 116, 132, 471 N.W.2d 187 (1991) (citations omitted). Analysis of an inventory search involves a two-step process: (1) analysis of the reasonableness of the seizure in the first instance; and (2) analysis of the reasonableness of the inventory search. See id. at 133. Clark challenges the first step and concludes that the police had no right to tow the vehicle.

¶12. The State makes much of the written “safekeeping tow” policy as well as the unwritten “unsecured vehicle” policy. The State cites Thompson v. State, 83 Wis. 2d 134, 265 N.W.2d 467 (1978), for the proposition that the seizure was reasonable and permissible. The Thompson court stated: “The United States Supreme Court has held that inventory searches pursuant to ‘Standard police procedures’ are reasonable and permissible.” Id. at 139-40 (citing South Dakota v. Opperman, 428 U.S. 364, 372-73 (1976)). The State, however, has applied the reasoning of Thompson to the wrong step of the inventory search analysis – both Thompson and Opperman deal with the reasonableness of the inventory search; i.e., was the decision to conduct an inventory search made pursuant to standard police operating procedures? See Thompson, 83 Wis. 2d at 140 (“[I]t was standard police operating procedures to inventory an automobile whose driver has been arrested, before towing it….”); Opperman, 428 U.S. at 372 (“[I]nventories pursuant to standard police procedures are reasonable.”). These cases, however, do not deal with the reasonableness of the seizure of the vehicle in the first instance; i.e., was the decision to impound and tow the vehicle reasonable?

¶13. Moreover, the Opperman court explicitly stated that each search must be independently evaluated applying the Fourth Amendment standard of reasonableness…

¶14. Thus, with respect to the Milwaukee Police Department’s policies, first and foremost, we conclude that compliance with an internal police department policy does not, in and of itself, guarantee the reasonableness of a search or seizure. Rather, the constitutionality of each search or seizure will, generally, depend upon its own individual facts. See State v. Guy, 172 Wis. 2d 86, 100, 492 N.W.2d 311 (1992) (stating that the court would not place a constitutional imprimatur on the Milwaukee Police Department’s policy of automatically frisking everyone present for weapons while executing a search warrant for drugs in a private residence, but rather, that the constitutionality of each such frisk would continue to depend upon its unique facts)

As to reasons for existence and adherence to established inventory policy, see e.g. State v. Johnson, 2003 NY Int 160, 12/22/03:

An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched. The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (Florida v Wells, 495 US 1, 4 [1990]). As the Supreme Court has stated, “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence” ( id.). To guard against this danger, an inventory search should be conducted pursuant to “an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably” (People v. Galak, 80 NY2d 715, 719 [1980]). The procedure must be standardized so as to “limit the discretion of the officer in the field” ( id.). While incriminating evidence may be a consequence of an inventory search, it should not be its purpose.

See also U.S. v. Proctor, DC Cir No. 05-3132, 6/19/07 (“if a standard impoundment procedure exists, a police officer’s failure to adhere thereto is unreasonable and violates the Fourth Amendment. … The Fourth Amendment requires, again, that an inventory search be reasonable and, if a standard procedure for conducting an inventory search is in effect, it must be followed.”); State v. Coleman, Or App No. A117104, 11/10/04 (“A valid administrative search must be conducted for purposes other than law enforcement, pursuant to a policy that is authorized by a politically accountable lawmaking body. … Furthermore, in order to be valid, such a policy must limit the discretion of those responsible for conducting the search and the scope of the search authorized must reasonably relate to its purpose.”); State v. Eldridge, Or App A123728, 8/16/06 (impoundment policy that vehicle “shall be completely searched and inventoried” overboad); State v. Nordloh, Or App No. A121786, 9/27/06 (follows Eldridge, with inventive twist, that overly broad inventory policy analgous to Commerce Clause challenge: “The power to inventory a vehicle’s contents exists only pursuant to a properly authorized policy… Because the Grants Pass DPS inventory policy requires an officer to open all closed containers in an impounded vehicle, it is not reasonably related to protecting property or eliminating false claims, and thus the purported inventory in this case pursuant to the policy was in fact a warrantless and nonconsensual search that required suppression of the evidence.”).

Keep in mind: “In determining the propriety of an inventory search, the threshold question is whether the impoundment itself was proper,” Taylor v. State, Ind SC No. 49S04-0410-CR-457, 2/14/06.

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