§ 15.01 AUTOMOBILE INVENTORIES

• Jurisdiction: United States

§ 15.01. Automobile Inventories¹

[A] General Principles

Generally speaking, and subject to more detailed explanation in subsection [B], a routine inventory search ("inventory," for short) of a lawfully impounded automobile is reasonable under the Fourth Amendment even if it is conducted without a warrant and in the absence of probable cause to believe — indeed, in the absence of any basis for believing—that criminal evidence will be discovered. Consequently, if police discover criminal evidence during a valid inventory, they may seize it pursuant to the plain view doctrine, and introduce it in a criminal prosecution.

The Supreme Court first recognized this "automobile inventory" search warrant (and probable cause) exception² to the Fourth Amendment in South Dakota v. Opperman.³In Opperman, the police towed O's unoccupied car to an impoundment lot after it had been ticketed twice on the same morning for being illegally parked in a tow-away zone. At the lot, a police officer observed a watch on the dashboard and other valuables sitting on the back seat and back floorboard. Pursuant to standard procedures in the jurisdiction, the police unlocked the car door, inventoried the contents of the passenger compartment, and removed them for safekeeping. During the inventory, the police discovered marijuana in the unlocked glove compartment. O was prosecuted for possession of this contraband.

The Opperman Court, 5-4, upheld the inventory search, notwithstanding the absence of probable cause or a warrant.⁴ The Court drew on the fact that an inventory is not part of a criminal investigation, but rather is an administrative act, i.e., a feature of a police department's community caretaking function. According to Opperman, the "probable cause" concept of the Fourth Amendment is a standard for use in criminal investigations and, therefore, is "unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations."⁵

With the probable cause component of the Fourth Amendment deemed irrelevant, the Opperman Court disposed of the need for search warrants in inventory cases by noting that the warrant requirement is "linked . . . textually . . . to the probable-cause concept." That is, because the Warrant Clause provides that "no Warrants shall issue, but upon probable cause," there is no need for a warrant if there is no reason for determining probable cause.

With the Warrant Clause out of the way, the Court looked exclusively at the Fourth Amendment reasonableness requirement. The Court stated that automobile inventories are a reasonable "response to three distinct needs": (1) to protect the police and the public from dangerous instrumentalities that might be hidden in the car; (2) to protect the police against claims of lost or stolen property; and (3) to protect the owner's property while it is in police custody. The Court concluded that these interests outweigh an owner's expectation of privacy in her automobile, which it described as "significantly less than that relating to one's home or office."⁶

Critics questioned the Opperman Court's analysis. First, before the terrorist attacks on the United States, critics contended that the assertion that inventories are needed in order to protect the safety of the police and the public from dangerous instrumentalities "border[ed] on the ridiculous."⁷ Even today, cars rarely contain dangerous instrumentalities; and, in any case, there is little reason to believe that an unsearched car sitting in an impoundment lot constitutes a greater danger to the community than a non-impounded car—which may not ordinarily be searched without probable cause or consent — that is parked on the street or in a public parking lot.

Second, protection of the police against claims of theft arguably does not justify warrantless inventories. Police departments, as involuntary bailees, usually have only limited liability for losses in such circumstances; and as concurring Justice Powell conceded in Opperman, inventories might not discourage false claims, because a car owner could fraudulently assert that an object was stolen prior to the inventory, or was purposely or negligently left off the inventory list.

Third, automobile inventories supposedly protect the owner's property from theft. In fact, of course, it is the act of securing the belongings, not the inventory itself, that reduces the risk of loss. It is unclear that the inventory process provides greater protection than the simpler and less intrusive procedure of rolling up the windows of an impounded car, locking its doors, and placing it in a secure place. Moreover, if the police are going to invade a car owner's privacy in order to protect her property, critics maintain that it is not unreasonable to suggest, as the dissenters did in Opperman, that an inventory should only be conducted after "the exhaustion and failure of reasonable efforts . . . to identify and reach the owner of the property in order to facilitate alternative means of security or to obtain [her] consent to the search." Since Opperman was decided, however, the Court has expressly discounted the relevance of alternative means of protecting a car owner's property from theft. It has stated that "[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative 'less intrusive' means. . . . [The Court is] hardly in a position to second-guess police departments as to what practical administrative method will best deter theft. . . ."⁸

[B] The Inventory Exception: In Detail

[1] Administrative Non-Pretextual Nature of the Search

In upholding automobile inventories, the Supreme Court has noted at least twice that the inventories in question were true administrative searches, and not subterfuges for criminal investigations. A plausible implication from this is that evidence found during an inventory is inadmissible in a...