Inventory Searches

• Author: by Major Wape Anderson
• Pages: 03

1. INTRODUCTION

   The Supreme Court recognized the inventory search' as an exception to the warrant requirement of the fourth amendmentZ inSouthDakota u Opperman.' Inventory searches had been upheld as conatitutional, how-ever. by a malority of the state- and federal courts,' to include military courts,' prior to the Court's decision in Opperman.

   One might expect a position that had been adopted by a majority of state and federal courts to find its way inta the Supreme Court reporters without much fanfare Such wm not the case The Oppeiman decision was the subject of much achoiarly criticism. The cnticism focused principally on the arguably transparent justifications for the inventoly excep-tion advanced by the Court'and on the Court's failure to establish any

   "Inventory pe8rch.l LI redly B misnomer m that "m~eniory" connotea B hemgn care. fakvlg function where8s"aearch.l connates an miesfigatne actlvlty underlsken fa UOIOVBI ermearltnfrvltn

   'OS Canat, amend IV'428 US 364 11976)'Id at371'Id st371-72WmtedStatasr Ksimercrak. 16C M A 594.37Chl

   R 214(1967)'The government vltereeu smeulated ~n Oppermnn and later m IUlnola Lsfayerte. 162US 640 (19831, rnclude pmfeetlon of the owner's pmpeny from theft and low profeetian 01 the pnbs agamrt diapvtes over lost and Stolen property and false ckm and prateetmn of the pice and pubbc from dangerous mms that may he cancealed VI &per$ that the pohce fake lnta custody The crltlcism lereled sf there pstdlcstlons 18 in the sbefrsei per. s ~ ~ i i v e

   Set. e 8 , W bfave. Search and Seuure A Treatlee on rhe'Fovrth Amendhem ,"/,Cl?S/

   ~ , _l.".",

   The eritica contend that pmtectlon of personal property 1% B timaparent ,ustlfutmn far 8n inrentory rn malt cams If the owner of the propert) 16 preaent 81 the fme the property LS taken mta pohcs custody. he can give apwific mifr~~iionbon how he rants h a property card far. a general menmy under thee cmumst~n~es

   I& ~meceseary If the property has been abandoned UT left VI B parked automobile it 18 unU& that there are m y vdu. ahle,rntheavramohlleuarththetrovble ofanmventory andevendthereare thepahe's duty to e m for property nhould not be $mater than that ai the owner The safety afforded hy m mpavnd lot should meet the polee's mnlmal le$al ohllgatlana m care far the prop. erty The only fma an mvenmry 18 iusnfied to pioteet personal property the cntlcs con. fend irwhen the owner 1s incspacltatd Reame).Roeraluofing the Vehrblnuento?y. 19

   321. 335 119841, h'ote, WoXhrmntissi Searches and Seuvr.8 01 Automobiis Crlm L Bull

   guidelines or Lrnitations on the scope of mventorm.' Botwithstandlng the criticism, in its most recent decision on inventory searches, Ilhno~s o Lofao)ette? the Court continued to justify them on the grounds relied on in Opperrnanboand declined to wnte B "police manual"" on preferred methods of conducting inventories

   The Supreme Court'a decmonr have resuited m disagreement and can. fusion over what standards should be applied in determining whether a particular inventory is "reasonable" under the fourth amendment While many ~ssues are left unresolved. the direction of the Court seems clear This article will examine the development of the inventory exception to the warrant requirement of the fourth amendment and analyze the Supreme Court'a most recent posmon. Finally, the article will diacuss the importance of the inventory m the military and will critically examine the military courts' development of the law in this area.

   ll. EVOLUTION OF THE INVENTORY: PRESTON THROUGH CADY

   The practice of law enforcement agencies in conducting inventories onthe contents of automobiles that were impounded or otherwise in police custody was well established before the Supreme Court specifically sanc-

   19851 INVENTORY SEARCHES

   tioned the procedure in Opperman.la Likewise, law enforcement agen. cies routinely inventoried the personal effects of individuals who were being incarcerated before the procedure was addressed in Lufayette.'3 Notwithstanding the pervasive use of the inventory by police agencies, the Supreme Court did not consider the constitutionality of inventory searches until Oppernon even though there were earlier opportunities to do so.

   InPreston u. United States," decided in 1963, the Court arguably had its first opportunity to address the inventory question." InPreston. the petitioner and two companions were arrested for vagrancy a8 they sat in Preston's automobile. The three suspects were taken to the police station to be booked and the automobile waa towed to a garage. The policemen who arrested Preston and his companions subsequently went ta the ga. rage and conducted a search of the vehicle. They discovered two hand. guns in the passenger compartment and paraphernalia ~n the trunk" commonly used in burglaries and robberies. Preston was subsequently canvictedof conspiracy to commit robbery.>'

   The police who searched Preston's automobile had no warrant Indeed. they had neither probable cause nor a reasonable suspicion that they would frnd contraband or evidence of a crime. Their search was adminis. trative in nature. The government argued that the evidence was admis. sible on the theory that the Bearch was incident to the arrest." The Court rejected this argument by concluding that the search was tw remote in time and place to be a search incident to mest.ls The Court &d not ad. dreas the propriety of an administrative inventory of impounded auto. mobiles even though the issue was arguably presented by the facts.

   Even though the Piestan case gave no hint of the existence of an in. ventory or administrative search exception to the warrant requirement, Preston is significant to the development of the inventory exception be.

   "426 US af369,srrgmemili L~sue.supm nofeT.si565-66"h/arrtre, 462 U S at646 TheCavrt asid tha~ngranredcaifiararimfiuseasp heeswa

   of the frequency uilh uheh thrs LSPYP presenfed nself tu the pohee and the courts Id st643

   "376US 364(19631

   "The mvsntow issue wan not raised before the Supreme Court or before the appeuab court UnltDdSUfesv Sbkes.305FZd 172(6thClr 1962) Infrsmvlgthelssvehefarelho Court, however, Justice Black nd. "We mu6t m9ue whether the facts of thLI C B ~ P tre

   auch as CD fall within any of the exeeptlons m thêon~t~tuti~nalrvle that a search u,arrm

   mu8t be hsd Mare 8 search may be made " 376 U S at 367 lemphasm added) If the Covt wsd truly lmhg for Bn exeepbon mvl whxh thee IacC ma) have fallen. II mght have considered the mventow-type exception

   "Preaton,376US sr366-66

   "Id a1364

   "Id 81367 >*Id at368.

   XILITARY LAW REVIEW [Vol. 110

   cause it marks a frontier. After Preston the Court began to view war-rantless, noninvestigatary administrative searches as "reasonable" under the fourth amendment. Members of the Court who were critical of the Court's new direchon insisted that Preston had already marked the constitutional outer limits on searchea of this nature At the time Pres. ton was decided, the only warrantless searches of property lawfully in police custody that had been recognized by the Court were the ''auto-mobile exception,"" the search incident to B lawful arrest," the "plain view" exception,ld and the "exigent circumstances" exception?' Clearly then, upholding the constitutionality of naninvestigatary administrative searches represented yet another, and potentially far-reaching, exeeption to the warrant requirement of the fourth amendment

   After Preston the Court considered three cases involving noninvesti. gatary, administrative searcher.'5 In each case, the Court upheld the ad. missibility of evidence that was discovered in what were essentially m. ventory searches, but did not rule an the constitutionality of inventory searches generally

   In Cooper v Cahfomm,'B the petitioner was arrested for narcotics of. fenses. His automobile, which had been used to transport narcotics, wae seized as evidence and held in custody pending state forfeiture prweed. ings. The vehicle was searched one week after it was seized and evidence relevant to one of the charged herom transactions was discovered." The Court ruled that the search was "reasonable" under the fourth amend. ment but limited its holding to searches of vehicle8 held far forfeiture

   In justiffmg its decision, the Court noted that the forfeiture proceedings did not take place until more than four months after the automobile wa8 seized. The Court concluded that '"[>It would be un.reasonable to hold that the police, having to retain the car in their cu8.

   tody for such B length of time, had no right, even for their own protec. tion. to search it ''*s

   19~51 INVENTORY SEARCHES

   mile the Cooper decision was quite narrow in its application, it was a clear departure from PrestmsD The Court had clearly signaled that there were circumstances other than those previously recognized that would justify the warrantless search of property lawfully in police CUB.tody.

   The fallowing Tern, inHarns u. United States:'the Court upheld the admissibility of evidence that B police officer discovered in the course of inventorying m automobile that had been seized as evidence in a robbery investigation. The petitioner, Harris, was arrested as he entered hisautomobile. A cursory march af his vehicle incident to the arrest failed to reveal any evidence. The vehicle was taken to the police precinct where a police officer conducted m inventory of the vehicle's contents and condition pursuant to police department regulations. The purpose of the inventory was to secure valuables and to document, by use of B property tag, the circumstances of the impoundment After completing the inventory. the police officer opened the passenger door to roll up the window because it had started to rain. There, on the metal strip under the door, he saw a registration card belonging to the victim of the robbery.*' In nhng that this evidence was admissible, the Court specifically declined to rule on the constltutianality of the inventory procedure am thorized by the department's...