Warrant Exceptions - Inventory

OVERVIEW

An inventory is a valid exception to the warrant requirement of Article I, section 9.  However, to be a valid inventory the applicable policy—and the search conducted pursuant to it—must satisfy the following elements:

1. The vehicle must be lawfully impounded;
2. The inventory must be conducted pursuant to a properly authorized policy promulgated by a politically accountable body;
3. The inventory policy must be designed and administered such that the officer executing it retains no discretion; and
4. The officer executing the inventory must not deviate from the dictates of the policy.

State v. Atkinson, 298 Or. 1 (1984).

Furthermore, Atkinson also recognized that the inventory exception serves only three legitimate purposes: (a) Protection of the person’s property while it is in police custody; (b) Reduction or elimination of false claims against the police for lost property; and (c) Protection against possible injury from impounded but uninventoried property. Therefore, defendants may also frame a broader inquiry into whether the inventory policy in question is narrowly tailored to serve those purposes. See, e.g., State v. Eldridge, 207 Or. App. 337 (2006).

Drawing from that “overbreadth” inquiry—and the recognition that Article I, section 9 does not “permit police to indiscriminately rummage through closed containers”—courts also have fashioned four general rules governing the search of closed containers found during the execution of an otherwise justifiable inventory:

1. Officers must assume that the contents of a closed container are consistent with what the container is designed to carry;
2. An inventory ordinance may require officers to open containers that are designed to contain valuables;
3. The ordinance at issue must eliminate the officer’s discretion whether or not to open closed containers; and
4. If the officer is required to open any closed containers, the ordinance must eliminate discretion as to which of those closed containers to open.

State v. Stone, 232 Or. App. 358 (2009); see also State v. Silva, 170 Or. App. 440 (2000) (“Thus, the state’s only position on appeal is that we should overrule our previous cases under Article I, section 9, of the Oregon Constitution, and allow the opening of all closed containers during an inventory. We decline the state’s invitation, and continue to adhere to our prior decisions.”).

ARTICLES

• Dan Hubner:  Overview of Vehicle Inventories (June 2010).

CASE LAW

• Officer’s Subjective Knowledge/Purpose
• Impoundment of Vehicle Terminates Availability of Automobile Exception
• Preservation
• “Designed to Carry Valuables”
• Limiting Discretion
• Breadth of Inventory Policy
• “Within Defendant’s Possession”
• Authority from a “Politically Accountable Body”
• Acting Within the Constraints of the Inventory Policy
• “Inevitable Discovery” by way of Inventory

Officer’s Subjective Knowledge/Purpose

• State v. Brown, 229 Or. App. 294 (2009) (Officer need not testify as to his subjective belief that he was acting pursuant to a valid inventory policy).

• State v. Nelson, 181 Or. App. 593 (2002) (An officer’s subjective knowledge and purpose for opening items is irrelevant while conducting an otherwise lawful inventory search ).

• State v. Gaunce, 114 Or. App. 190 (1992) (“The dispositive factual issue in this case is whether Payne would have had defendant’s car impounded, regardless of his suspicions. If his suspicions influenced his decision, then his decision initiated an investigative search for crime evidence. If that is the case, then defendant’s car was not lawfully impounded.”).

Impoundment of Vehicle Terminates Availability of Automobile Exception

• State v. Resler, 163 Or. App. 328 (1999) (If the officer has already impounded a vehicle, any exigency created by the vehicle’s mobility has dissipated and the automobile exception no longer applies).

Preservation

• State v. Joseph, 238 Or. App. 152 (2010) (Objecting to the opening of a coin purse is not sufficient to preserve a challenge to the opening of a folded piece of paper within that purse).

• State v. Brown, 229 Or. App. 294 (2009) (Objecting to the application of an inventory policy to the case at hand is not sufficient to preserve an objection to the judge taking judicial notice of the policy’s existence).

• State v. Rutledge, 162 Or. App. 301 (1999) (“We conclude that by challenging the validity of the inventory under Article 1, section 9, below, defendant preserved his argument on appeal that the ordinance does not authorize the inventory.”).

“Designed to Carry Valuables”

• State v Keady, 236 Or. App. 530 (2010) (A bottle of fish oil capsules is not designed to carry valuables.  Thus, even if the officer believes the bottle contains valuables, he may not open the bottle pursuant to an inventory search where the inventory policy clearly states that an officer is only authorized to open containers “designed to hold valuables”.  When the officer is acting outside of the inventory policy, it’s not a valid inventory search).

• State v. Dean, 227 Or. App. 342 (2009) (Officer was not authorized to open a folding scale found during the course of an otherwise valid inventory).

• State v. Swanson, 187 Or. App. 477 (2003) (Plastic make-up container was not designed to carry valuables.  The officer did not testify that the container had such a design, and the judge was not authorized to make implicit findings concerning the design where the container was not introduced into evidence).

• State v. Rutledge, 162 Or. App. 301 (1999) (“the leather container, resembling a coin purse, found in the vehicle between the front passenger seat and the center console was a container in which an officer could objectively and reasonably conclude that money or small valuables were typically and generally stored. The officer felt what he believed to be a wallet inside the container. Although the word “Norelco” on the container could indicate a different purpose for the container, the trial court found that the appearance of the word on the container was obscure and not readily apparent.”).

• State v. Perry, 298 Or. 21 (1984) (Two suitcases in defendant’s possession were not objectively designed to carry valuable and therefore were impermissibly opened during inventory).

• State v. Keller, 265 Or. 622 (1973) (Fishing tackle box did not objectively appear as though it was designed to carry valuables, therefore it could not be opened during inventory).

Limiting Discretion

• State v. Stone, 232 Or. App. 358 (2009) (Section E of the applicable Beaverton ordinance implicitly required that an officer open a container if the officer “reasonably believes that the closed container contains valuable or dangerous personal property.”  Therefore, the policy properly eliminated the officer’s discretion as to whether to open a large black drawstring bag he found under the driver’s seat that he reasonably believed contained valuable personal property).

• State v. Haney, 195 Or App 273, modified on recon, 196 Or App 498 (2004) (The mandate that officers complete an accident report pursuant to ORS 810.460 does not allow for an inventory search:  ”Neither the statute nor the DMV form limits officer discretion about whether to conduct searches in order to prepare accident reports.  There also is no evidence of guidelines limiting officer discretion regarding the scope of searches.”).

Breadth of Inventory Policy

• State v Jorgensen (The state concedes in this per curiam case that removing the console of a car (located between the front seats) exceeds the permissible scope of an inventory search. Thus, the motion to suppress should have been granted.)

• State v. Kay, 227 Or. App. 359 (2009) (“The state concedes that the inventory policy at issue, which permits an officer to open all closed containers, is too broad to satisfy Oregon constitutional requirements.”).

• State v. Rottenkolber, 221 Or. App. 503 (2008) (“He contends that the inventory policy was unlawful in that it authorized police to search all closed containers, not just those designed for, or likely to hold, valuables. The state concedes that the policy is unlawful and that the trial court erred in denying the motion to suppress on that ground.”).

• State v. Nordloh, 208 Or. App. 309 (2006) (“The power to inventory a vehicle’s contents exists only pursuant to a properly authorized policy. Whether the policy itself is properly authorized does not depend on the circumstances of the application of the policy to a particular defendant. It instead depends on the reasonable relationship between the conduct permitted under the policy and the government’s interests in protecting property, eliminating false claims, and preventing injury.”  Here, a policy authorizing a search of “all luggage and other containers” is does not reasonably relate to those purposes.).

• State v. Eldridge, 207 Or. App. 337 (2006) (Policy mandating that all cars “shall be completely searched and inventoried prior to being towed” did not provide constitutionally adequate guidance.  Therefore, the policy was impermissibly overbroad).

• State v. Whillhite, 110 Or. App. 567 (1992) (Inventory policy was impermissibly overbroad—”To approve a policy because it is so general that an officer must look everywhere he can think of files in the face of the requirement that the inventory be ‘conducted according to standardized criteria’… or ‘established routine.’”).

• State v. Sparks, 228 Or. App. 163 (2009) (“‘Inventorying’ the contents of a purse that a vehicle’s occupant removes from the vehicle serves none of the purposes justifying the exception to the warrant requirement — indeed, the purposes would be served by encouraging occupants to remove small containers — and no policy purporting to authorize such action is valid.“).

“Within Defendant’s Possession”

• State v. Kountz, 229 Or. App. 538 (2009) (Purse found within defendant’s car was properly deemed within his possession such that it could be searched pursuant to the applicable vehicle inventory policy).

• State v. Connally, 339 Or. App. 583 (2005) (The defendant, who was standing next to the car at the time of the arrest, had dominion and control over the contents of the car at that time.  Therefore, a policy authorizing the inventory of valuable items in a person’s possession after arrest also authorized the search of his fanny pack in the car).

• State v. Ray, 179 Or. App. 397 (2002) (A gym bag on the floor of the vehicle in which defendant was a passenger was not within his “possession” for the purposes of an inventory relating to property on a defendant’s person; instead, that property was governed by the inventory policy relating to vehicles).

Authority from a “Politically Accountable Body”

• State v. Petri, 214 Or. App. 148 (2007) (“The state’s inventory argument likewise fails because, as defendant points out, there was no evidence that an applicable inventory policy would have required opening the sunglasses case. No inventory policy was in evidence; rather, the only evidence on the issue was Durbin’s testimony that, after arresting defendant on the warrant, he would have searched defendant further ‘to inventory the contents of his person prior to placing him in the police vehicle.’”).

• State v. Boone, 327 Or. 307 (1998) (Authority to inventory may be implied from authority to impound granted by politically accountable body where the authorizing language supports such a reading.  When that is the case, the agency acting upon that implicit authority may adopt its own policies regarding the conduct of such inventories).

• State v. Herrin, 323 Or. 188 (1996) (Officer’s testimony that he conducted an inventory pursuant to Salem police policy was insufficient to establish what politically accountable body promulgated that policy).

• State v. Custer, 126 Or. App. 431 (1994) (Article I, section 9 requires that any promulgation of an inventory policy begin with legislative authority—”Before executive agencies, such as the Dallas police department, may impound and inventory vehicles, ‘they must have explicit authority from outside the executive branch.’”).

Acting Within the Constraints of the Inventory Policy

• State v. Bostwick, 226 Or. App. 57 (2009) (Rejecting defendant’s argument that search of the passenger compartment was not permitted by the applicable inventory policy).

• State v. Sparks, 228 Or. App. 163 (2009) (A policy authorized only the inventory of items in the “interior of the vehicle”—”The police officer searched defendant’s purse when it was not in the ‘interior of the vehicle.’ It was outside of the vehicle, on defendant’s person. The inventory, then, was beyond the authority established by the policy and was therefore invalid.”).

• State v. Brown, 229 Or. App. 294 (2009) (Search of defendant’s pockets and wallet was a valid application of an inventory policy applicable to inventories of persons taken into custody).

• State v. Dean, 227 Or. App. 342 (2009) (The applicable inventory policy did not authorize officer to open a folding scale found during the course of an otherwise valid inventory).

• State v. Bernabo, 224 Or. App. 379 (2008) (The applicable policy required officers to ask the owner of the vehicle to remove all items of value from the vehicle before an inventory search took place.  By failing to do so, the officers impermissibly deviated from that policy).

• State v. Guerrero, 214 Or. App. 14 (2007) (Policy requiring officers to inventory money and jewelry did not authorize officers to open a black leather case designed to house a Panasonic light scope).

• State v. Tschantre, 182 Or. App. 313 (2002) (A cell phone case with gaps in it through which officers could see and the phone could be moved was not a “closed container” within the definition of the applicable inventory policy.  Therefore, the officer did not exceed the policy’s restrictions on opening closed containers when he searched that item).

• State v. Ray, 179 Or. App. 397 (2002) (A gym bag on the floor of the vehicle in which defendant was a passenger was not within his “possession” for the purposes of an inventory relating to property on a defendant’s person; instead, that property was governed by the inventory policy relating to vehicles).

• State v. Corey, 123 Or. App. 207 (1993) (Under the circumstances, an officer’s decision to impound and inventory a vehicle was reasonable within the policy’s requirement that impounding only occur where “no other reasonable disposition of the vehicle” is available).

“Inevitable Discovery” by way of Inventory

• State v. Medinger, 235 Or. App. 88 (2010) (Two grounds prevented inevitable discovery argument: (1)”Here, the state did not produce any evidence that a politically accountable authority promulgated the inventory policy. Barringer testified about his general understanding of how an inventory at the treatment facility worked. That testimony is insufficient to prove that a properly authorized inventory policy existed;” and (2) “Also, Barringer testified that an inventorying officer would have required defendant to place the contents of his pockets in a basket. Barringer’s testimony does not establish that a law enforcement officer at the treatment facility would have inspected the paystubs that defendant would have placed in the basket.”).

• State v. Hartman, 238 Or. App. 582 (2010) (Inevitable discovery-by-inventory did not apply to officer’s photographing and examination of boots to see if they matched imprint at crime scene because, even when the boots were seized as part of an inventory at the jail, the additional seizure was not routine inventory practice—“An inventory is not an investigative search.”).

• State v. Brown, 229 Or. App. 294 (2009) (Objecting to the application of an inventory policy to the facts of the case is not sufficient to preserve an objection to the existence of such a policy).

• State v. Petri, 214 Or. App. 138 (2007) (Rejecting inevitable discovery argument because “[n]o inventory policy was in evidence; rather, the only evidence on the issue was Durbin’s testimony that, after arresting defendant on the warrant, he would have searched defendant further ‘to inventory the contents of his person prior to placing him in the police vehicle.’”).

• State v. Mastin, 203 Or. App. 366 (2005) (Search of trunk justified where impoundment of vehicle was imminent because the driver had been driving without a license).

• State v. Weems, 190 Or. App. 341 (2003) (Where the record did not contain any evidence describing the county’s incarceration intake procedures, the state could not rely on the inevitability of an inventory search to justify the unlawful search of defendant’s pockets).

• State v. Ray, 179 Or. App. 397 (2002) (Where a gym bag was found on the floor of a vehicle, the proper inventory procedure to consult was the department’s policy regarding vehicle inventories rather than the policy regarding personal property found on the person of an individual taken into custody—”Assuming that the doctrine of ‘inevitable discovery’ applies here, it would apply to the ‘inevitable discovery’ of the gym bag in the vehicle in the course of an inventory of the vehicle. The vehicle inventory provisions of the inventory policy, however, prohibit the opening of closed containers such as the gym bag.”).

• State v. Johnson, 177 Or.App. 244 (2001) (Even if jail staff would have inventoried defendant’s clothes after his arrest and seized them temporarily for that purpose, the state had failed to show that the jail staff would have seized that clothing for all the purposes of a criminal investigation, such as forensic testing).

• State v. May, 174 Or. App. 560 (2001) (The state may not rely upon a constitutionally infirm inventory policy as the basis for an inevitable discovery argument).

• State v. Herrin, 323 Or. 188 (1996) (Inevitable discovery-by-inventory did not apply to search of gym bag in the trunk of defendant’s car.  First, no evidence established who promulgated the inventory policy.  Second, the officer’s testimony that he would have “examined the contents” of the trunk did not satisfy the requisite level of specificity—”[T]he evidence does not demonstrate that the closed gym bag would have been opened as part of the inventory. ‘Examining the contents’ of the back seat could mean simply listing a gym bag in the inventory.”).

• State v. Seal, 138 Or. App. 693 (1996) (“The evidence in the record supports the trial court’s finding that the Bergin’s search of defendant was justified by a concern for his own safety. The record also supports the court’s finding that, based on the county sheriff’s rules and procedures, the drugs inevitably would have been discovered when defendant was booked into the county jail.”).

• State v. Mituniewicz, 125 Or.App. 41 (1993) (Holding that the state’s inevitable discovery argument failed where “the state presented no evidence that the booking inventory would have inevitably included inspection of the contents of the paper” in the defendant’s pockets, which was partially folded and held heroin).

• State v. Redmond,114 Or.App. 197 (1992) (“[E]ven assuming that the wallet was seized pursuant to a valid inventory procedure, [the officer's] testimony that there would have been a `thorough search’ of the wallet presented only his impressions of the inventory procedure and did not establish what the Clackamas County Jail’s policies were.”).

• State v. Atkinson, 298 Or. 1 (1984) (Establishing test for inevitable discovery-by-inventory, and then remanding to the trial court for appropriate findings.  The court also notes that the need for inventories exists for three essential reasons: (1) protection of the person’s property while it is in police custody; (2) reduction or elimination of false claims against the police for lost property; and (3) protection against possible injury from impounded but uninventoried property).