State v. Richards , 26 Utah 2d 318 ( 1971 )

CALLISTER, Chief Justice:

Defendant appeals from his conviction, upon a jury verdict, of the crime of burglary in the second degree. He asserts the trial court erred in its denial of a motion to suppress certain evidence which was obtained by a warrantless seizure and subsequent search of his truck by the police.

On the morning of December 18, 1969, Officer Fife, a deputy sheriff, went to the residence of defendant in Salt Lake City to serve a warrant of arrest. Officer Fife was accompanied by three other policemen. Upon arrival at the location, Deputy Fife observed a panel truck parked directly across the street from the defendant’s home; he went over and looked through the rear window of the vehicle and saw a rifle, a television and two tool boxes. The police then proceeded to defendant’s door and arrested him on the basis of the warrant.

Upon leaving the house, the police queried whether defendant owned the truck; he responded affirmatively, the officer announced he was impounding the truck as evidence. Defendant asked why, and the officer stated that he suspected that it had been used in another crime. The officer requested the keys; defendant claimed he didn’t have them. The police conducted a search of defendant’s person and located the keys in a watch pocket. The police gave defendant a choice of having the truck towed or permitting an officer to drive it. Defendant elected the latter choice.

The vehicle was driven to the tunnel by the main entrance of the jail. Five or ten minutes after arrival, the police opened the rear doors of the truck to inventory the contents; they immediately removed the inventoried items to the “evidence bag” of the sheriff’s office.

The two tool boxes and the rifle were introduced in evidence in the instant action. Upon a hearing of the motion to suppress, Deputy Fife testified that at the time he removed the items from the truck and placed them in the evidence room, he had no knowledge either that the items were stolen or of the occurrence of the burglary that is the subject of the instant action. Officer Fife testified that he seized the truck because he believed that it was involved in another crime; he did not see anything in the vehicle which was involved in the crime for which defendant was arrested. He testified that his purpose in seizing the truck was for the vehicle itself, its identity, color, and type. He further testified that the police never made out an impound report on the vehicle or delivered it to the impound lot; the truck was released two days after seizure. The record further indicates that defendant was never near the vehicle at the time of arrest and that he never consented to its search.

The trial court ruled that the motion to suppress was denied on the ground that the car was seized because the officer thought it was involved in another offense, and the subsequent search was for inventory purposes and not to fasten upon the contents of the vehicle in connection with this offense.

In State v. Criscola,¹ this court formulated the following standard:

The question to be answered is whether under the circumstances the search or seizure is one which fair-minded persons, knowing the facts, and giving due consideration to the rights and interests of the public, as well as to those of the suspect, would judge to be an unreasonable or oppressive intrusion against the latter’s rights. * * *

The crucial issue of this case is whether there was a justification for this seizure of the truck as evidence of a crime in plain sight on a public street.

Defendant urges that at the time the police seized the truck and subsequently searched it, there was no probable cause to believe that the truck was evidence of a crime. Under such facts and circumstances this warrantless search and seizure was unreasonable and contravened the Fourth Amendment.

The State concedes that the seizure and subsequent search was not incidental to an arrest, but justified its action under Chambers v. Maroney.² In the Chambers case the court stated that where the search that produced the incriminating evidence was made at the police station some time after the arrest, it cannot be justified as a search incident to an arrest. The court cited the principle that once an accused is under arrest and in custody, then a search made at another place, without a warrant, is not incident to an arrest. The court observed that there were alternative grounds justifying the search in Chambers, namely, the police had probable cause to believe that the robbers, carrying guns and the fruits of the crime, had fled the scene in a light blue compact station wagon, which would be carrying four men, one wearing a green sweater and another wearing a trench coat. Under such circumstances, the police had probable cause to arrest the occupants of the station wagon that the officers stopped, and they had probable cause to search the car for guns and stolen money. The court stated:

In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.³

The court concluded that based on the facts in Chambers, the vehicle could have been searched on the spot when it was stopped since there was probable cause to search, and it was a fleeting target for a search. The probable-cause factor and the mobility of the car still existed at the station house and therefore the warrantless search and seizure was not unreasonable.

In Coolidge v. New Hampshire,⁴ the court observed that the doctrine of Chambers v. Maroney was applicable whenever the police would be justified in making a legal contemporaneous search at the time of arrest; they may also seize the car and take it to the police station and search it there. The underlying rationale of Chambers is that exigent circumstances justify a warrantless search of an automobile stopped on the highway, where there is probable cause, because the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. The opportunity to search is fleeting.

From the foregoing it is apparent that Chambers v. Maroney is not applicable in the instant case. In Coolidge v. New Hampshire,⁵ the State sought to sustain the legality of a seizure and search of an automobile on the ground that the vehicle, itself, was evidence of a crime in plain view on the accused’s property. Although members of the court expressed divergent opinions concerning the necessity of additional factors, the majority definitely affirmed the principle that the police must have probable cause to seize the vehicle. If the seizure be illegal, it is unnecessary to consider Cooper v. California,⁶ wherein the court held that the reason for and nature of the custody of the vehicle by the police may constitutionally justify the search.

Justice White in his dissenting opinion in Coolidge v. New Hampshire,⁷ cites two principles which are controlling in the instant action: First, under the Fourth Amendment, effects may not be seized without probable cause; second, a warrant is not needed to seize an automobile which is itself evidence of a crime and which is found on a public street.

In the instant action, the sole justification for the seizure was the expressed belief of Officer Fife that the truck was involved in another crime. The record is void of any facts or circumstances to support this belief and therefore will not presently support a finding of probable cause to seize the truck. The judgment of the trial court is reversed, and this cause is remanded for a new trial.

TUCKETT and HENRIOD, JJ., concur.

1 . 21 Utah 2d 272, 274-275, 444 P.2d-517, 519 (1968).

2 . 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

3 . 399 U.S. 51, 90 S.Ct. 1981.

4 . 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, 578-579 (1971).

5 . Note 4, supra.

6 . 386 U.S. 58, 61, 87 S.Ct. 788, 17 L.Ed. 2d 730, 733 (1967).

7 . 90 S.Ct. 1975, at page 610 of 29 L.Ed.2d.