People v. Romero , 13 Brief Times Rptr. 100 ( 1989 )

ERICKSON, Justice,

dissenting:

I respectfully dissent. The majority erroneously focuses on whether the flashlight inspection of Romero’s car was a search and misapplies the automobile exception to the search warrant requirement. In my view, the determinative facts center on the circumstances under which the car was secured at the scene of the arrest and the time at which Officer Fletcher acquired probable cause to search the car. Because the police officers secured the car and left it at the scene of the arrest pursuant to an agreement with the defendant, and did not acquire probable cause to believe firearms were in the car until long after the arrest of Romero, there was no exception to the fourth amendment’s requirement that a search warrant be obtained. Accordingly, I would affirm the trial court’s order suppressing the evidence seized during the illegal search of Romero’s car.

The record reveals that after Romero had failed the roadside sobriety tests, he was asked by a police officer whether he wanted his car towed to a lot or secured and left at the scene. Romero replied that he wanted the car left at the scene, so the police locked the car and returned the keys to Romero. When the police secured the car and returned the keys to the defendant, the police abandoned their privilege to conduct a warrantless search of the car’s interior under the search incident to arrest or inventory search exception.

When Romero arrived at the police station, the police took possession of Romero’s personal property, including his car keys, before he was jailed. While Romero was in jail and trying to arrange bail, Officer Fletcher overheard him tell his bail bondsman that there were firearms in the car. A few minutes later, Romero said to Fletcher, “Lady, if you only knew what I had in that car.” It was upon hearing Romero’s two statements that Fletcher first acquired probable cause to believe that the car contained firearms. At that time the vehicle was secure at the site of the arrest, as agreed to by the police officers. It was locked, the keys were inventoried in the police property locker, and Romero was in jail.

Upon hearing Romero’s statements, Officer Fletcher retrieved Romero’s car keys from the property locker and returned to the scene of the arrest. Once there, Fletcher performed a flashlight inspection of the car’s interior and noticed what appeared to be the butt of a pistol partially hidden under an arm rest. Fletcher radioed her discovery to a police sergeant and requested a tow truck be sent to tow the vehicle back to the city pound. While Fletcher was waiting for the tow truck, she unlocked the car to “prepare an inventory incidental to the tow.” Fletcher testified that she did so in order to have a record of the car’s contents. Romero contends that Fletcher’s inspection and entry into the car without a warrant violated his fourth amendment rights.

A warrantless search of a vehicle is per se unreasonable under the fourth amendment unless the search falls within one of the recognized exceptions to the warrant requirement. See Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The district attorney argues that the search in this case falls within the automobile exception to the warrant requirement. The majority agrees and holds that because Fletcher had probable cause, a warrant was not required to search the car.

Where there is probable cause to search a car, the automobile exception to the warrant requirement permits a search without a warrant. The majority cites California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), as support for its assertion that the automobile exception is applicable to the present case. See maj. op. at 1227, 1228. The cases cited involve situations in which the police had probable cause at the time of the arrest to search the vehicle. Here, Fletcher did not acquire probable cause to search for a firearm in Romero’s car until long after the initial stop of Romero. This fact distinguishes this case from the circumstances of Carney, Johns, Bannister, and Chambers.

When Fletcher acquired probable cause through the events that occurred at the station house and by her observation of the butt of the pistol in the car, a search warrant should have been obtained. The police could have secured the site and should have obtained a warrant before searching the car. They secured the car and left it at the site to protect Romero’s possessions in the car. The automobile exception does not apply, and the police were required to obtain a warrant before searching Romero’s car.

The police could have performed an inventory search of the car immediately after the arrest without first obtaining a warrant under Bannister. They elected not to. Rather, they secured the car and returned the keys to Romero, and thus waived their privilege under the inventory exception to search the car without first securing a search warrant.

Accordingly, I would affirm the district court order suppressing the evidence seized in the search of Romero’s car.

I am authorized to say that Justice KIRSHBAUM joins in this dissent.