State v. McDougal ( 1975 )

Robert W. Hansen, J.

(dissenting). The examination by the police of the contents of the two suitcases that were in police custody was entirely proper for two reasons:

1. This was a valid custodial search and inventory of personal property in police custody.

The automobile driven by defendant, plus the two locked suitcases and the keys to open the suitcases, came into police custody for safekeeping purposes when the defendant was placed in jail custody. Under these circumstances, our court has held that “. . . one of the custodial requirements is the inventorying of possessions belonging to the accused and placing them in safekeeping, during his [the defendant’s] custody in jail.” ¹

So the police were here required to inventory and subsequently account for articles of personal property that came into their custody when the defendant was placed in jail. Ordinarily, this duty to inventory and account involves items of personal property carried on the person of the jailed defendant.² However, as our court has held: “The purpose and justification of a custodial search of a jailed person also applies to the accused’s automobile which is taken into custody by the police for safekeeping while the accused is in jail custody.” ³ The reason for placing this duty upon the police, our court has held, is that “Many times claims against the police have been made by the accused that personal property has disappeared from his car while he and the car were in police custody.” ⁴ Thus, our court has held: “To protect the police from such claims, a custodial search and inventory may be made of the personal property in a car which can be easily removed.” ⁵ With the obligation to subsequently account for items placed in police custody, such authority becomes an obligation, required by prudent police and custodial procedures.

For the court-specified purpose of protecting against future claims of impounded property being missing, such inventorying goes to contents, as well as container. To list “1 purse” or “1 pocketbook” would provide no protection at all to the police against a claim that $100 or $1,000 was later missing from purse or pocketbook. Similarly, as to the contents of an automobile, to list “2 unlocked suitcases” would be scant protection against a subsequent claim that currency or valuable jewelry no longer was in the suitcases when they were returned to the defendant owner. Here the two suitcases were locked, but the keys to open them were also in the automobile and also came into police custody. There is no realistic difference between the police possessing a suitcase that is unlocked, and possessing both a locked suitcase and the key with which to open it. Inventorying of contents is required in both situations to protect against future claims of pilferage of contents while the suitcase is in police custody. Exactly so this court held where an attaché case, tobacco can and locked container came into postarrest police custody along with the key to open the container.⁶ As in the case before us, the containers, there three and here two, were in the automobile defendant was arrested for driving without a driver’s license. In Soekle, our court held that there was consent to the search. As to the state’s contention that also involved was a custodial inventory search that included the right to open the locked container (the key fitting the lock was found on the person of the defendant), our court held:

“It is true that this court has approved such custodial search of the person or automobile of a jailed person, and stated the reason to be to protect the police as custodians from claims that ‘personal property has disappeared from his car while he and the car were in police custody.’ That is the law in this state and would be followed if it were applicable. However . . . consent to search was secured . ...” ⁷

In the case before us, with both the locked suitcases and the keys fitting the locks coming into police custody for safekeeping when the defendant was placed in jail custody, the police here had the duty, as well as the right, to inventory all items of personal property, including the contents of the suitcases. It follows, as this court has held, that: “If contraband or evidence or fruits of a crime are found in this process, the discovery does not make the search unreasonable.” ⁸

2. The defendant voluntarily consented to the custodial search and inventory of the contents of the suitcases.

At the time of his arrest, the defendant opened the trunk of the car with his key when the officer indicated his curiosity as to what was in the trunk. There were revealed two green suitcases. The defendant promptly volunteered that they did not belong to him. When the police officer also indicated that he was curious as to the contents of the two suitcases, the defendant not only did not object in any way to a police examination of the contents, but, repeating that they were not his suitcases, volunteered to open them and did, in fact, attempt to open them for inspection by the officer. This voluntary effort to open the suitcases for the officer was abandoned by the defendant only when it became apparent that they were locked. Actions speak louder than words, and here the volunteered assistance in seeking to open the suitcases bespeaks full consent as eloquently as the verbal consent of the defendant.

This is almost the exact fact situation that was before this court in the recent Soehle Case, where voluntary consent was held to validate the search by the police of the contents of a locked container.⁹ In both cases, there as here, the drivers were placed under arrest for driving without a driver’s license. Both defendants were driving automobiles belonging to someone else. Both consented to police inspection of the contents of the automobile. During such search, both defendants pointed out items they claimed did not belong to them (in Soehle, a locked container; in the case before us, the two locked suitcases).¹⁰ In both cases, the automobiles and their contents came into police custody for safekeeping when the defendants were placed in jail. In Soehle, such contents included the locked container; in the case here, such contents included the two locked suitcases. In the Soehle Case, the key that fit the lock of the container was found on the person of the defendant. In the case before us, the keys that fit the locks of the suitcases were found in the glove compartment of the automobile. In both cases, the police opened the locked container or cases and examined the contents, finding contraband, which, in both cases, the defendants later sought to suppress as products of constitutionally inadmissible searches. In Soehle, this court held:

“Given a completely voluntary and entirely proper consent to a search of the car for such purpose, the police secured the right not only to seize the three containers, but also to examine their contents. Given valid consent or proper search warrant, the resultant right to seek and find included the right to examine the contents, as well as to seize the attaché case, the tobacco can and the locked container.” ¹¹

What was concluded as to consent given in Soehle to a search for incriminating evidence, applies here to the custodial search when the automobile and contents came into police custody for safekeeping purposes. The principle determining both situations has been stated by this court to be: “A search and seizure are not in violation of constitutional rights if the person freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied . ...” ¹² In both the Soehle Case and the case before us, such free and intelligent consent was given and for the same reason — defendants’ electing to rely upon the claim that locked containers and their contents belonged to someone else. In the case before us, the defendant went beyond consent to affirmatively seek to open the locked suitcases so that the officer could inspect the contents defendant claimed belonged to someone else. That full and free consent, evidenced by word and volunteered actions, was never withdrawn, modified or limited, and it requires holding here that the evidence secured by such valid consent search was properly in the possession of the police.

The writer would hold the search here to be constitutionally valid both as a consent search and as a custodial search. So holding, the writer would reverse, setting aside the order of the circuit court granting defendant’s motion to suppress evidence secured as a result of the search, and would remand the case for trial.

1 Warrix v. State (1971), 60 Wis. 2d 368, 376, 184 N. W. 2d 189.

2 Id. at page 376, this court holding: “At the police station the defendants were required to empty their pockets as a part of the booking process. ... It is argued this search is not incidental to their arrest and therefore in violation of their fourth amendment rights. . . . But, this court in State v. Stevens (1965), 26 Wis. 2d 451, 460, 132 N. W. 2d 502, has upheld a custodial search of the person . . . .”

3 Id. at page 376.

4 Id. at page 376.

5 Id. at page 376.

6 Soehle v. State (1973), 60 Wis. 2d 72, 208 N. W. 2d 341.

7 Id. at page 82.

8 Warrix v. State, supra, footnote 1, at page 376.

9 Soehle v. State, supra, footnote 6.

10 Such disclaimer of ownership — in both these cases — constitutes an obvious intentional relinquishment of a known right. See: 31 C. J. S., Estoppel, p. 482, sec. 86.

11 Soehle v. State, supra, footnote 6, at page 83.

12 Barnes v. State (1964), 25 Wis. 2d 116, 121, 130 N. W. 2d 264, in a search-of-the-person situation where the majority opinion held consent not to have been voluntarily given.