State v. Smith

McDEVITT, Justice.

On July 3, 1989, Officer Ted Piche of the Lewiston Police Department stopped a 1966 Ford Galaxy driven by Victor H. Smith for speeding and driving erratically. As Officer Piche approached the car he observed Smith reaching under the seat as if to either hide or retrieve something. The officer told Smith to keep his hands in plain sight and ordered him out of the car. When asked why he was reaching under the seat, Smith replied that there was a loaded gun in the car. He was immediately handcuffed and the officer called for backup.

After Officer Cain responded to the call for back up, Piche made a cursory search of the vehicle and located a loaded .25 caliber automatic handgun under the front seat of the car. Smith was searched and arrested for carrying a concealed weapon. When questioned about ownership of the vehicle, Smith said that the car belonged to a friend and that he was borrowing it for a few days. However, when the officers ran a registration check, it showed that the vehicle was registered both to the defendant and to a Mr. Cook. At this point, the officers suspected that the car may have been stolen and began looking for the Vehide Identification Number (VIN) plate. Upon locating the VIN plate it appeared to the officers that it may have been tampered with.

The officers made the decision to have the vehicle impounded, both for auto theft investigation and to remove it from the highway for safety reasons. During an inventory search a clear plastic bag containing white powder was discovered under the seat cover in the middle of the front seat. This bag contained what was later determined to be 25.4 grams of cocaine.

Following a preliminary hearing, the defendant was bound over to the district court for trial on the charges of possession of a controlled substance with intent to deliver and failure to affix controlled substance tax stamps to the cocaine.

The defendant filed a motion to suppress the evidence found in his vehicle, and a motion to dismiss the tax stamp charge on the basis that the statute was unconstitutional.

The court ruled that the cocaine charge would be amended to simple possession and denied the motions to suppress the evidence and to dismiss the drug tax stamp count. The defendant entered a conditional plea of guilty under Rule 11 of the Idaho Criminal Rules reserving the right to appeal these decisions. The court withheld judgment on both counts and placed Smith on probation.

ILLEGAL DRUG STAMP CHARGE

The first issue we will deal with is the denial of the motion to dismiss the tax stamp charge on the basis that the statute is unconstitutional.

The Illegal Drug Stamp Tax Act was enacted in 1989, and was later amended in 1990. This Act requires those unlawfully in possession of controlled substances to purchase and affix drug tax stamps to the substances or face civil and criminal penalties. The defendant was charged under the 1989 version, and asserts that this version was unconstitutional because it violated his right against self-incrimination.¹ At oral argument the State acknowledged that, as to its criminal provisions, the Act was unconstitutional as it was violative of the Fifth Amendment because it failed to provide the functional equivalent of a guarantee against self-incrimination. We agree.

Under the 1989 version, although a purchaser of drug stamps was not required to give identifying information when paying the tax, there was no penalty for disclosure of information by tax commission employees or agents, and there was no express prohibition against using the information obtained through the purchase of the stamps in criminal proceedings or investigations. The most significant change in the Illegal Drug Stamp Tax Act made in the 1990 version was the addition of I.C. § 63-4206 which provides for confidentiality for stamp purchasers. Idaho Code § 63-4206 provides penalties for those who would divulge this information, and prohibits using it in criminal investigations or proceedings. This addition cures the deficiencies challenged by the defendant. Other states have held similarly.²

The defendant’s conviction for failure to purchase and affix a drug stamp under the 1989 version of the Illegal Drug Stamp Tax Act is vacated.

MOTION TO SUPPRESS

The next issue we confront is whether the district court abused its discretion in denying the defendant’s motion to suppress evidence found in the vehicle. The evidence in question is the 25.4 grams of cocaine found during the inventory search conducted by Officer Cain.

The defendant contends that the inventory search was a pretext for an “investigative” search. Although we are unable to discern the subjective intent of the officers involved in this case, or any other, the law provides for both a search of an arrestee’s vehicle following a valid arrest, and also for an inventory search upon the impoundment of a vehicle. It is apparent from the facts of this case that both types of searches occurred here. We will address each search separately.

SEARCH INCIDENT TO ARREST

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court clarified the rule of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and stated:

Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

New York v. Belton, 453 U.S. at 460-61, 101 S.Ct. at 2864. (Citations and footnotes omitted).

Idaho has adopted the rule in Belton. State v. Calegar, 104 Idaho 526, 661 P.2d 311 (1983). Here, the officers were justified in searching the interior of the automobile, including any containers, as soon as the defendant was placed under arrest. The officer searched the automobile after the defendant was arrested, and while the car was still at the scene of the arrest. Thus, this was a valid search incident to arrest.

In State v. Calegar, 104 Idaho 526, 661 P.2d 311 (1983), we held that a suitcase seized from the defendant’s automobile, could be taken back to the station before the search of the suitcase was conducted. A delay of a half hour, as in this case, does not result in an invalid search. The United States Supreme Court has held similarly. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

INVENTORY SEARCH

In addition, it was permissible for the police to search the defendant’s car once the decision was made to impound it.

Inventory searches are permissible. The United States Supreme Court, in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), stated:

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.

* * * * * *

The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable.

Id., 428 U.S. at 369-72, 96 S.Ct. at 3097-99. (Citations omitted).

The initial decision to impound a vehicle that poses a traffic hazard or following the operator’s arrest is left to the discretion of the officer involved. The defendant’s car was on an incline at the interchange of U.S. Highways 12 and 95 facing north. This is an area with heavy traffic and no shoulder on the side of the road. The speed limit is forty-five miles per hour at that point, but it is close to the fifty-five miles per hour marker.

At the preliminary hearing, Officer Cain testified that he decided to impound the vehicle so it could be investigated by officers more familiar with auto theft investígations. He also testified that the location of the vehicle necessitated removing it, both for the safety of the vehicle and the other traffic on the highway. Officer Cain testified that even if he had not suspected that the vehicle was stolen, he still would have impounded it because it was a traffic hazard.

Therefore, we hold that the district court did not abuse its discretion in denying the defendant’s motion to suppress. The defendant’s conviction on the charge of possession of a controlled substance is affirmed. The defendant’s conviction for failure to purchase and affix a drug stamp under the 1989 version of the Illegal Drug Stamp Tax Act is vacated.

JOHNSON, J., concurs. BOYLE, J., concurs in result.

1 . In the 1990 amendment the legislature addresses the issue of the individual’s right against self-incrimination.

2 . State v. Durrant, 244 Kan. 522, 769 P.2d 1174 (1989); Sisson v. Triplett, 428 N.W.2d 565 (Minn.1988).