State v. Paynter

Circuit Court for Prince George’s County
Case No. CT170050X
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 257
September Term, 2017
______________________________________
STATE OF MARYLAND
v.
DANIEL A. PAYNTER
______________________________________
Eyler, Deborah S.
Beachley,
Moylan, Charles E., Jr.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: September 28, 2017
Circumstances frequently result in the police having to impound a citizen’s
automobile. For the mutual benefit of police and citizen alike, such impounding will
routinely be accompanied by an inventorying of the contents of the automobile. This
procedure is not necessarily a part of an adversarial “cops and robbers” scenario in a typical
criminal investigation and trial. It may be, rather, what the Supreme Court has
characterized as a “community caretaking function.” Cady v. Dombrowski, 413 U.S. 433,
441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973):
Local police officers . . . frequently investigate vehicle accidents in which
there is no claim of criminal liability and engage in what, for want of a better
term, may be described as community caretaking functions, totally divorced
from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.
(Emphasis supplied).
Courts, therefore, must scrupulously forbear from reflexively looking upon this
neutral police function with cynical disdain and must refrain from cavalierly dismissing
such police behavior as presumptively a subterfuge. A modicum of trust would be more
appropriate.
The Present Case
The appellee, Daniel A. Paynter, was indicted in Prince George’s County on January
12, 2017 for the possession of marijuana with the intent to distribute and related offenses.
He moved to have the physical evidence suppressed because of an alleged violation of the
Fourth Amendment. On March 24, 2017, the court granted the motion to suppress.
The State’s Interlocutory Appeal
The State filed a timely appeal on April 3, 2017. The appeal is authorized by
Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4). Pertinent are
subsections (c)(4)(iii) and (iv):
(iii) Before taking the appeal, the State shall certify to the court that
the appeal is not taken for purposes of delay and that the evidence excluded
or the property required to be returned is substantial proof of a material fact
in the proceeding. The appeal shall be heard and the decision rendered within
120 days of the time that the record on appeal is filed in the appellate court.
Otherwise, the decision of the trial court shall be final.
(iv) Except in a homicide case, if the State appeals on the basis of this
paragraph, and if on final appeal the decision of the trial court is affirmed,
the charges against the defendant shall be dismissed in the case from which
the appeal was taken. In that case, the State may not prosecute the defendant
on those specific charges or on any other related charges arising out of the
same incident.
(Emphasis supplied).
The record was filed with this Court on June 8, 2017. Accordingly, our decision
must be rendered no later than October 5, 2017. We heard oral argument on September 5,
2017.
The Facts In A Nutshell
Other than being a routine traffic stop, the case against the appellee did not begin in
any sense as a criminal investigation. On December 13, 2016, Officer Donald Rohsner was
on routine traffic duty, using radar to look for speeding violations in the 800 block of Talbot
Avenue in Laurel. He observed the appellee’s white 2014 Chevrolet Impala traveling at “a
speed of 50” in a clearly marked “30 mile per hour zone.” He initiated a stop of the vehicle
2
and relayed the information about the car to “police dispatch.” The appellee was the
vehicle’s driver and sole occupant.
Officer Rohsner ran the appellee’s information through the Laurel Police
Department’s communication system and was informed that the appellee’s driver’s license
was “suspended.” When the officer further checked the registration status of the vehicle
itself, he learned “that the tags were suspended through the Motor Vehicle Administration
(M.V.A.) and that they were to be – there was a pick-up order on them, which means we
must remove them and take them – put them into evidence so the vehicle did not have
tags.” During the stop, Officer Rohsner received a further dispatch that “said 10–0, possibly
armed, which is a caution code that he was possibly armed.” Based on that cautionary alert,
“you would want to have a secondary officer for safety purposes.”
Officer Nicholas Cahill responded to the traffic stop as that secondary officer.
Officer Cahill, who also testified, confirmed that when the police encounter a “pick-up
order,” they “have to take the tags off the vehicle and we return them to the M.V.A.”
Officer Cahill went on to describe the written and established procedure of the Laurel
Police Department with respect to inventories. He submitted the printed seven-page policy
of the Department as State’s Exhibit 1. He further testified that he had received “field
training” on the proper implementation of the inventory procedure. He explained that the
“purpose of an inventory search is to document all items in the vehicle, high value, anything
you deem might be in the vehicle that needs to be inventoried.” His direct examination
pointed out:
3
Q. Okay. You indicated that [in] your inventory policy, you search for
valuables.
A. Correct.
Q. What -- what constitutes a valuable item in your --
A. It could be a cell phone, hum, any debit cards, money left in the
vehicle, clothing, tools.
Q. Okay. How do you acquire -- which items you encounter during an
inventory search would require safekeeping?
A. We don’t take anything for safekeeping. We will usually just leave
that valuable in the vehicle. Hum, and it will stay in the vehicle while it’s
impounded.
There was no cross-examination.
Officer Cahill testified that he would routinely search the glove compartment, the
central console area, and the trunk because that is where valuables would likely be found.
Officer Cahill went on to explain that the general orders of the Laurel Police Department
governing inventories require the use of a motor vehicle tow report form. A copy of that
tow report was offered and admitted as State’s Exhibit 2. On that form, the inventory in
this case listed “a blue iPhone in the center console” and “seven Mac computers in the
trunk of the car.” In the course of making the inventory, the police also discovered and
seized 51 grams of marijuana.
An overview of the suppression hearing is significant. The appellee did not testify
and offered neither witnesses nor evidence on his motion to suppress. With respect to the
two officers called by the State, the appellee asked not a single question by way of cross-
examination.
4
The appellee’s argument before the suppression hearing judge referred to Officer
Rohsner’s body camera which recorded his inventory searching. It showed three pairs of
tennis shoes, a spare tire, a jack, and jumper cables that were not listed as part of the
inventory. The appellee’s argument was that the inventory was thereby flawed because it
failed to include all items found in the car.1 Logically implicit in such an argument is that
such a subsequent failure to fill out the inventory listing with the requisite completeness
would date back to invalidate the earlier discovery of the items to be inventoried. The
search for the items, of course, was already fait accompli when the inventorying officer
first puts pen to paper. In extremely summary terms, however, the trial judge’s ruling
bought the appellee’s argument:
What the video makes clear is that what the police conducted is not an
inventory, because an inventory lists everything that is and is not based on a
subjective criteria as to what is quote valuable, unquote. The motion to
suppress is granted as to the contents of the trunk.
(Emphasis supplied). That is the sum total of the ruling. That is the ultimate constitutional
ruling that we shall examine de novo.
1
The footage taken by Officer Cahill’s body camera of the inventory search was
introduced by the State as State’s Exhibit 3. Paradoxically, the appellee uses this footage
as a part of the inventory. It is the only evidence there is of the “other items” that the
appellee claims were not inventoried. If what is shown on the film is efficacious to support
the appellee’s appellate argument, as indeed it was to support the appellee’s successful
argument at the suppression hearing, then what prejudice has the appellee suffered? Would
not the same film of the inventory search be equally efficacious to support a hypothetical
claim of theft that the appellee might bring against the police department? Would it not
thereby serve to support all of the community caretaking purposes that the inventory of the
contents of the impounded vehicle was devised to serve? What then, if anything, is
missing? If it looks like a duck and quacks like a duck . . . .
5
The Supreme Court And Inventory Searches
To keep a proper sense of precedential proportion, we note that we are dealing, of
course, with Fourth Amendment constitutional law. The Maryland opinions, which the
appellee seems to argue almost exclusively, are but implementary and/or descriptive of that
Fourth Amendment law. They are not themselves the core law to be applied. Whenever
lawyers start cherry-picking phrases from random cases (as inevitably they must), it is
always healthy to be able to go back to the original source instead of relying too heavily
on subsequent glosses on that original source. It is always advisable to be cautious when
using secondary sources. As a word is changed here or an emphasis is added there in
making a gloss, and then a gloss upon a gloss, it is easy for the gloss to stray from the
original message. If you want to know what South Dakota v. Opperman holds, therefore,
read South Dakota v. Opperman.
For the law governing the inventorying by the police of the contents of an
automobile about to be impounded, the original source is South Dakota v. Opperman, 428
U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). It was and it remains the Fourth
Amendment pole star. In Opperman, as here, the police determined that the vehicle in
question would be towed to the impounding lot because of a violation of the traffic
(parking) law. It had been illegally parked for a number of hours in a restricted zone. As in
the present case, no crime other than the illegal parking itself was even suspected. The
officer unlocked the car and, “using a standard inventory form pursuant to standard police
procedures,” inventoried the contents of the automobile, “including the contents of the
6
glove compartment which was unlocked.” 428 U.S. at 366. In a plastic bag in the glove
compartment, the police found and seized marijuana.
Opperman’s motion to suppress the marijuana on the basis of a Fourth Amendment
violation was denied and he was convicted of unlawful possession. The Supreme Court of
South Dakota, however, reversed the conviction, holding that there had been a Fourth
Amendment violation. On that issue, the Supreme Court of the United States then reversed
the Supreme Court of South Dakota. The opinion of the United States Supreme Court
indisputably placed the phenomenon of the inventory “search” in an essentially non-
investigative context, referring to it expressly as a “caretaking procedure.”
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 the police against claims or disputes over lost or stolen
property . . . ; and the protection of the police from potential danger . . . . The
practice has been viewed as essential to respond to incidents of theft or
vandalism.
....
These caretaking procedures have almost uniformly been upheld by
the state courts, which by virtue of the localized nature of traffic regulation
have had considerable occasion to deal with the issue. Applying the Fourth
Amendment standard of “reasonableness,” the state courts have
overwhelmingly concluded that, even if an inventory is characterized as a
“search,” the intrusion is constitutionally permissible.
428 U.S. at 369–71 (emphasis supplied).
This larger philosophical overview of inventorying is important in this case because
the appellee, in attempting to erect a procedural obstacle course, is trivializing the
phenomenon. The appellee essentially begins with the notion that police credibility is
7
inherently suspect and that the officer must pass a series of procedural tests in order to
prove his bona fides. South Dakota v. Opperman itself gives off no such emanations.
In holding that the inventory “search” in that case did not violate the Fourth
Amendment, Opperman set out two basic requirements. The first is that the police must be
lawfully entitled to impound or otherwise to exert custody over the vehicle.
The Vermillion police were indisputably engaged in a caretaking
search of a lawfully impounded automobile. . . . The inventory was
conducted only after the car had been impounded for multiple parking
violations.
428 U.S. at 375 (emphasis supplied).
The second requirement is that the inventorying must be conducted pursuant to
“standard police procedure.”
[W]e conclude that in following standard police procedures, prevailing
throughout the country and approved by the overwhelming majority of
courts, the conduct of the police was not “unreasonable” under the Fourth
Amendment.
428 U.S. at 376 (emphasis supplied).
In Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983), the
inventory search before the Court was not of an automobile but of a shoulder bag carried
by a defendant as he was arrested and subsequently brought into the station house. In
inventorying the contents of the bag, the police discovered amphetamine pills inside a
cigarette case. The most important message of the Lafayette opinion is that in carrying out
the inventory process, the police are not required to find and to use the “least intrusive
manner.” Chief Justice Burger, writing for the Court, explained:
8
The Illinois court held that the search of respondent’s shoulder bag
was unreasonable because “preservation of the defendant’s property and
protection of police from claims of lost or stolen property, ‘could have been
achieved in a less intrusive manner.’[”]
....
Perhaps so, but the real question is not what “could have been achieved,” but
whether the Fourth Amendment requires such steps; it is not our function to
write a manual on administering routine, neutral procedures of the
stationhouse. Our role is to assure against violations of the Constitution.
The reasonableness of any particular governmental activity does not
necessarily or invariably turn on the existence of alternative “less intrusive”
means.
462 U.S. at 647 (emphasis supplied).
The Court admonished that this is a practical matter not calling for too demanding
a case of perfection.
Even if less intrusive means existed of protecting some particular
types of property, it would be unreasonable to expect police officers in the
everyday course of business to make fine and subtle distinctions in deciding
which containers or items may be searched and which must be sealed as a
unit.
462 U.S. at 648 (emphasis supplied).
Eleven years after South Dakota v. Opperman, Colorado v. Bertine, 479 U.S. 367,
107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), reaffirmed Opperman’s basic attitude toward
inventory searches. A Colorado police officer had arrested Bertine for driving his van under
the influence of alcohol. Just before a tow truck arrived to take the van to an impounding
lot, one of the officers, in accordance with local police procedure, inventoried the van’s
contents. The inventorying required opening a closed backpack which was found directly
9
behind the front seat of the van. The backpack contained a mare’s nest of drugs and
contraband.
Inside the pack, the officer observed a nylon bag containing metal canisters.
Opening the canisters, the officer discovered that they contained cocaine,
methaqualone tablets, cocaine paraphernalia, and $700 in cash. In an outside
zippered pouch of the backpack, he also found $210 in cash in a sealed
envelope.
479 U.S. at 369.
Albeit noting that the inventory was performed in a “somewhat slipshod” manner,
the trial court nonetheless ruled that the Fourth Amendment had not been violated. It
nonetheless suppressed the evidence, ruling that the Colorado constitution had been
violated, even if the United States Constitution had not been. The Supreme Court of
Colorado affirmed the suppression, but on different grounds. It based its decision on its
belief that the federal Fourth Amendment had been violated. In reversing the Colorado
holding, the United States Supreme Court’s opinion reaffirmed its earlier decision in
Opperman.
We found that inventory procedures serve to protect an owner’s property
while it is in the custody of the police, to insure against claims of lost, stolen,
or vandalized property, and to guard the police from danger. In light of these
strong governmental interests and the diminished expectation of privacy in
an automobile, we upheld the search. In reaching this decision, we observed
that our cases accorded deference to police caretaking procedures designed
to secure and protect vehicles and their contents within police custody.
479 U.S. at 372 (emphasis supplied).
One reason the Colorado Supreme Court had found the inventory unconstitutional
was because the police had not explored with Bertine the possibility of making other
arrangements for the safekeeping of his property.
10
The Supreme Court of Colorado also expressed the view that the
search in this case was unreasonable because Bertine’s van was towed to a
secure, lighted facility and because Bertine himself could have been offered
the opportunity to make other arrangements for the safekeeping of his
property.
479 U.S. at 373 (emphasis supplied). The appellee makes just such an argument in this
case. Chief Justice Rehnquist’s opinion to the contrary then emphasized:
We conclude that here, as in Lafayette, reasonable police regulations relating
to inventory procedures administered in good faith satisfy the Fourth
Amendment, even though courts might as a matter of hindsight be able to
devise equally reasonable rules requiring a different procedure.
479 U.S. at 374 (emphasis supplied).
The Supreme Court also rejected Bertine’s argument that the inventory was fatally
flawed because the police had been left with too much discretion.
Bertine finally argues that the inventory search of his van was
unconstitutional because departmental regulations gave the police officers
discretion to choose between impounding his van and parking and locking it
in a public parking place. The Supreme Court of Colorado did not rely on
this argument in reaching its conclusion, and we reject it. Nothing
in Opperman or Lafayette prohibits the exercise of police discretion so long
as that discretion is exercised according to standard criteria and on the basis
of something other than suspicion of evidence of criminal activity. Here, the
discretion afforded the Boulder police was exercised in light of standardized
criteria, related to the feasibility and appropriateness of parking and locking
a vehicle rather than impounding it.
479 U.S. at 375–76 (emphasis supplied).
In Colorado v. Bertine, 479 U.S. at 376, the concurring opinion of Justice Blackmun,
joined by Justice Powell and Justice O’Connor, stressed the importance of conducting an
inventory “only pursuant to standardized police procedures.”
11
I join the Court’s opinion, but write separately to underscore the importance
of having such inventories conducted only pursuant to standardized police
procedures.
479 U.S. at 376 (emphasis supplied).
In Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990), the
defendant was stopped by the Florida Highway Patrol for speeding and was then arrested
for driving under the influence of alcohol. His car was impounded. The preliminary
inventory search turned up two marijuana cigarette butts in an ashtray and a locked suitcase
in the trunk. The suitcase was forced open and was found to contain a garbage bag
containing a considerable amount of marijuana. The Florida Court of Appeals and then the
Supreme Court of Florida held that the opening of the locked suitcase, in the total absence
of any standardized policy controlling such a search, was a violation of the Fourth
Amendment. The United States Supreme Court agreed and affirmed.
Speaking through Chief Justice Rehnquist, the Supreme Court held that the violation
occurred when, in the course of an otherwise proper inventory, the police opened a locked
suitcase in the total absence of any policy with respect to closed containers.
[T]he Florida Highway Patrol had no policy whatever with respect to the
opening of closed containers encountered during an inventory search. We
hold that absent such a policy, the instant search was not sufficiently
regulated to satisfy the Fourth Amendment and that the marijuana which was
found in the suitcase, therefore, was properly suppressed by the Supreme
Court of Florida.
495 U.S. at 4–5 (emphasis supplied).
The holding was not that the controlling policy must contain one of the binary
commands that all locked containers may always be searched or that no locked containers
12
may ever be searched. There must be an express policy, however, and some guidelines
must be provided to constrain police discrimination.
A police officer may be allowed sufficient latitude to determine whether a
particular container should or should not be opened in light of the nature of
the search and characteristics of the container itself. Thus, while policies of
opening all containers or of opening no containers are unquestionably
permissible, it would be equally permissible, for example, to allow the
opening of closed containers whose contents officers determine they are
unable to ascertain from examining the containers’ exteriors. The allowance
of the exercise of judgment based on concerns related to the purposes of an
inventory search does not violate the Fourth Amendment.
495 U.S. at 4 (emphasis supplied).
Where Are We Analytically?
The recurring theme of the Supreme Court, from South Dakota v. Opperman
through Florida v. Wells, is that an inventory search is normally a non-investigatory
community caretaking function. How, then, does such non-investigatory behavior fit into
our more familiar framework of Fourth Amendment analysis? In terms of constitutional
algebra, something discovered in the inventory search may trigger the Plain View Doctrine.
Analytically, the initial non-investigatory inventory search would qualify as a prior valid
intrusion, a critical element of the Plain View Doctrine. When evidence is then spotted in
plain view, with the requisite probable cause to believe that it is evidence, a Plain View
Doctrine warrantless seizure is quintessentially reasonable. Coolidge v. New Hampshire,
403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Arizona v. Hicks, 480 U.S. 321,
107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).
From the very beginning of this period of constitutional development, on the other
hand, the recurring and persistent theme of the dissenting voices has been the fear that the
13
police will use the ostensibly non-investigatory search as a subterfuge to make
investigatory searches that would otherwise be forbidden. The critical question, therefore,
becomes that of “Whether the prior intrusion that leads to the plain view of the evidence
is, in truth, a prior VALID intrusion?” For the criminal defendant, the instinctive response
is to cry “Subterfuge!” The tactical consequences of that instinct have been to come up
with as many attacks as possible on the integrity of the inventory. For inventory searches
generally, we are called upon to determine whether the ostensibly prior valid intrusion was,
indeed, VALID.
In terms of careful and precise analysis, moreover, footnote 6 of the Opperman
opinion, 428 U.S. at 370 n.6, also raises an interesting question with respect to the
constitutional algebra. It carefully points out that an inventory “search,” in terms of analytic
clarity, may not be a “search” within the contemplation of the Fourth Amendment at all. It
may not be analytically precise, therefore, to call the inventory an exception to or an
exemption from the warrant requirement, because the entire warrant requirement (along
with all of its exceptions) relates to criminal investigations and depends upon probable
cause. The true inventory, by contrast, has nothing to do with either. It is probably more
analytically correct, therefore, to think of the inventory as an instance of the “Fourth
Amendment Inapplicable” rather than as an instance of the “Fourth Amendment Satisfied.”
In Opperman, however, the petitioner did not pursue this line of reasoning and the Supreme
Court was not required to pursue the matter further. The very insightful footnote, however,
reads in its entirety:
14
Given the benign noncriminal context of the intrusion, see Wyman v.
James, 400 U.S. 309, 317, 91 S. Ct. 381, 385, 27 L. Ed. 2d 408 (1971), some
courts have concluded that an inventory does not constitute a search for
Fourth Amendment purposes. See e. g., People v. Sullivan, supra, 29
N.Y.2d, at 77, 323 N.Y.S.2d, at 952, 272 N.E.2d, at 469; People v. Willis, 46
Mich. App. 436, 208 N.W.2d 204 (1973); State v. Wallen, 185 Neb. 44, 49-
50, 173 N.W.2d 372, 376, cert. denied, 399 U.S. 912, 90 S. Ct. 2211, 26 L.
Ed. 2d 568 (1970). Other courts have expressed doubts as to whether the
intrusion is classifiable as a search. State v. All, 17 N.C. App. 284, 286, 193
S.E.2d 770, 772, cert. denied, 414 U.S. 866, 94 S. Ct. 51, 38 L. Ed. 2d 85
(1973). Petitioner, however, has expressly abandoned the contention that the
inventory in this case is exempt from the Fourth Amendment standard of
reasonableness.
(Emphasis supplied).
The Maryland Reception
Six months after South Dakota v. Opperman was decided, this Court recognized it
and applied it in Duncan and Smith v. State, 34 Md. App. 267, 366 A.2d 1058 (1976). We
affirmed the denial of the defendant’s suppression motions on two grounds: 1) that the
inventory search of an automobile was proper, and 2) that the defendants had abandoned
the automobile in question. In affirming the decision of this Court in Duncan and Smith v.
State, 281 Md. 247, 378 A.2d 1108 (1977), the Court of Appeals did not agree with our
decision that, on the facts of the case, the decision to inventory had been made in good
faith, but it did agree that the defendants had abandoned the automobile and, therefore had
no standing to object. The opinion of Judge Orth, however, fully accepted the new Supreme
Court law.
Despite the narrowness of the Opperman holding, necessarily
restricted to the facts of that case, there emerges from the Court’s opinion a
doctrine, viable even though not fully developed, which permits as
reasonable by Fourth Amendment standards, the inventory search of an
automobile under certain conditions.
15
281 Md. at 258–59 (emphasis supplied). From the beginning, Maryland recognized that
the two key requirements of that new doctrine are 1) that the vehicle be lawfully in police
custody and 2) that the inventory be done “pursuant to standard police procedure.”
We find the present stage of the doctrine to be that the police may, without
regard to probable cause, and, thus, absent a warrant, constitutionally enter
an automobile and unlocked compartments therein, and inventory and seize
articles found, provided the vehicle had been otherwise legally taken into
police custody and the inventorying was pursuant to a standard police
procedure.
281 Md. at 259 (emphasis supplied).
More recent decades have seen the appearance of three prominent Maryland
appellate opinions on the subject of inventory searches: Briscoe v. State, 422 Md. 384, 30
A.3d 870 (2011), from the Court of Appeals and both Sellman v. State, 152 Md. App. 1,
828 A.2d 803 (2003), and Thompson v. State, 192 Md. App. 653, 995 A.2d 1030 (2010),
from this Court. In two of those cases, the police ran afoul of the qualifying requirement
so heavily stressed by the Supreme Court in Florida v. Wells, to wit, that the inventory
search be carried out pursuant to standardized policy.
In Briscoe, a minivan was initially stopped because its taillight was not illuminated.
Briscoe, the driver, could not produce a driver’s license. A radio check revealed that his
driver’s license had been suspended and that there was, moreover, an open warrant for his
arrest. Accordingly, the police decided to have the minivan towed to the “City yard.” An
inventory search of the minivan’s contents revealed a handgun in the glove compartment
as well as several vials of cocaine near the steering wheel and in the center console.
16
Significantly, however, the police produced no evidence with respect to a standardized
Police Department policy or procedure on the subject of inventorying.
Neither did the State introduce any evidence of a Baltimore City Police
Department policy or procedure regarding inventory searches.
422 Md. at 393.
Judge (later Chief Judge) Barbera’s opinion for the Court of Appeals began its
analysis by stressing again the two key requirements of a constitutional inventory.
Pursuant to this well-defined exception to the warrant requirement, a search
of a vehicle for the purpose of itemizing the property therein is constitutional,
so long as the vehicle is in lawful police custody at the time of the search and
the search is carried out pursuant to “standardized criteria or [an] established
routine” established by the law enforcement agency.
422 Md. at 397 (emphasis supplied).
Judge Barbera’s opinion pointed to the Supreme Court’s unequivocal message in
Florida v. Wells:
The Court agreed with Wells that the search of the locked suitcase
could not be upheld as an inventory search, because “the record contained no
evidence of any Highway Patrol policy on the opening of closed containers
found during inventory searches.”
....
Consequently, the Court held that the search “was not sufficiently regulated
to satisfy the Fourth Amendment[.]”
422 Md. at 399 (emphasis supplied).
In the absence of any evidence whatsoever of a standardized police policy, the
inventory search in Briscoe could not pass Fourth Amendment muster.
The case at bar suffers from the same lack of evidence in the record
of a Baltimore City Police Department policy concerning the opening of
17
locked containers during an inventory search. In the absence of evidence that
such a policy existed, it is impossible to distinguish a valid inventory search
from a general investigatory search.
Id. (emphasis supplied).
Precisely the same flaw had invalidated an earlier inventory search in Sellman v.
State. The defendant there had had his “hatchback” vehicle stopped on a highway “with
blue front signal lights and a cracked windshield, both in violation of the Maryland
Transportation Code.” 152 Md. App. at 6. Sellman was the driver and sole occupant. He
acknowledged to the traffic officer that his driver’s license had been suspended. He could
not produce a registration card. A records check showed that the license had been
suspended in 1992, revoked in 1993, and that it remained revoked. The officer also learned
that there was a “pickup order” for the car and, as in the present case, an order to secure
the tags.
The officer arrested Sellman and called for a tow truck. An inventory search of the
vehicle revealed a red nylon bag in the hatchback area containing a handgun and a glassine
bag containing 24.34 grams of marijuana. The trial court denied the motion to suppress the
physical evidence. Defense counsel acknowledged that there was justification for an
inventory but pointed out that the State had failed to show any “general administrative
procedure in that regard.” Judge Deborah Eyler’s opinion for the Court of Special Appeals
thoroughly reviewed South Dakota v. Opperman, Illinois v. Lafayette, Colorado v. Bertine,
and Florida v. Wells. Her opinion stressed the necessity for evidence of a standard
established police policy and the fatal lack of it in the Sellman case itself.
18
The Supreme Court cases make clear that to ensure that ulterior investigatory
motives are not at play an inventory search must at a bare minimum be a
search of lawfully detained property carried out by a police officer in
accordance with standard policies established by the officer’s law
enforcement agency. Without the existence of a standard policy, an officer’s
actions in conducting the search are not sufficiently regulated to assure that
the search is in furtherance of legitimate police caretaking functions,
unrelated to the existence vel non of probable cause, and not in furtherance
of the officer’s own investigatory motives.
In the case at bar, the State did not present any evidence of the
existence of a standard inventory search policy.
152 Md. App. at 21 (emphasis supplied).
There not only must be such a policy. There must also be evidence of such a policy
presented to the suppression hearing judge. Judge Eyler stressed the indispensability of
such evidence.
While in argument the prosecutor made reference to Anne Arundel County’s
having a policy that all vehicles subject to being towed are to be searched,
and while such a policy may exist (and may even have been known by the
trial judge to exist), we must base our decision on the evidence actually
presented at trial. There was no evidence of any standardized policy, rule, or
regulation of any sort governing inventory searches by Anne Arundel County
police officers; and there was no evidence that Officer Novotny carried out
his search in accordance with any such policy.
152 Md. App. at 21–22 (emphasis supplied).
The mere absence of subterfuge is not enough. There must still be affirmative
evidence of a policy.
We agree with the State that the facts in evidence do not point in the
direction of a pretextual search. Nevertheless, as we have explained, the
Supreme Court case law requires that, for a search to in fact be a valid
inventory search in the eyes of Fourth Amendment law, there must be proof
that the search was carried out pursuant to an existing policy regulating
police inventory searches. That evidence is essential to establishing the
inventory search exception, regardless of whether the total circumstances
19
seem more consistent with the search’s having been performed for a
community caretaking purpose than for an investigatory purpose.
152 Md. App. at 23 (emphasis supplied).
Judge Wright’s opinion for this Court in Thompson v. State strongly supports the
State’s position. At approximately three o’clock in the morning, a Baltimore County police
officer noticed a green Lexus in the area of Route 40 and Frederick Road and decided to
run a records check on the vehicle’s license tag. When the M.V.A. indicated that it could
not find a registration for the vehicle, Officer Brown stopped the vehicle. The appellant,
Jeffrey Thompson, was unable to produce a driver’s license or other state identification.
Thompson attempted to produce various insurance documents to prove that the car was
properly registered, but the documents referred, counterproductively, to not one, but three
different vehicle identification numbers (VINs). Officer Brown testified that that led him
to suspect some sort of fraud.
The officer arrested Thompson for “failure to provide sufficient identification.”
Officer Brown also called a towing company to impound the vehicle. In the course of a
routine inventory search, the officer recovered a nine millimeter pistol in a book bag in the
trunk of the car. Before this Court, Thompson argued that his arrest was unlawful and that
the gun produced in the search that followed was the fruit of the poisonous tree.
The opinion of this Court acknowledged that the arrest issue was a very close
question but that it was unnecessary to decide it because of the State’s alternative theory
of the case.
Alternatively, the State suggests that the recovery of the handgun occurred
during a lawful inventory search. We agree with the State’s latter rationale
20
and will affirm the motion court’s ruling because it is clear that the vehicle
had to be impounded regardless of whether there was probable cause to arrest
appellant in this case.
192 Md. App. at 666 (emphasis supplied).
Judge Wright’s opinion explained that even if, arguendo, the arrest had been illegal,
the unregistered car would have to have been impounded in any event and the attendant
inventory would inevitably have led to the discovery of the gun.
[E]ven if appellant’s arrest was illegal, the removal of the unregistered
vehicle from the custody of an unlicensed driver was not illegal, and the
handgun would have inevitably been discovered during the subsequent
lawful inventory search of the vehicle.
192 Md. App. at 669 (emphasis supplied).
The impounding of the vehicle, moreover, was perfectly proper.
From this, we conclude that it was reasonable for the police to seize
the vehicle that appellant was driving based on the totality of the
circumstances, including the lack of proper registration, the conflicting
VINs, appellant’s failure to provide license information on demand, and the
fact that appellant’s passenger was no longer on the scene and available to
drive the vehicle. Further, this record establishes that the inventory was
performed in accordance with standardized written procedures of the
Baltimore County Police Department. The handgun, as well as appellant’s
identification, located together in a book bag in the trunk of the vehicle, were
properly recovered during an inventory search.
192 Md. App. at 672–73 (emphasis supplied).
Even had Thompson’s arrest been unlawful, the inevitable discovery exemption
from the fruit of the poisonous tree doctrine would have precluded the suppression of the
gun found in the inventory search of a properly impounded vehicle.
[R]egardless of whether appellant was lawfully arrested, the handgun would
have inevitably been discovered by a later inventory search pursuant to
standardized police procedures. The motion was properly denied.
21
192 Md. App. at 673 (emphasis supplied).
Lawful Police Custody Of The Vehicle
Of the two cardinal requirements for a valid inventory search that have been
consistently stressed by the four salient Supreme Court opinions and by the appellate
caselaw of Maryland alike, the first is that the vehicle to be inventoried must be in the
lawful custody of the police. In this case, that fact was indisputably established.
The stopping officer was on standard highway patrol duty, manning the radar from
a fixed position, when he stopped the appellee for doing 50 miles per hour in a 30 mile per
hour zone. The appellee was the only occupant of the car. A radio check revealed that the
appellee’s driver’s license had been suspended. The appellee himself, therefore, would not
have been allowed to drive the car away. In checking the registration status of the vehicle,
the officer further learned that the Motor Vehicle Administration had suspended the tags
and that there was a pick-up order for them. As a back-up officer testified, when the officers
encounter a “pick-up order,” they have to “take the tags off the vehicle and we return them
to the M.V.A.” In this case, no one, therefore, would have been allowed to drive that
“untagged” automobile away from the 800 block of Talbot Avenue in Laurel.
The appellee does not even argue that his vehicle was not in lawful police custody.
The suppression hearing court made no finding that the car was not in lawful police
custody. We hold that this key requirement was incontestably satisfied.
The appellee nevertheless argues that the police were not authorized to tow the car
because they did not exhaust all alternatives to towing. The caselaw makes clear, however,
22
that such an exhaustion of alternatives is not required. In United States v. Williams, 777
F.3d 1013 (8th Cir. 2015), the argument mirrored the one the appellee mounts in this case.
In refuting it, the United States Court of Appeals for the Eighth Circuit had no difficulty in
holding:
[H]e argues that Officer Loftis’s original decision to impound his vehicle,
which then led to the search, was unlawful.
The Tow Policy leaves it up to an officer’s discretion whether to tow
a vehicle after an arrest. “The Fourth Amendment permits exercise of such
discretion . . . ‘so long as that discretion is exercised according to standard
criteria . . . other than suspicion of evidence of criminal activity.’” . . . These
standardized criteria, however, do not need to be part of the written policy
itself, so long as “the officer’s residual judgment is exercised based on
legitimate concerns related to the purposes of an impoundment.” . . . “[A]n
impoundment policy may allow some latitude and exercise of judgment by a
police officer . . . .”
777 F.3d at 1016 (emphasis supplied).
The appellee here also specifically claims that the car’s lawful owner, his mother,
should have been notified and given a voice in deciding how to get the car off of Talbot
Avenue. Precisely that argument was made to the 8th Circuit in United States v. Arrocha,
713 F.3d 1159 (8th Cir. 2013). The Eighth Circuit held:
“Nothing in the Fourth Amendment requires a police department to allow an
arrested person to arrange for another person to pick up his car to avoid
impoundment and inventory.”
713 F.3d at 1164.
Standardized Police Policy
The second of the cardinal requirements for a valid inventory search is that such a
search must be carried out pursuant to a standardized police policy. In this case, that
23
requirement was abundantly satisfied. The Laurel Police Department has a seven-page
General Order, issued on May 6, 2014, dealing with “Motor Vehicle Impounding.” Sect.
4/308.20 D. Impound and Release Procedure b. provides:
The contents of all impounded vehicles shall be inventoried and listed on a
Motor Vehicle Tow Report.
That entire General Order was introduced at the suppression hearing as State’s Exhibit 1.
The Tow Report that, inter alia, listed the items recorded pursuant to the inventory, was
also introduced at the suppression hearing as State’s Exhibit 2. In addition to the
documentary evidence, Officer Cahill testified about his department’s inventory policy,
about his familiarity with it, and about his “field training” with respect to the proper
implementation of the inventory procedure.
At the suppression hearing, defense counsel did not argue that the police did not
have an inventory policy. Defense counsel does not now contend that the General Order
was inadequate in any way. We hold that this policy requirement was abundantly satisfied.
Of Spare Tires, Jacks, And Oily Rags
With the appellee’s acknowledgement that the two key requirements for a
constitutional inventory search have been satisfied, what back-up contentions remain to
give us pause? As the appellee nips away at the heels of this inventory search, he raises
several protests about the manner in which the inventory was executed. The legal theory
he advances seems to be that even if an inventory search is initially justified, any
imperfection in the later execution of the listing process may date back and invalidate the
earlier search.
24
The appellee’s major subcontention in this regard concerns the making of the
inventory list. The tow report that was State’s Exhibit 2 listed the significant or valuable
contents of the appellee’s car as “a blue iPhone in the center console” and “seven Mac
computers in the trunk of the car.” A body camera, worn by Officer Cahill as he made the
inventory search, also shows that, albeit unlisted, there were also in the trunk a spare tire,
a jack, jumper cables, and three pairs of tennis shoes.
It is the appellee’s argument that the inventory list is, therefore, fatally incomplete
and that this imperfection in the listing should date back and, as a matter of law, invalidate
the inventory search that preceded it. This clearly seems to have been the rationale accepted
by the suppression hearing judge in ruling that the inventory search was unconstitutional.
As the judge ruled, “[W]hat the police conducted is not an inventory, because an inventory
lists everything.” None of the Supreme Court opinions or the major Maryland opinions on
the subject, however, has remotely alluded to any such an invalidating principle, and we
are not, as a matter of first impression, about to proclaim such a proposition here.
There would be all sorts of problems with such a rule. Both the appellee and the
suppression hearing judge seem to have conflated the inventory searching, on the one hand,
and the inventory listing, on the other hand, into a single indivisible and contemporaneous
act. They are, however, two acts, separate and sequential. The inventory searching is
already a fait accompli when the inventory listing commences. When contraband or other
evidence of crime is revealed in the course of the inventory search, the Plain View Doctrine
is complete within the blink of the officer’s eye. A later event, the making of the list, will
not retroactively date back and make the prior valid intrusion invalid. For the appellee and
25
the suppression hearing judge to have ignored this sequence was, at least in microcosm, to
rewrite history. It does not logically follow.
On the other hand, even if some later imperfection in the making of the inventory
list will not, as a matter of law, automatically invalidate what preceded the imperfection, it
may, as an alternative theory of relevance, at least be evidence that the searching officer
was insincere in his earlier protestations of non-investigative purpose in conducting the
search. Subsequent events may, after all, throw light on earlier motivation. At the
suppression hearing, of course, there was neither argument nor discussion about such a
theory and there was no finding of fact by the judge in that regard. Maybe the officer who
is more obsessive about making an exhaustive list will be less likely to have been insincere
about his searching motives. Or maybe just the opposite is true.
In this case, however, we do not see any imperfection in the inventory list. The
Fourth Amendment’s key criterion is the adjective “reasonable.” Without any elaborate
exegesis, “reasonable” refers to practical decisions as a matter of common sense. As a
matter of common sense, we know instinctively that South Dakota v. Opperman never
contemplated that the police should inventory four wheels, four hubcaps, six or eight spark
plugs, an aerial, and ten gallons of gas. They, to be sure, are essentially part of the
automobile rather than contents of the automobile. Ordinarily, however, even a spare tire
may be bolted down in its secure niche so as to be part of the automobile. Instinctively, we
also know that other items closely associated with the operation of the automobile, such as
a jack or jumper cables are in the same category, whether bolted down or not. In the present
case, this leaves us with some unlisted tennis shoes. Curiously, the appellee, with full
26
opportunity to do so, never asked Officer Cahill why he did not list the tennis shoes. This
complaint is clearly an appellate afterthought. As our de novo independent constitutional
determination, we are not about to say that Officer Cahill was guilty of subterfuge because
he did not list the tennis shoes. Such a holding would trivialize the Fourth Amendment.
In United States v. Lopez, 547 F.3d 364 (2d Cir. 2008), the United States Court of
Appeals for the Second Circuit threw some interesting light on whether an inventory list
must include all items found in a car or only those items that the inventorying officer deems
to be valuable items. The Second Circuit posed the issue:
Barrett testified that it was proper procedure to list all items found in an
impounded vehicle. Officer Arroyo said it was her practice to list only items
of value, grouping others under a general catch-all. Arroyo added, “Some
cops don’t make any list at all, some cops may list everything. It is not written
anywhere that we have to make any type of a list.” Because the search
conducted in his case under Officer Arroyo’s direction did not result in a
complete list of the contents of the car, Lopez argues further that the search
necessarily failed to meet the requirement that the objective of the search
must be to produce an inventory.
547 F.3d at 370 (emphasis supplied).
The Second Circuit explained that the completeness of an inventory list does not go
to the core purpose or protection of the inventory search law.
The lack of standardization that serves as the basis of Lopez's
argument concerns whether the inventory list produced must include an
itemization of every object found in the car, or whether items of small value
may be omitted or grouped under a general category. We do not understand
the Supreme Court’s requirement of a standardized policy to extend to this
issue because it has no bearing on the reason for the requirement of
standardization. A standardized policy is needed to ensure that inventory
searches do not become “a ruse for a general rummaging in order to discover
incriminating evidence.” . . . While the Supreme Court referred to the need
for a standardized policy, we do not think the Court meant that every detail
of search procedure must be governed by a standardized policy.
27
547 F.3d at 370–71 (emphasis supplied). No purpose would be served by listing items of
insignificant value.
Nor do we think the Court intended to require uniformity as to whether
insignificant items of little or no value must be explicitly itemized. Once
again, departmental uniformity on that issue would have no bearing on
protecting the privacy interests of the public from unreasonable police
intrusion.
547 F.3d at 371 (emphasis supplied).
The Lopez opinion reasoned that too pressing a demand on the process of inventory
listing would actually be detrimental to important government interests.
The concept of an inventory does not demand the separate itemization of
every single object. A conventional family automobile is likely to contain a
bunch of road maps, pens and a notepad, a bottle opener, packs of chewing
gum or candy, clip-on sunshades, a pack of tissues, a vanilla-scented
deodorizer, DVDs and children’s games, a baby bottle and a soiled baby
blanket, an old sock, a sweater, windshield cleaning fluid, jumper cables, a
tow rope, a tire iron and jack, a first aid kit, and emergency flares, not to
mention empty candy wrappers and wads of chewed gum. That an officer
might use a catch-all to cover objects of little or no value in no way casts
doubt on the officer’s claim that the purpose of the search was to make an
inventory. It would serve no useful purpose to require separate itemization
of each object found, regardless of its value, as a precondition to accepting a
search as an inventory search. Such an obligation would furthermore
interfere severely with the enforcement of the criminal laws by requiring
irrational, unjustified suppression of evidence of crime where officers,
conducting a bona fide search of an impounded vehicle, found evidence of
serious crime but, in making their inventory, failed to distinguish between
the maps of Connecticut and New York, or failed to list separately the soiled
baby blanket or a pack of gum. Imposing a requirement to identify each item
separately, regardless of lack of value, would furthermore add considerable
administrative burden without in any way advancing the purposes of the
Fourth Amendment to protect the public from “unreasonable searches and
seizures.”
547 F.3d at 371–72 (emphasis supplied).
28
More generally speaking, there is no charter for the idea that an imperfection in
executing an inventory search will, ipso facto, invalidate the entire procedure. In Colorado
v. Bertine itself, though the suppression hearing judge found as a matter of fact that “the
inventory of the vehicle was performed in a ‘somewhat slipshod’ manner,” 479 U.S. at
369, the Supreme Court did not hesitate to hold that the inventory was ultimately
reasonable. It did not even need to examine further the “slipshod manner” of the
inventory’s execution. As Colorado v. Bertine made perspicaciously clear, substantial
compliance does not require vying for the Olympic Gold in inventory listing. See also
United States v. Williams, supra; United States v. Loaiza-Marin, 832 F.2d 867, 869 (5th
Cir. 1987) (“[T]he agent’s failure to complete the inventory forms does not mean that the
search was not [a valid] inventory search.”); United States v. Trullo, 790 F.2d 205, 206 (1st
Cir. 1986) (declining to “hold that the officer’s failure, technically, to follow the inventory
form procedures for valuables meant it was not an inventory search.”); Commonwealth v.
Torres, 85 Mass. App. Ct. 51, 53–54, 5 N.E.3d 564, 566 (2014) (“Where the police fell
short was in documenting the search that had already been conducted. We agree with
the Commonwealth that this sort of after-the-fact documentation error does not by itself
invalidate an otherwise valid search.”); Commonwealth v. Baptiste, 65 Mass. App. Ct. 511,
518, 841 N.E.2d 734, 739 (2006) (“[A]ny defect in the vehicle inventory report or the
prisoner property inventory would not invalidate the inventory search.”). In his insistence
on exhaustive listing as a necessary badge of police integrity, the appellee stands alone. He
cites neither caselaw nor academic authority to support his position.
A Mixed Motive Is Not A Fatal Flaw
29
The appellee emits one last gasp. During Officer Rohsner’s communication with the
Police Dispatch unit, the officer received a “10–0” from dispatch, informing him that the
driver he was detaining might be armed. From this lone and unilluminated fact, the
appellee, on appeal, leaps to the immediate conclusion that from that moment on, the police
motive was necessarily and automatically the investigative motive of gathering evidence
of crime. The appellee contends:
It is evident that the decision to search the car arose not from genuine need
to impound the car and a desire to safeguard the items therein, but rather from
a desire to look for incriminating evidence. Even if the officers had followed
the standardized procedure contained in the General Order in impounding
and searching the car—which they did not—their blatantly investigatory
motive for conducting the search would render it invalid.
(Emphasis supplied). That is conspiracy theory run rampant.
We are not so quick to read the minds of the officers. Their psyches are not so one-
dimensional. The appellee’s rationale seems to be that the fact that the appellee might have
been armed necessarily tags the appellee as a criminal type and that, when dealing with a
criminal type, the officers will automatically conduct a search with an investigative purpose
to the exclusion of a community care-taking purpose.
The caselaw, however, does not agree with appellee’s facile conclusion that an
investigative purpose necessarily animates the search of anyone who may be involved with
criminal behavior. In Illinois v. Lafayette, for instance, the police were well aware that
Lafayette had already been arrested for disturbing the peace and was actually in handcuffs
when they conducted what was nonetheless held to have been a valid inventory search.
30
In both Colorado v. Bertine and Florida v. Wells, the defendants had been arrested
for driving under the influence of alcohol before any inventory was conducted. In Colorado
v. Bertine, the inventory was upheld as a valid one. In Florida v. Wells, the inventory was
examined as a possibly valid one but was ultimately struck down only because of the
absence of a standardized police procedure. A possible connection to crime on the part of
the suspect did not lead to the presumption that the police motive in conducting an
ostensible inventory would necessarily be an investigative one.
In Sellman v. State, Sellman himself was arrested for driving on a revoked license.
In Briscoe v. State, Briscoe was similarly arrested for driving on a suspended license. There
was, moreover, an open arrest warrant out for him. In each case, however, it was tentatively
accepted that the inventory search had been conducted for a proper non-investigative
purpose. In each case, the inventory search itself was accepted as being a proper one and
the reason for the ultimate reversals was exclusively because of the lack of evidence of any
standardized police policy. The appellee’s easy presumption as to police motivation,
therefore, does not automatically follow. We note again, moreover, that the appellee had a
full opportunity in this case to cross-examine both officers about the cautionary alarm that
they had received and about their reaction to it. Not one question, however, was asked. In
argument at the close of the suppression hearing, the brief reference to the issue by defense
counsel was glibly conclusory.
Your Honor, I would submit that the minute that they heard that he
was suspected of being in possession of a weapon this became a purely
disguised search for evidence in rummaging through the car.
(Emphasis supplied). That is lightning psychoanalysis.
31
Indeed, as Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112
(1990), solidly established, a reasonable warrantless seizure of evidence pursuant to the
Plain View Doctrine does not require the spotting of the probable evidence in plain view
to have been inadvertent.
Even when the police realistically possess some expectation of finding evidence of
crime, that does not represent some virulent taint that ipso facto contaminates the parallel
inventory purpose of the search. Even though neither the Supreme Court nor the Maryland
courts have had the occasion to examine the subject, the national caselaw is clear that the
two purposes may comfortably co-exist. They are not mutually antagonistic.
Once again, the United States Court of Appeals for the Second Circuit has provided
solid guidance in United States v. Lopez, supra. The two purposes are by no means
incompatible.
Lopez argues that in his case the procedures were not administered in good
faith because the officers were motivated by the expectation of finding
criminal evidence in his car. We believe this also misunderstands the Court’s
explanations. The Fourth Amendment does not permit police officers to
disguise warrantless, investigative searches as inventory searches. . .
. However, the Supreme Court has not required an absence of expectation of
finding criminal evidence as a prerequisite to a lawful inventory search.
When officers, following standardized inventory procedures, seize,
impound, and search a car in circumstances that suggest a probability of
discovering criminal evidence, the officers will inevitably be motivated in
part by criminal investigative objectives. Such motivation, however, cannot
reasonably disqualify an inventory search that is performed under
standardized procedures for legitimate custodial purposes.
547 F.3d at 372 (emphasis supplied).
32
As long as the established conditions for executing an inventory search are satisfied,
the addition of an investigative expectation does not invalidate that parallel justification.
Under the Supreme Court’s precedents, if a search of an impounded car for
inventory purposes is conducted under standardized procedures, that search
falls under the inventory exception to the warrant requirement of the Fourth
Amendment, notwithstanding a police expectation that the search will reveal
criminal evidence. If good faith is a prerequisite of an inventory search, the
expectation and motivation to find criminal evidence do not constitute bad
faith.
547 F.3d at 372 (emphasis supplied).
In the present case, the appellee’s flawed interpretation of the law would hold that
even if the police originally had a good-faith reason to inventory the appellee’s car, their
receipt of the alarm that appellee was possibly armed would, like some poisonous venom,
immediately transmute the good faith into bad faith. It will not. It did not in Lopez.
In the present case, while the officers may well have had an
investigative motivation to search Lopez’s car, the circumstances called for
the impoundment of his car, as Lopez was arrested for driving it while
intoxicated, and the impoundment required the conduct of an inventory
search. We find no reason to doubt that the Supreme Court’s standards for
the conduct of a warrantless inventory search were fully satisfied.
Id. (emphasis supplied).
The evidence suggesting that the police, before inventorying the contents of an
automobile, could plausibly have had an investigatory motive was far stronger in United
States v. Mundy, 621 F.3d 283 (3d Cir. 2010), than in the present case. The Court of
Appeals for the Third Circuit nonetheless held the inventory there to have been valid.
[B]oth Officers Chabot and Soto testified that they detected a strong odor in
the vehicle, which they identified as cocaine based on anecdotal evidence,
including its distinctive scent. . . . Such initial observations alone do not
suggest that the subsequent inventory search was conducted in bad faith.
33
621 F.3d at 294 (emphasis supplied).
The rationale for the defendant’s attack on an inventory search in Armstrong v.
State, 325 Ga. App. 690, 754 S.E.2d 652 (2014), parallels precisely the appellee’s thinking
in the present case.
Armstrong also contends that the warrantless search violated the
Fourth Amendment because the officer admitted prior to the search that he
suspected the car may contain contraband. Thus, Armstrong contends that
the officer conducted an illegal investigatory search without a warrant under
the guise of an inventory search.
754 S.E.2d at 654 (emphasis supplied). Notwithstanding that charge, the Georgia Court of
Appeals did not hesitate to hold the inventory search there to have been valid.
Because evidence showed that the impoundment of the car was lawful and
that the search was conducted in good faith pursuant to standard police
department procedure for a valid inventory purpose, the trial court’s denial
of the motion to suppress was supported by the evidence and will be affirmed
on appeal.
754 S.E.2d at 655 (emphasis supplied).
A similar claim that a possibly investigatory purpose contaminated an otherwise
proper inventory justification was rejected by the Massachusetts Appellate Court in
Commonwealth v. Baptiste, supra:
Even accepting the judge’s inference or ultimate conclusion that
Pagliaroni commenced the search of the vehicle while having some degree
of an unfounded suspicion regarding the substance he had earlier observed
on the center console, his subjective beliefs would not render the inventory
search impermissible. See Commonwealth v. Garcia, 409 Mass. at 679,
569 N.E.2d 385, quoting from Commonwealth v. Matchett, 386 Mass. 492,
510, 436 N.E.2d 400 (1982) (“fact that the searching officer may have
harbored a suspicion that evidence of criminal activity might be uncovered
as a result of the search should not vitiate his obligation to conduct the
inventory”).
34
841 N.E.2d at 739 (emphasis supplied).
The bottom line is that the two inducements for a search may live comfortably side
by side. They are not antagonistic, and the additional presence of an investigative purpose
will not erase the establishment of a solid inventory search justification. The undergirding
truth is that the contemporaneous possession of two desiderata does not mean that one of
them is a subterfuge. That, of course, would be the only reason for invalidating an otherwise
valid inventory search. Such a reason does not exist in the present case. Once again,
moreover, the appellee cites neither caselaw nor academic authority in support of his
inherent cynicism.
An Attitudinal Readjustment
One further word may be in order about the precedential limits of stare decisis. In
arguing this appeal, the appellee relies pervasively on language from a trilogy of opinions
filed by this Court, the first dating back over 40 years: Dixon v. State, 23 Md. App. 19, 327
A.2d 516 (1974); Manalansan v. State, 45 Md. App. 667, 415 A.2d 308 (1980); and Bell
v. State, 96 Md. App. 46, 623 A.2d 690 (1993), aff’d, 334 Md. 178, 638 A.2d 107 (1994).
Dixon, of course, we decided two years before the Supreme Court filed South Dakota v.
Opperman (1976). Manalansan and Bell followed in the attitudinal slipstream of Dixon.
The attitude of those opinions was extremely cynical about the very institution of the
inventory search and overtly editorial in tone. They are cited, moreover, not for any legal
analysis, but basically for their adverse comments on the police behavior in those cases. In
now distancing ourselves from that tone, we refrain from using a word as harsh as
35
“repudiate,” because the actual holdings of those cases were not necessarily incorrect as a
matter of law. The attitude and the tone of the opinions, however, reflected a zeitgeist that
is diametrically out of harmony with the now prevailing and more balanced understanding
of inventory search law that has in more recent decades come of age.
SUPPRESSION ORDER REVERSED AND
CASE REMANDED FOR TRIAL. COSTS
TO BE PAID BY APPELLEE.
36