State v. Cornwall

ORME, Judge

(concurring):

I concur in the court’s opinion but write separately to highlight an aspect of our decision that is only implicit in the main opinion.

Just as in the context of automobile inventory searches, routinized adherence to an articulated search protocol is critical to sustaining an administrative search as reasonable. As this court recently stated in the inventory search context,

[sjuch a procedure precludes the possibility that officers conducting inventory searches will act arbitrarily and only selectively open containers. Further, such a procedure insulates police from the claim that, in a particular case, their opening closed containers was nothing more than a “fishing expedition.” It also promotes a certain equality of treatment. With a standardized, mandatory procedure, the minister’s picnic basket and grandma’s knitting bag are opened and inventoried right along with the biker’s tool box and the gypsy’s satchel.

State v. Shamblin, 763 P.2d 425, 428 (Utah Ct.App.1988).

In the instant case, uncontroverted testimony establishes that the bailiff conducted the magnetometer and x-ray screening and the ensuing search strictly in accordance with the established protocol. No claim is made on appeal that the bailiff deviated from the routine that is followed in all situations where the x-ray reveals “a dark, indistinct mass.”

Thus, I infer that the protocol routinely followed when a container enclosing such a mass also contains other closed containers is that the other containers — or, more accurately, those large enough to contain the mass which has aroused curiousity — are immediately opened and individually inspected rather than to first individually x-ray the smaller containers.

As the main opinion observes, the bailiff “discovered that [the large bag] contained two purses, and she could not see from examining the outside of the purses whether either purse contained a weapon or dangerous object.” Of course, further insight might have been gained with less intrusion had each purse been individually x-rayed as the next step. But on the record before us, that is not what the search protocol requires. Neither does the Fourth Amendment. Use of an x-ray is essentially gratuitous, an accommodation to the privacy concerns of the public and/or a convenience to those conducting the searches. So long as proper notice is posted, the Fourth Amendment is not violated at other court locations where the practice is to simply physically inspect the briefcases, bags, and purses of all persons seeking to enter the courthouse.