rejecting, in case involving charge of interstate flight to avoid prosecution, defendant’s argument that detective had no probable cause to seize Spanish-language document for later translation where “[wjithout translation, ... the document indicates on its face that it originated in the Dominican Republic, and it was found together with navigational aids”
How later courts described this case
- rejecting, in case involving charge of interstate flight to avoid prosecution, defendant’s argument that detective had no probable cause to seize Spanish-language document for later translation where “[wjithout translation, ... the document indicates on its face that it originated in the Dominican Republic, and it was found together with navigational aids”
- holding that even though a detective knew he "lacked probable cause to obtain a search warrant" and was aware of the defendant's "fugitive status," the "mere fact that an inventory search may also have had an investigatory purpose does not ... invalidate it"
- recognizing necessity of “established police department rules or policy [so that] the officer does not make a discretionary, and perhaps arbitrary[,] determination to search”
- explaining that functional violation of separation of powers exists where one governmental branch unjustifiably assumes a function more appropriately entrusted to another
Written by the judges who cited it.
The opinion
HUTCHINSON, Circuit Judge,
dissenting:
I agree with the Court that Frank waived his right to challenge the Attorney General’s consent to his prosecution for interstate flight. Accordingly, I would not reach the merits of this issue. I respectfully dissent from Part III A of the Court’s opinion in which it finds the search of Frank’s rented car a legal inventory search and affirms the district court’s denial of Frank’s motion to suppress materials seized in that search. I believe this question poses an issue of law and our scope of review is plenary. Because I also believe the denial of this motion constituted prejudicial error warranting a new trial, I would not reach the issue of the constitutionality of the federal sentencing guidelines.
An inventory is not an incantation. In the absence of a defined a priori policy, an inventory done to protect property for its owner and the police from danger of an owner’s false claims of loss or theft cannot be objectively distinguished from a search for evidence of crime.
The Court correctly recites the practical reasons why an inventory of a lawfully impounded car, unlike an investigative search for evidence of crime, does not require probable cause before a police officer makes it. See South Dakota v. Opperman, 428 U.S. 364 , 370 n. 5, 96 S.Ct. 3092 , 3097-98 n. 5, 49 L.Ed.2d 1000 (1976), quoted by the Court in note 1 of its opinion. The problem I see is not whether there are reasons for the inventory exception, but whether the pre-existing policy of the Allegheny County police on inventories was defined to the minimal extent necessary to distinguish a routine inventory from a search for incriminating evidence. I think that Colorado v. Bertine, 479 U.S. 367 , 107 S.Ct. 738 , 93 L.Ed.2d 739 (1987), requires a policy which sets an inventory apart from a criminal investigation, not one which engulfs it. 1
In this case we have an unwritten policy that permits the officer charged with investigating the crime to which an impounded car is connected to inventory that car’s contents in such detail as he sees fit, when he has time to do it. I do not believe this “policy” is definite enough to draw an objective line between a routine inventory, subject only to general standards of reasonableness, and an investigation for evidence of crime, which requires probable cause.
In reliance on dictionary definitions, the Court first states that an “inventory” is an “inventory” and therefore the policy need not define the scope of an inventory search. *1017 It supports this conclusion with an assertion that insistence on a definite policy as to scope will merely encourage the police to adopt a policy of maximum intrusiveness.
I believe the term “inventory” is neither self-defining nor trapped in synonyms such as “list,” “catalog,” or “description of each specific article.” The articles in a car might be specifically described as “three traveling bags and three briefcases.” They may be more specifically described as “three traveling bags and three briefcases, each briefcase containing five manila folders.” They might be still more specifically described as “three traveling bags and three briefcases, each containing five folders, marked and identified as follows, the contents of which are described in further detail in Schedule A.” The specificity of the assumed inventory might even need further elaboration, as lawyers who inventory household effects in estates of various kinds know all too well when disputes arise among beneficiaries.
Inventories are more or less specific depending on their purpose. If a locked bag in the locked trunk of an impounded car is noted as locked as soon as it comes into police possession, is safely stored, tagged, and returned to the owner as such, the police may believe they have reasonably protected the owner’s property interest and their own interest in rebutting false claims. They may, of course, wish more secure protection and so provide, as a matter of policy, that a locked bag shall be opened and its contents listed. In either case, they seem to me to meet the Bertine standard. They may even decide to require the listing of each file, package, and paper in the locked bag and still arguably meet that standard. At some point, however, practical concerns such as the absence of infinite time and the press of other responsibilities will figure in the definition of the policy. A busy metropolitan police department is neither likely to adopt nor long follow a policy of precisely listing the contents of each locked bag and each document in that bag in the face of strained urban budgets and limited manpower. Accordingly, I do not believe it is self-evident that the requirement of a reasonably precise policy concerning the scope of an inventory search is likely to lead to a policy of maximum intrusion.
The Supreme Court in Opperman, Bertine, and Illinois v. Lafayette, 462 U.S. 640 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983), teaches us that an inventory policy must have enough precision to distinguish an inventory from a search for evidence of crime. If the stated policy does not objectively permit that distinction, the police will have secured for themselves discretion to search with or without probable cause. I read Opperman, Bertine, and Lafayette to forbid that discretion.
Like the Court, I would not wish to impose on our district judges the almost impossible task of inquiring into the mixed motives of a police officer who makes an inventory and comes upon evidence of crime, before deciding whether that evidence is admissible. A reasonably precise pre-existing definition of an inventory’s permissible scope helps avoid that inquiry.
The need for a policy which objectively and distinctly separates inventories from searches for evidence of crime is pointed up by the facts of this case. The Court approves an unwritten policy to inventory the contents of every impounded car when the scope of the search is defined by the investigating officer, more or less at his convenience. This policy fails to realistically distinguish neutral inventories from searches for criminal evidence. On the present facts, it does not even adequately meet the common sense reasons why vehicular inventories are permitted without warrant or probable cause. Frank’s car was impounded on a Thursday. No inventory was taken when it was towed to the impoundment lot. It sat in the lot without any listing of its contents until the next Tuesday when Detective Fox, the investigating officer in charge of the state’s case against Frank, could conveniently make an inventory. During that time the police made no record to protect either Frank’s interest or theirs by recording the property Frank had in the car when the police received it, nor any investigation to determine whether the contents of the car posed any danger.
*1018 The policy shown on this record neither distinguishes an inventory from an investigation nor serves the practical reasons for an inventory exception to the requirement of probable cause. Accordingly, I believe it is insufficient to satisfy even Opperman let alone Bertine .
Alternately, the Court construes Frank’s request, made three days after he was taken from his rented car and arrested, that his property left in it be returned to his family as an implied consent to a search of the locked bag. This may prove too much. Every person who has property in a seized vehicle can be presumed to want its return. If the police then hold the property long enough to engender an inquiry about it, they become free to conduct an ad hoc inventory for whatever purpose, in whatever detail they wish when that inquiry comes. By itself, I do not believe such a request to return personal property to one’s family is a consent to search.
Moreover, the theory of implied consent was raised by the Court, not the parties. The government sought throughout this case to justify the search of Frank’s bag solely on the inventory exception to the probable cause requirement. The facts relevant to a consensual search were not developed on this record. We do not know the context of Frank’s request, precisely what he said to the police, or what they said to him when he asked for the return of his property. I believe it is wrong to justify this search on a theory the government never raised, the defendant never had a fair chance to rebut, and the suppression court did not have a chance to consider. I have stated my agreement with the Court’s determination that Frank waived his right to challenge the Attorney General’s consent to this prosecution. I think it equally clear that the government waived reliance on Frank’s consent as a justification for the search of his automobile.
I would therefore hold that the denial of Frank’s motion to suppress the evidence found in the locked bag in the trunk of his rented car, particularly the damaging application in Spanish for residency in the Dominican Republic, was prejudicial error. I would remand for a new trial excluding that evidence if the government elects a retrial within a reasonable time.
. In Bertine , Chief Justice Rehnquist wrote for the Court: "We emphasize that, in this case, ... the police department’s procedures mandated the opening of closed containers and the listing of their contents. Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria.” Colorado v. Bertine, 479 U.S. 367 , 107 S.Ct. 738 , 742 n. 6, 93 L.Ed.2d 739 (1987) (emphasis supplied). Justice Blackmun, joined by Justices Powell and O’Connor, concurred and wrote separately "to underscore the importance of having such inventories conducted only pursuant to standardized police procedures.” Id., 107 S.Ct. at 744 . This requirement is necessary to sufficiently control police discretion in deciding the scope of a search and, in turn, to prevent inventory searches from being used "as a purposeful and general means of discovering evidence of crime.” Id.