Gill v. State

OPINION ON STATE’S MOTION FOR REHEARING

TEAGUE, Judge.

This is an appeal from a conviction for the offense of possession of a controlled substance, hydromorphone. After appellant entered a plea of not guilty, a jury found him guilty of the offense charged, and assessed his punishment at five years in the penitentiary and a fine of $5,000.

On original submission, a majority of a panel of this Court 1 held that the warrant-less search of the locked trunk of the automobile 2 appellant was sitting in when arrested was an unreasonable search. Appellant was prosecuted for possession of hydro-morphone found in a grocery store type bag that was seized as a result of the search.

We granted leave to the State to file its motion for rehearing, which limits itself without citation of authority to the contention that the search of the trunk was an “inventory search,” and argues that it was conducted solely for the purpose of insuring “the security of the contents of the vehicle prior to [the police] turning it over to the private storage facility.”

The State’s motion for rehearing is denied for reasons stated herein.

Finding that all of the opinions previously written sufficiently state the facts of the ease, we do not restate them, except when necessary to this opinion.

An “inventory search,” when the term is used in the context of searching automobiles, was first established by the Supreme Court of the United States in South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976). There, the Supreme Court recognized that “automobiles are frequently taken into police custody,” after which it becomes necessary to secure and inventory the contents of a lawfully impounded automobile. The facts in Opper-man show that because of an overparking violation, the police towed the defendant’s automobile to “the city impound lot.” There, “. . . using a standard inventory form [prepared] pursuant to standard police procedures, the officer [thereafter] inventoried the contents of the automobile, including the contents of the glove compartment, which was unlocked. There he found marihuana contained in a plastic bag,” which marihuana resulted in the prosecution of the defendant. The Supreme Court upheld the “inventory search” of the automobile, for the following reasons:

*318 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, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra [386 U.S.] at 61-62, 87 S.Ct. 788 [at 790-91], 17 L.Ed.2d 730 . The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522 , 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073 , 92 S.Ct. 1501 , 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376 , 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.

Justice Powell, in fn. 6 of his concurring opinion, points out that the trunk of the automobile “had not been searched in this case because it was locked.” As to locked compartments of an automobile, see also fn. 1 of Justice Marshall’s dissenting opinion. Justice Powell also pointed out:

.. . Inventory searches, however, are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.

Opperman ⅛ facts do not involve the factual situation of an inventory search of a locked trunk of an automobile. In fact, as to a locked trunk of an automobile, entered into in the context of a true inventory search, our research has not revealed a single Supreme Court case since Opperman which discussed that issue. Some cases, however, appear to be in point, but we find they are distinguishable. Cady v. Dombrowski, 413 U.S. 433 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973), is not in point for, as the majority of the panel here so clearly pointed out: “. . . the officers there had probable cause to believe that the gun which they were seeking was in the trunk.” (Emphasis added.) We find that conclusion is founded upon the following language set out in Cady .

Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments. ( 413 U.S. at 448 , 93 S.Ct. at 2531 , 37 L.Ed.2d at 718 ) (Emphasis added.)

Nor are the recent cases of Robbins v. California, 3 -U.S. -, 101 S.Ct. 2841 , 69 L.Ed.2d 744 (1981); or New York v. Belton, - U.S. -, 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981); in point for in neither of those cases was the Court confronted factually with' an inventory search of “a locked trunk of an automobile,” as we have defined that phrase. See fn. 2, supra.

What is often overlooked, when the issue concerns a true inventory search of an automobile, is the very simple fact that “An inventory search is not based upon probable cause — probable cause is an irrelevant action ...” C. Moylan, “The Inventory Search of an Automobile: A Willing Suspension of Disbelief,” The Prosecutor’s Deskbook, 189 (2nd Ed.). See also, M. Hermann, “Inventory Searches After South Dakota v. Opperman,” Vol. 6, No. 11, Search and Seizure Law Report (November, 1979). In short, the expression, “inventory search,” is not a talisman in whose presence the Fourth Amendment or Art. I, Sec. 9, of *319 the Texas Constitution fades away and disappears. E.g. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971).

A true inventory search of an automobile, occurring outside the legal concepts of probable cause or search incident to a lawful arrest, is just that and nothing more. It means that, using a standard inventory form prepared pursuant to standard police procedure, a police officer or his agent lawfully inventories the contents of a lawfully impounded motor vehicle. E.g. Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980); Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980). Because the officer or his agent is doing nothing more than taking stoek of loose items of personal property found in the vehicle, items of personal property found in plain view or in unlocked compartments of the vehicle may be seized. In this context, a seizure of items found in an unlocked trunk of an automobile is permissible. The issue here is not whether the police had the lawful right to seize the grocery store type bag and examine its contents, but whether the police had the lawful right to forcibly enter the locked trunk of the automobile. Therefore, we do not find it necessary to discuss the fine legal distinctions between the search and seizure of open and unopened containers and their contents found in an automobile. See, however, Araj v. State, 592 S.W.2d 603 (Tex.Cr.App.1980); Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979).

The concept of a true inventory search is not an exception to the warrant requirement of either the Fourth Amendment or of Art. I, Sec. 9 of the Texas Constitution. A true inventory search need not be predicated upon the same requirements for either a showing of probable cause or obtaining a search warrant. Its existence really rests upon the caretaking responsibility a police officer has toward a lawfully impounded automobile. Daniels, supra. Here, the State fails to observe the distinction between a true inventory search and the requirement for probable cause for execution of a warrantless search. Absent a showing of probable cause and exigent circumstances, a warrantless search of a locked automobile trunk is per se illegal. Compare, Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977); Coolidge v. New Hampshire, supra; State v. Opperman, 247 N.W.2d 673 (S.D.1976) (On Remand from the Supreme Court).

Additionally, the State overlooks the differences between one’s expectation of privacy in a locked trunk of an automobile and the interior of an automobile. First, items of personal property located in the interior of an automobile can be seen in plain view, while objects in the trunk are completely hidden from an external view by the opaque nature of the trunk. Second, it is much more difficult for someone to break into a locked trunk than into the interior of a motor vehicle, as evidenced by the facts in this cause, since the interior of the vehicle, if locked from either the inside or the outside, can be entered merely by breaking a window or a vent; while the locked trunk of an automobile must have its lock forcibly picked, broken, or removed, or forced entry must be accomplished by other means, such as removing the interior back seat of the vehicle, as done here.

The second reason is also sufficient to outweigh the purposes of an inventory search of a locked trunk. If the locked trunk cannot be entered without the use of substantial force, it is unlikely that the police would be charged with losing or misappropriating items of personal property found therein, and the possibility of theft or vandalism by other persons of the locked trunk’s contents is sufficiently minimized that the prophylactic purposes of the inventory search are not sufficient to outweigh the owner’s expectation of privacy in the locked trunk. This expectation of privacy in a locked trunk can be outweighed or overcome only by a reasonable expectation or the showing of probable cause that, for example, the trunk contains a dangerous instrumentality, such as a gun or a bomb. Cady v. Dombrowski, supra. Additionally, *320 the force needed to get into the locked trunk of the automobile in question demonstrates that the purposes of an inventory search were not sufficiently strong to overcome appellant’s privacy interests. Such interests can be overcome only by the showing of probable cause to believe some dangerous instrumentality, contraband, or fruits of a crime are contained therein, and exigent circumstances exist to preclude the need to obtain a warrant. Cf. Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975).

We find that the State’s attempt to sustain the search of the locked trunk of the automobile in question, under the concept of the search being a true inventory search, is grounded upon Officer Lawrence’s testimony that “we asked the wrecker driver to pull the seat back so we could inspect the trunk ...” (Emphasis added.) Another portion of Lawrence’s testimony, however, is more revealing and actually sustains our analysis. “We asked him [the wrecker driver] to remove the back seat [in order to get into the trunk] and he knew how and we didn’t.” (Emphasis added.)

We conclude that the argument the State makes to sustain this search is nothing more than advocating that a routine lawful arrest of a suspect in an automobile authorizes a search of virtually every nook and cranny of that automobile. We, however, do not agree to or accept this proposition as being either a valid or viable principle of law under the search provisions of our respective constitutions, or the interpretations made thereof by this Court.

Neither do we find that the reasons given by the State to justify the forced entry into the locked trunk of the automobile reflect sufficient reasonable circumstances which would authorize a warrantless search. We find that the chain of inferences advocated by the State, to establish without a showing of probable cause a lawful intrusion into the locked trunk, is too tenuous for this Court to sustain this search. Compare, • Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972).

Here, as the police officers had lawfully impounded the automobile, they had the lawful right to perform “caretak-ing” functions regarding it. However, under the facts presented, they did not have the lawful right to forcibly enter the locked trunk of the automobile. Under both of our constitutions, the forced entry into the locked trunk of the automobile constituted an unlawful intrusion.

We therefore find, after a careful review of the record, that the State’s motion for rehearing is without merit, and it is ordered denied.

ROBERTS, DALLY, W. C. DAVIS, and McCORMICK, JJ., concur in result.

. The date of the majority’s opinion is May 28, 1980, and the opinion was authored by Roberts, J., with Clinton, J., concurring in the judgment with opinion, and with Douglas, J., dissenting with opinion.

- The term “automobile trunk,” or the phrase “trunk of an automobile,” as used herein, means the exterior enclosed compartment of a closed-body automobile in which luggage or items of personal property may be stored, and where the spare tire of the automobile is usually kept, with normal entry accessible only by activating a device found inside the interior of the automobile or by inserting a key into an exterior lock of the automobile.

. We note that the Supreme Court has, see 30 Cr.L. 4035, October 14, 1981, granted certiorari in U. S. v. Ross,-U.S.-, 102 S.Ct. 386 , 70 L.Ed.2d 205 , to address the question whether the Court should reconsider Robbins .