Petition — South Dakota v. Opperman

mprae Goon, © 6.

ILEQD

SUPREME COURT OFTHE

tH we

IN THE

UNITED STATES

1974-75 TERM

No. _@9-%6

STATE OF SOUTH DAKOTA,

Petitioner

VS.

DONALD OPPERMAN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH DAKOTA

WILLIAM J. JANKLOW

Attorney General of South Dakota

EARL R. METTLER

Assistant Attorney General

Attorneys for Petitioner

State Capitol Building

Pierre, S.D. $7501

Page

ls ow ain, ove 2

Il. GROUND ON WHICH JURISDICTION

ee re va ee wey 2

Ill. QUESTION PRESENTED ...............2

_ IV. CONSTITUTIONAL PROVISIONS INVOLVED .. .2

V. STATEMENT OF THECASE ............. 2

VI. REASONS FOR GRANTING CERTIORARI ...... 4

A. THE JUDGMENT BELOW [S IN CONFLICT

WITH THE DECISIONS OF THIS COURT . . .4

B. THERE IS A CONFLICT BETWEEN

THE STATE COURTS CONCERNING

THE QUESTION PRESENTED ......... 6

C. THERE IS A CONFLICT AMONG

THE FEDERAL COURTS OF APPEAL

ON THE QUESTION PRESENTED ....... 9

re a he a ee 8 ee 10

APPENDIX A. Opinion of the South

Dakota Supreme Court ........ 11

B. Ruling of the South

Dakota CircuitCourt ......... 28

CASES

Boulet v. State, 17 Ariz. App. 64, 496 P. 2d $04(1972) . .7,8

Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.

ee ee eee 7

Cady v. Dombrowski, 413 U.S. 433,(1973) ........ 4,5

Cady v. Dombrowski, 471 F. 2d 280 (7th Cir. 1974),

soversed, 683 US. 433 (1973) 2... wee ween 9

Carey v. Gammons, 475 F. 2d 1397 (3rd Cir. 1973),

judgment vacated, 414 U.S. 807(1973) ......... 6,9

ii

INDEX

Page

City of St. Paul v. Myles, 218 N.W. 2d 697 (Minn. 1974) . . .7

Coolidge v. New Hampshire, 403 U.S. 443,466 ....... 5

Cooper v. California, 386 U.S.58(1967) ........ 4,5,7

Dixon v. State, 16 Crim. L.R. 2140 (Md. Spec. App: 1974) .7

Embree v. State, 488 P. 2d 588 (OkI.Cr.1971) ....... 7

Fruit v. State. Ok. Cr. App. _—. , 16 Crim. L.R.

Se Cee 6 wk nels 6 ee eae ea ee es 8

Godbee v. State, 224 So. 2d 441 (Fla. App. 1969) ...... 7

Gravitt v. United States, 484 F. 2d 375 (Sth Cir. 1973)

cort. denied 414 U.S. 1138 (1974) .. ww we cc we ee 6

Harris v. The United States, 390 U.S. 234(1968) ..... 4,5

Heffley v. Hocker. 420 F. 2d 881 (9th Cir. 1969)

judgment vacated, 399 U.S.521(1970) ......... 6,9

Heffley v. State, 83 Nev. 100, 423 P. 2d 666 (1967) ... .7,8

Mayfield v. United States, 276 A. 2d 123 (D.C. App. 1971) .7

Mozetti v. Superior Court of Sacramento County, 4 Cal.

3d 699, 94 Cal. Rptr. 412, 484 P. 2d 84(1971) ..... 7,8

People v. Sullivan, 29 N.Y. 2d 69, 323 N.Y.S. 2d 945, 272

N.W. 2d 464 (1971) reversing, 35 A.D. 2d 690, 315 N.Y.S.

Re ee ae a ae YS 7

People v. Trusty,____Colo. __., 516 P. 2d 123 (1973) ....7

People v. Willis, Mich.____ , 208 N.W. 2d 204(1973) . .7,8

St. Clair v. State, 11 Md. App. 605, 232 A. 2d 565 (1967) . .7

State v. Achter, Mo. , 512 S.W. 2d 894(1974) ... .7

State v. Bradshaw, 41 Ohio App. 2d 48, 322 N.W. 2d

DOCG 0 6 6 6 wd OS 6 2 x hc tee 7,8

State v. Criscola, 21 Utah 2d 272, 444 P. 2d 517(1968) . . .7

State v. Gowans, 18 Ariz. App. 110, 500 P. 2d 641 (1972) . .8

8

State v. Gwinn,___. Del. ___, 301 A. 2d 291 (1973) . . . .7,

State v. Montague, 73 Wash. 2d 381, 438 P. 2d

PGE cuéutiSs o4¢ dss aus. 7,8

State v. Nemrod,___N.M.___., 509 P. 2d 885 (1973) ....7

State v. Raiford, 7 Or. App. 302, 490 P. 2d 1936(1971) . . .7

iii

INDEX

State v. Wallen, 185 Nebr. 44, 173 N.W. 2d 372(1970) . 7,8

Thomas v. Washington, unreported, summary at 41

L.W. 3478, cert denied 413 U.S. 921 (1973) ........ 6

United States v. Capra, 501 F. 2d 267 (2nd Cir. 1974) ... .9

United States v. Davis, 496 F. 2d 1026 (Sth Cir. 1974) ... .8

United States v. Fuller, 433 F. 2d 533 (D.C. Cir. 1970) )

United States v. Lawson, 487 F. 2d 468 (8th Cir. 1973) 8

United States v. Lipscomb, 435 F. 2d 795 (Sth Cir. 1970),

cert. denied 401 U.S.980(1971) ............. 6

United States v. McDevitt, 508 F. 2d 8 (10th Cir. 1974) .. .9

United States v. Mitchell, 458 F. 2d 960 (9th Cir. 1972) .. .9

United States v. Pennington, 441 F. 2d 249 (Sth Cir.

1971), cert. denied 404 U.S. 854(1971) ......... 6,9

United States v. Robbins, +24 F. 2d 57 (Sth Cir. 1970),

cert. denied 402 U.'S.985 (1971) ............. 6

United States v. Roe, 495 F. 2d 600 (10th Cir. 1974) bone

United States v. Sifventes, 504 F. 2d 845 (4th Cir. 1974) . .9

Warrix v. State, 50 Wis. 2d 368, 184 N.W. 2d 18''( 1971) 7

FEDERAL STATUTES

SR re ae ee ee 2

l

(IN THE

SUPREME COURT OF THE

UNITED STATES

1974-1975 Term

| No.

STATE OF SOUTH DAKOTA,

Petitioner,

vs.

DONALD OPPERMAN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH DAKOTA

Petitioner, the State of South Dakota, respectfully prays that

a Writ of Certiorari issue to review the judgment and opinion of

the Supreme Court of South Dakota entered in this proceeding

on April 15, 1975.

2

I. OPINION BELOW

The opinion of the Supreme Court of South Dakota is

reported at 228 N.W. 2d 152 (1975) and is attached hereto as

Appendix A. The South Dakota trial court made an oral ruling

from the bench on the Motion to Suppress which presented the

legal issue involved in this Petition. A transcript of this oral

ruling is attached hereto as Appendix B.

fl. GROUND ON WHICH

JURISDICTION IS INVOKED

The judgment of the South Dakota Supreme Court was

entered on April 15, 1975. This Petition for Writ of Certiorari

was filed within ninety (90) days of that date. The jurisdiction

of this court is invoked under 28 U.S.C. 1257(3).

Ill. QUESTION PRESENTED

Whether the South Dakota Supreme Court erred in holding

inadmissible evidence found in the glove compartment of a

vehicle during a lawful inventory of the contents of the vehicle

by police, which inventory followed the impoundment of the

vehicle for parking violations, on the ground that the inventory

was an illegal search under the Fourth Amendment of the

United States Consitution.

IV. CONSTITUTIONAL PROVISIONS INVOLVED

The federal constitutional provision involved is the Fourth

Amendment of the United States Constitution:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probably cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

V. STATEMENT OF THE CASE

During the early morning hours of the 10th day of

0+ REN

3

December, 1973, a Vermil'ion, South Dakota, police officer

issued a parking ticket to an automobile pursuant to a

Vermillion ordinance which prohibits p: king in the downtown

area from 2:00 A.M. to 6:00 A.M. Ai approximately 10:00

A.M. on the morning of December 10th. a meter maid for the

City of Vermillion issued another ticket to the automobile for

an expired parking meter violation. After completing her

rounds, the meter maid returned to the station and informed

police officer Robert Frank that the vehicle had been issued

icket.

ae ta then went to the vehicle and inspected the

tickets. He called the towing service which was on call to the

department that month and had the car towed to the city

; . ¢

Se une lot had >een the scene of past incidents of

theft from locked cars kept there. Officer Frank observed a

watch and numerous other items inside the car on the

dashboard and on the backseat.

The cfficer then inventoried these items pursuant to the

standard police department procedure. Using a tool kept by the

tow truck operator, the officer unlockea the car and filled out a

standard inventory sheet. The inventory covered the exterior

condition, the seats, floor, and dashboard of the car, and the

console glove compartment, which was closed but not locked. A

quantity of marijuana was found in the glove compartment.

At 5:00 P.M. that day, Donald Opperman, the registered

owner of the vehicle, appeared at the Police Department and

received from the police the items of personal property that

were not seized.

A complaint charging M . Opperman with possession of less

than one ounce of mariju:.na was issued on the 20th day of

December, 1973. On that date, he was arrested and taken

magistrate.

“<7 trial held on February 2!, 1974, Mr. Opperman was

convicted of the above offense.

4

VI. REASONS FOR GRANTING CERTIORARI

A.THE JUDGMENT BELOW IS IN CONFLICT WITH THE

DECISIONS OF THIS COURT.

The decision of the South Dakota court in this case is in

conflict with Cady v. Dombrowski, 413 U.S. 433 (1973),.on the

question of whether evidence discovered inadvertently by police

during a lawful examination of the contents of a legally

impounded automobile is admissible. The decision is in conflict

with Harris v. The United States, 390 U.S. 234 (1968), and with

Cooper v. California, 386 U.S. 58 (1967), on the question of

whether the purposes of safeguarding an automobile owner's

property and protecting the police allow a full inventory of an

automobile that is lawfully in police custody. The decision

conflicts with Cooper, supra, on the question of whether a

lawful inventory of an automobile includes an inventory of the

contents of an unlocked glove compartment.

In Cady v. Dombrowski, supra, the defendant’s automobile

was towed from an accident and searched because it was

believed that a weapon was in the car. This Court upheld the

search emphasizing that (1) the car was in policy custody

because it had to be moved and stored or it would have

constituted a nuisance, and (2) the motive for the search was

not to find incriminating evidence but to follow a standard

police procedure. 413 U.S., at 442, 443. Both of these factors

were clearly present in the instant case.

First, as in Cady, the automobile here was not

.. Simply momentarily unoccupied on a street. Rather,

like an obviously abandoned vehicle, it represented a

nuisance, and there is no suggestion in the record that the

officers’ action in exercising control over it by having it

towed away was unwarranted either in terms of state law

or sound police procedure.

5

413 U.S., at 447. Mr. Opperman did not contend, nor did the

South Dakota courts find, that the impoundment was illegal.

Second, it is equally clear that the motive was not to find

evidence but to follow standard police procedure. The

investigating officer did not know the defendent, had not seen

the automobile before, and had no reason to think the

automobile might contain incriminating evidence. .

A large number of items were inside the car, including

personal papers, shotgun shells, tapes, speakers, spark plugs, a

class ring, etc. The lot in which impounded automobiles were

stored had been the scene of past instances in which property

had been stolen from locked cars.

The officer inventoried the condition of the exterior of the

automobile and the conten’s of the interior, as was done for all

impounded automobiles, ard filled out a standard police form.

Thus in both Cady and the present case, the police came into

contact with the vehicl: because of their non-criminal

community caretaking duties in the area of traffic regulation,

and in both cases the purpose of their examination of the

vehicle was something oth2r than a search for incriminating

evidence. The purposes of the inventory in this case were to

safeguard the owner’s property and to protect the custodians of

the vehicle. These purposes were recognized in Harris v. United

States, 390 U.S. 234 (1968) and in Cooper v. California, 386

U.S. 58 (1967). Tr

In both Cooper and the present case the incriminating

evidence was found in the glove compartment of the vehicle

during an inventory. However, the South Dakota court held

that an inventory must be restricted to safeguarding articles

which are within the plain view of the officer’s vision.

In Cady, this court held that the analysis of Harris was

controlling. 413 U.S., at 442. Under this analysis, if the officer's

presence is for a justified purpose, evidence which comes within

his plain view is admissible. Coolidge v. New Hampshve, 403

US. 443, 466 (1971).

6

In the present case the officer’s presence and opening of the

glove compartment were justified under Cady, Harris and

Cooper, and the evidence discovered should have been held

ad missible.

in addition to being in conflict with these decisions, the

present case conflicts with other actions of this Court regarding

inventories of automobiles. In several cases this Court has

denied certiorari where the opinion below upheld an inventory

search. Gravitt v. United States, 484 F. 2d 375 (Sth Cir. 1973),

cert. denied 414 U.S. 1135 (1974); Thomas y. Washington,

unreported, summary at 41 L.W. 3478, cert. denied, 413 US.

921 (1973); United States v. Pennington, 441 F. 2d 249 (Sth

Cir. 1971), cert. denied 404 U.S. 854 (1971); United States v.

Robbins, 424 F. 2d 57 (Sth Cir. 1970), cert. denied 402 US.

985 (1971); United States v. Lipscomb, 435 F. 2d 795 (Sth Cir.

1970), cert. denied 401 U.S. 980 (1971). ?

In two cases, lower court judgments holding an inventory

illegal were vacated. Carey v. Gammons, 475 F. 2d 1392 (3rd

Cir. 1973), judgment vacated, 414 U.S. 807 (1973); Heffley v.

Hocker, 420 F. 2d 881 (9th Cir. 1969), judgment vacated, 399

U.S. 521 (1970).

In this case there is no question that the impoundment was

legal. There is absolutely no basis for even the slightest

suggestion that the motive for the inventory was anything other

than compliance with standard police procedure. The scope of

the inventory did not exceed that of the inventory in Cooper.

Yet in spite of these facts and the governing decisions of this

Court, the South Dakota court held that the inventory was an

illegal search. Thus the decision is in clear conflict with the

relevant decisions of this Court.

B. THERE IS A CONFLICT BETWEEN THE STATE COURTS

CONCERNING THE QUESTION PRESENTED.

A large number of automobile inventory cases have been

decided by state courts in recent years. A review of these cases

7

reveals a number of fundamental differeuces in judicial response

to the inventory situation.

Courts have both upheld 1/ and struck down 2/ inventories in

a substantial number of cases. While ihe reasonableness of a

search always depends on the facts of the particular case,

Cooper, supra, 386 U.S. at 59, a decision by this Court in the

present case would reduce the conflicting results of the

decisions of the state courts. It would reduce the inconsistent

resolution of the questions of when an inventory may te

conducted and what the scope of the inventory may be.

1/ State v. Achter, Mo. , 512 S.W. 2d 894 (1974); City o/ 5:. Paul

v. les, 218 N.W. 2d 697 (Minn. 1974); People v. Sullivan, 29 \ .Y. 2d

69, 323 N.Y.S. 2d 945, 272 N.E. 2d 464 (1971), reversing, 35 A.D. 2d

690, 315 N.Y.S. 2d 274 (1970); State v. Raiford, 7 Or. App. 302, 490

P. 2d 1036 (1971); Cabbler v. Commonwealth, 212 Va. 520, 184S.E.

2d 781 (1971); Warrix v. State, 50 Wis. 2d 368, 184 N.W. 2d 189

(1971); State v. Wallen, 185 Neb. 44, 173 N.W. 2d 372 (1970); Godbee

y. State, 224 So. 2d 441 (Fla. App. 1969); State v. Criscola, 21 Utah

2d 272, 444 P. 2d 517 (1968); State v. Montague, 73 Wash. 2d 381,

438 P. 2d 571 (1968); St. Clzir v. State, 11 Md. App. 605, 232 A. 2d

565 (1967); Heffley v. State, 83 Nev. 100, 423 P. 2d 666 (1967);

People v. Trusty, Col. _., 516 P. 2d 123 (1973); People v. Willis,

46 Mich. App. 436, 208 N.W. 2d 204 (1973). .

2/ State v. Bradshaw, 41 Ohio App. 2d 48, 322 N.E. 2d 311 (1974);

Dixon yv. State, 16 Crim. L.R. 2140 (Md. Spec. App. 1974); State v.

Gwinn,___ Del.___. ,. 301 A. 2d 291 (1973); State v. Nemrod, 85 N.M.

111, 509 P. 2d 885 (1973); Boulet v. State, 17 Ariz. App. 64, 496 P. 2d

504 (1972); Mozzetti v. Sup: rior Court of Sacramento County, 4 Cal.

3d 699, 94 Cal. Rptr. 412, 434 P. 2d 84 (1971). See Embree v. State,

488 P. 2d 588 (Okl. Cr. 19°11); Mayfield v. United States, 276 A. 2d

123 (D.C. App. 1971).

While the South Dakota court held that only ‘tems in plain

view could be inventoried, other courts have held that where

the owner cannot be located the inventory may include the

trunk of an automobile. People v. Trusty, ____Colo. __., S516P.

BEST GOPY AVAILABLE

2d 123 (1973). See also State v Gowans, 18 Ariz. App. 110,

500 P. 2d 641 (1972); Fruit v. State, Ok. Cr. App.___., 16

Crim. L.R. 2197 (1974). South Dakota differs from Nebraska

on the question of whether a glove compartment is a proper

part of an inventory. State v. Wallen, 185 Nebr. 44, 173 N.W.

2d 372 (1970).

While some courts have held that baggage may be opened

and inventoried, State v. Wallen, 185 Nebr. 44, 173 N.W. 2d

372 (1970); United States v. Davis, 496 F. 2d 1026 (Sth Circuit

1974), others hold that baggage should not be opened. State v.

Nemrod, 85 N.M. 111, 509 P. 2d 885 (1973); State v. Gwinn,

—— Del. __., 301 A. 2d 29 (1973). In Arizona, the trunk may

be opened but baggage within the trunk may not be. See Boulet

v. State, 17 Ariz. App. 64, 496 P. 2d 504 (1972), and State v.

Gowans, 18 Ariz. App. 110, 500 P. 2d 641 (1972).

An Ohio court has held that the driver of the vehicle should

be asked whether he wishes to have the vehicle inventoried or

merely stored. State v. Bradshaw, 41 Ohio App. 2d 48, 322

N.E. 2d 311 (1974). A New Mexico court has held that an auto

rental agency’s Ttequest for impoundment, where the driver’s

possession was unauthorized, was irrelevent to the question of

the inventory. State v. Nemrod, N.M.__., 509 P. 2d 885

(1973).

The South Dakota court found that an inventory constitutes

a search, but a Michigan court has held otherwise. People v.

Willis, 46 Mich. App. 436, 308 N.W. 2d 204 (1973).

While numerous courts have alluded to the motive of

protecting the police from false claims, State v. Wallen, 185

Nebr. 44, 173 N.W. 2d 372 (1970), Heffley v. State, 83 Nev.

100, 423 P. 2d 666 (1967), the South Dakota court found that

removing objects in plain view would insulate the police from

liability under South Dakota law. See also Mozetti v. Superior

Court of Sacramento County, 4 Cal. 3d 699 94 Cal. Rptr. 412,

484 P. 2d 84(1971).

Although the incidence of inventory cases has mushroomed,

no uniform approach to them has developed. The intervention

9

of this Court is essential in order to prevent the continuation

and increase in disparity between state courts.

C. THERE IS A CONFLICT AMONG THE FEDERAL

COURTS OF APPEAL ON THE QUESTION PRESENTED.

In addition to the disparity between the state courts, there

are conflicts between the states and the federal circuits in which

they are located and among the federal circuit courts themselves

on the question presented.

Inventories have been upheld in three circuits. United States

v. Pennington, 441 F. 2d 249 (Sth Cir. 1971), cert. denied 404

U.S. 854 (1971); United States v. Fuller, 433 F. 2d §33 (D.C.

Cir. 1970); United States v. Sifuentes, 504 F. 2d 845 (4th Cir,

1974). Four other circuits have held inventories invalid. United

States v. Lawson, 487 F. 2d 468 (8th Cir. 1973); Carey v.

Gammons, 475 F. 2d 1397 (3rd Cir. 1973), judgn ent vacated,

414 USS. 897 (1973): Cady v. Dombrowski, 471 F 2d 280 (7th

Cir. 1972), reversed, 413 U.S. 433 (1973); Uni ed Sfates v.

Capra, 501 F. 2d 267 (2nd Cir. 1974).

In addition to this split, there are two circuits which have

come down on both sides of the question, the Ninth Circuit and

the Tenth Circuit. Heffley v. Hocker, 420 F. 2d 881 (9th Cir.

1969), judgment vacated, 399 U.S. 521 (1970); United States v.

Mitchell, 458 F. 2d 960 (9th Cir. 1972); United States v. Roe,

495 F. 2d 600 (10th Cir. 1974); United States v. McDevitt, 508

F. 2d 8 (10th Cir. 1974).

The number of report

federal courts involving inventories indicates that the

recurring problem in the administration of criminal justice. The

disparity in decisions could be reduced considerably by a

decision of this Court in the present case.

ed decisions in both the state and

issue is a

10

VII. CONCLUSION

For the reasons stated, it is respectfully submitted that

certiorari should be granted, and that the judgment of the

Supreme Court of South Dakota be reversed.

Respectfully submitted,

WILLIAM J. JANKLOW

Attorney General of South Dakota

EARL R. METTLER

Assistant Attorney General

Attorneys for Petitioner.

APPENDIX A

Judgment of the South Dakota Supreme Court

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

see

STATE OF SOUTH DAKOTA,

Respondent,

vs.

DONALD OPPERMAN,

Petitioner.

eee

APPEAL FROM DISTRICT COUNTY COURT

SECOND JUDICIAL DISTRICT, CLAY

COUNTY, SOUTH DAKOTA

HON. DONALD ERICKSON, JUDGE

OPINION FILED April 15, 1975

EARL METTLER and

TOM LEHNERT

Assistant Attorneys General

Pierre, South Dakota

12

ON THE BRIEF:

KERMIT A. SANDE, Attorney General

Pierre , South Dakota

ARTHUR L. RUSCH, States Atty.

Vermillion, South Dakota Attomeys for respondent.

ROBERT C. ULRICH

Vermillion, South Dakota Attorney for petitioner.

WINANS, Justice.

Defendant-appellant was convicted of possession of less than

one ounce of marijuana in violation of SDCL (1967) 39-17-95.

He contends, as he did in the court below, that it was error for

the trial judge to allow the product of the search and all fruits

flowing from it to be introduced into evidence because the

search was in violation of the Fourth Amendment to the United

States Constitution. -

The facts surrounding this search are as follows: During the

early morning hours of December 10, 1973, Vermillion police

officer, William Herrick, issued a parking ticket to appellant’s

automobile pursuant to a Vermillion ordinance which prohibiis

parking in the downtown area from 2:00 A.M. to 6:00 A.M. At

approximately 10:00 A.M. on the morning of December 10th a

metermaid for the City of Vermillion issued another ticket to

appellant’s vehicle for an expired parking meter violation. She

returned to the station and informed Police Officer Frank that

the vehicle had been issued a second ticket.

Officer Frank went to the car and inspected the tickets. He

then called for the assistance of a tow truck operator who

towed the vehicle to the city impound lot. At this time the

vehicle was locked and all windows were closed. The police

officer ordered the tow truck operator to break into the vehicle,

which he succeeded in doing by unlocking the door with a tool.

Frank then seized a number of articles, among which was a

watch on the dashboard. These articles were in plain view and

are not in issue for the purposes of this appeal.

==

13

After securing all articles of value within the area of his

vision, the officer continued his exploration of the vehicle by

entering the closed console where he found and seized a plastic

bag containing a leafy substance which was later determined to

be marijuana.

Prior to this seizure Frank had no probable cause to believe

that the automobile contained contraband, nor was appellant

under arrest. His car was towed for violating a mere parking

ordinance and was searched pursuant to a Vermillion Police

Department procedure.

I.

As a threshold question we must decide if a detailed

inventory of a private vehicle is a search which falls within the

Fourth Amendment prohibition against unreasonable searches

and seizures.

The Supreme Court of the United States has not decided

whether an inventory procedure is a search. In Cady v.

Dombrowski, 1973, 413 U.S. 433, 93 S. Ct. 2523,2528, 37 L.

‘Ed. 2d 706,715 (Fn.), Justice Rehnquist, noting the state’s

argument that an inventory is not a search because it is not

conducted to uncover evidence of a crime, said, “We need not

decide this issue’. This court, however, must. Logic and

well-reasoned decisions from other jurisdictions lead us to

conclude that an intrusion into a citizen’s vehicle, as in the

instant case, is a search.

The California Supreme Court, in a factual situation close to

the instant case, decided that an inventory procedure conducted

pursuant to a police regulation is a search cognizable under the

Fourth Amendment. See Mozetti v. Superior Court of

Sacramento County, 1971, 94 Cal. Rptr. 412, 484 P. 2d 84.

In that case defendant was removed to a hospital after

sustaining injuries in a two-car collision. Her vehicle was

blocking the roadway and arrangements were made to have it

towed to a storage facility pursuant to a California statute. Prior

14

to towing, in accordance with standard police department

procedure, an officer of the Sacramento Police Department

prepared an inventory of the contents of defendant’s

automobile. He opened an unlocked suitcase in the rear seat of

the vehicle, apparently to determine if it contained anything of

value. A plastic bag containing marijuana was found.

Defendant’s motion to suppress the evidence was rejected by

the trial court. But on appeal the Supreme Court held that error

was committed when the evidence found in the closed suitcase

was not suppressed.

The prosecution in Mozetti, as in the instant case, sought to

validate the inventory of defendant’s vehicle by distinguishing

between an inventory and a search. The state contended that an

inventory is conducted not to uncover evidence of criminal

activity, but to prevent the theft of articles left in the car. Thus

it was argued the procedure is not a Fourth Amendment search.

Rejecting this theory the Supreme Court of California said,

and we concur, that:

“It seems undeniable that a routine police inventory of

the contents of an automobile involves a substantial

invasion into the privacy of the vehicle owner. Regardless

of professed benevolent purposes and euphemistic

explication, an inventory search involves a thorough

exploration by the police into the private property of an

individual. In that process suitcases, briefcases, sealed

packages, purses — anything left open or closed within the

vehicle — is subjected without limitation to the prying of

authorities. Merely because the police are not searching

with the express purpose of finding evidence of crime,

they are not exempt from the requirements of

reasonableness set down in the Fourth Amendment.

Constitutional rights may not be evaded through the

route of finely honed but nonsubstantive distinctions.”

(emphasis supplied) 484 P. 2d at 88.

15

The Fourth Amendment's prohibition against unreasonable

search and seizure serves as a protective border between

necessary investigations by governmental agents and the

constitutional grant of privacy to our citizens. Rejecting a

ae interpretation of this amendment the Supreme Court

“The basic purpose of this Amendment, as recognized

in countless decisions of this Court, is to safeguard the

Privacy and security of individuals against arbitrary

invasions by governmental officials.”” Camara v. Municipal

Court, 1967, 387 U.S. 523,528, 87 S. Ct. 1727. 1730. 18

L. Ed. 24 930,935. as

Contrary to this expression of the purpose of the Fourth

Amendment by the United States Supreme Court, the State

contends that if this Court approves inventory searches, we will

not thereby give police an unbridled power to seatch for

evidence without justification because a valid inventory does

not have as its motive a desire to find evidence. We cannot

accept this contention. As previously noted, the Fourth

Amendment protects our citizens’ right to privacy and it is mere

semantics to say that a detailed search of one’s car is not a

substantial invasion of privacy, even if it is made for the

professedly benevolent purpose of theft prevention. This Court

does not subscribe to a limited and semantical reading of the

concept of “search” as used in the Fourth Amendment

we believe that that Amendment: org a

“* * * governs all intrusions by agents of the public

upon personal security, and * *[makes] the scope of the

particular intrusion, in light of all the exigencies of the

case, a central element in the analysis of reasonableness.

* * This seems preferable to an approach which attributes

too much significance to an overly technical definition of

16

‘search,’ ”’. (citations omitted) Terry v. Ohio, 1968, 392

U.S. 1,18 Fn. 15, 88 S. Ct. 1868,1878, 2 L. Ed. 2d

889 904.

The Eighth Circuit Court of Appeals has also refused to

attribute too much significance to an overly technical definition

of “search”. In United States v. Lawson, 1973, 8 Cir., 487 F. 2d

468 ,472, the Court said it would not be bound by a

“* ® * highly technical construction of the meaning of

search, unwarranted in our view of the Fourth

Amendment. To consider an inventory procedure not to

be a ‘search’ does violence to the concept of the Fourth

Amendment as a protection of the privacy of the

citizenry against unwarranted invasion by government

officials.”

—_

In Lawson the Court upheld the lower court’s holding

granting defendant’s motion to suppress evidence in the form of

a revolver seized from the trunk of his impounded car by local

police officers in Aberdeen, South Dakota. The Court held that

because the only justification for the search of the automobile

was its mere possession by the police, the gun found in the

locked trunk was improperly seized and was inadmissible as

evidence.

It should be noted that in Lawson the defendant was in

police custody, on a charge of passing insufficient funds checks

when his car was impounded and searched. The warrantless

search there could conceivably have been justified as being

incident to a lawful arrest. See Chimel v. California, 1969, 395

U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685. No such

justification is present in the instant case where the only

violation by defendant was that of a parking ordinance.

Were this Court to hold that an inventory is not a “search”

within the meaning of the Fourth Amendment we would be

placing government agents in a better position when they have

17

‘mo reason to search, because then a general exploratory

“inventory” will be upheld; but if required to secure a warrant,

they would have to describe with particularity the place to be

searched and the articles to be seized. In Camara, supra, the

Supreme Court gave expression to the inconsistency which

would result from removing inventory searches from the larger

category of “searches” which fall within the purview of the

Fourth Amendment.

“It is surely anomalous to say that the individual and

his private property are fully protected by the Fourth

Amendment only when the individual is suspected of

criminal behavior.” 387 U.S. at 530, 87 S. Ct. at 1732, 18

L. Ed. 2d at 936.

Because a holding by us that inventories are not searches

would lead to the encouragement of fishing expenditions and a

whitling away of Fourth Amendment protection we decline to

so hold. Mindful that “The word ‘automobile’ is not a talisman

in whose presence the Fourth Amendment fades away and

disappears”’, Coolidge v. New Hampshire, 1971, 403 U.S.

443,462, 91 S. Ct. 2022,2035, 29 L. Ed. 2d 564,580, and

adopting the principles expressed in Terry, Camara, Mozetti and

Lawson, we hold that the inventory procedure used by the

Vermillion police is a search involving a substantial invasion of

privacy which must conform to the reasonableness requirement

of the Fourth Amendment.

I]

Because the police procedure in the present case in a search

it must comply with the Fourth Amendment, which provides

that:

“The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches

18

and seizures, shall not be violated; and no warrants shall

issue but upon probably cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

Only unreasonable searches are condemned by this

Amendment. This Court must, therefore, determine whether

the instant search was unreasonable, and if so found, the

evidence in. uestion must be suppressed.

At the outset we observe that beside a few well drawn

exceptions, searches of private property without consent are

unreasonable when government agents are not acting pursuant

to a valid search warrant. See, e.g., Stoner v. State of California,

1964, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856, and Katz

vy. United States, 1967, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.

2d 576. As the Court explained in Johnson v. United States,

1948, 333 US. 10, 68 S. Ct. 367, 92 L. Ed. 436:

“The right of officers to thrust themselves into a home

is also a grave concern, not only to the individual but to a

society which chooses to dwell in reasonable security and

freedom from surveilance. When the right of privacy must

reasonably yield to the right of search is, as a rule, to be

decided by a judicial officer, not by a policeman or

government enforcement agent.”

The automobile, however, occupies a somewhat different

position than does immovable property in the constitutional

scheme of things.

“(A]utomobiles and other conveyances may be

searched without a warrant in circumstances that would

not justify the search without a warrant of a house or an

office, provided that there is probable cause to believe

that the car contains articles that the officers are entitled

19

to seize.” Chambers v. Maroney, 1970, 399 U.S. 42, 90A

S. Ct. 1975,1979, 26 L. Ed. 2d 419,426.

This distinction arises from both the highly mobile character of

the automobile and the fact that, “extensive, and often

noncriminal contact with automobiles will bring local officers in

‘plain view’ of evidence, fruits, or instrumentalities of a crime,

or contraband.” Cady v. Dombrowski, 1973, 413 U.S. 433,442,

93 S. Ct. °2523,2528, 37 L. Ed. 2d 706,715. Despite this

distinction it must, of course, still be shown that the search was

reasonable. See Preston v. United States, 1964, 376 U.S. 364,

84 S. Ct. 881, 11 L. Ed. 2d 777, and State v. McCreary 1966,

82 S.D. 111, 142 N.W. 2d 240.

It is difficult to draw a single, consistent thread through

decisions which have passed on the reasonableness of vehicle

searches. Justice Rehnquist acknowledged this in his oft-quoted

dictum that:

“(T]he decisions of this Court dealing with the

constitutionality of warrantless searches, especially when

those searches are of vehicles, suggest that this branch of

the law is something less than a seamless web.” Cady,

supra, 413 U.S. at 439, 93 S. Ct. at 2527, 37 L. Ed. 2d at

714.

Both petitioner and respondent have directed us to a trilogy

of United States Supreme Court decisions which offer guidance

in deciding whether the search in the instant case was

reasonable.

In Cooper v. California, 1967, 386 U.S. 58, 87 S.C. 788,17

L. Ed. 2d 730, defendant was arrested for a narcotics violation

and his vehicle was impounded pursuant to a California statute

which authorized the seizure of any vehicle used to unlawfully

transport narcotics. The Court stated that “whether a search

and seizure is unreasonable within the meaning of the Fourth

20

Amendment depends upon the facts and circumstances of each

case”. 386 U.S. at 59, 87 S. Ct. at 790, 17 L. Ed. 2d at 732.

Looking to the facts of that case the Court in a 5-4 decision

held the warrantless search to be reasonable because there was

9 intimate nexus between the reason for the arrest and the

impoundment and subsequent search of the automobile. As

pointed out by the Court:

“(T]he officers seized petitioner's car because they

were required to do so by state law. They seized it

because ‘of the crime for which they arrested petitioner.

They seized it to impound it and they had to keep it until

forfeiture proceedings were concluded. Their subsequent

search of the car — whether the State had ‘legal title’ to it

or not — was closely related to the reason petitioner was

arrested, the reason his car hac! be>n impounded, and the

reason it was being retained.” 386 U.S. at 61, 87 S. Ct. at

791,17 L. Ed. 2d a’. 732.

Cooper is clearly inapposite to the ir stant case because the

vehicle here was not impounded for a forfeiture action. Nor was

the reason for its impoundment (a parking violation) in any way

related to the petitioner’s subsequent arrest.

In arguing for the reasonableness of the instant search, the

State places great weight on Cady v. Dombrowski, supra, where

the Supreme Court held that the warrantless search of an

automobile, which the officers reasonably believed to contain a

gun, but which disclosed several bloody articles, was not an

unreasonable search. Reliance on Cady ignores the factual

considerations present there, but absent in the instant case.

First, the automobile in Cady constituted a nuisance on the

highway because it was inoperative due to the accident. The

driver was unable to have the car towed because he was

intoxicated and later comatose. Second, the police conducted

the search for the revolver to prevent its falling into the wrong

hands. The accident victim was a Chicago policemen, who the

21

‘police of Kewaskum, Wisconsin, believed was required

regulation to be armed at all times. When the indies was -

found on his person they had good cause to suspect it was in

the vehicle. Therefore, this search, motivated by “concern for

the safety of the general public’, was held to be

constitutionally reasonable.

As stated, vast factual distinctions separate the case at bar

from Cady. Here the automobile was not located where it was a

public nuisance. It was instead parked in a designated parking

space. The record offers no reasons why petitioner could not

arrange for the safekeeping of hs vehicle at the time or after it

was towed from where it had been parked. And most

nen ge was no reason for the Vermillion police to

car contained i i i

panther ahr anything which posed a potential

The final, and perhaps for our purposes most relevant

Supreme Court ruling on inventory searches is Harris v. United

States, 1968, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067

In Harris the defendant’s automobile had been seen leaving the

site of a robbery. The car was traced and the defendant was

arrested as he was entering his automobile. The police decided

to impound the defendant’s automobile. At this time the

windows of the car were open and the door was unlocked. After

the automobile had been towed to the impound area, and

pursuant to a police regulation, an inventory of the articles in

the vehicle was taken. The police officer placed a property tag

on the steering wheel, rolled up the windows and locked all the

doors. While the officer was rolling up the windows and locking

the doors, he discovered a registration card, which lay face up

on the metal stripping over which the door closed. The Court

held that the registration card was not seized in violation of the

Fourth Amendment because the registration card was in “plain

view.

22

“Once the door had lawfully been opened, the

registration card, with the name of the robbery victim on

it, was plainly visible. It bas long been settled that objects

falling in the plain view of an officer who has a right to be

in the position to have that view are subject to seizure and

may be introduced into evidence.” 390 U.S. at 236, 88 S.

Ct. at 993, 19 L. Ed. 2d at 1069.

The holding in Harris is predicated on, and limited to, the

“plain view” exception to tie warrant requirement. The record

of the instant case clearly reflects that the contraband seized

was not the product of a plain view discovery.

Because the considerations which were pivotal in Cooper,

Harris and Cady are lacking in the case at bar we must “depend

upon an analysis of the ‘reasonableness’ of the search here in

question.” Lawson, supra, at 471. P

Under a standard of reasonableness warrantless searches of

vehicles are to be approved only in a few carefully defined

instances, among which are: Where there exists both probable

cause and mobility at the time of the search, Carroll v. United

States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543; when

a search is conducted under a reasonable belief that the vehicle

contains an object which might endanger the general public,

Cady v. Dombrowski, supra; when a search is incident to a

lawful arrest, Chimel v. California, supra; and when an

automobile is lawfully held as evidence of a crime preparatory

to the institution of forfeiture proceedings as in Cooper v.

California, supra.

There are no circumstances present in the instant case to

justify the warrantless search of the contents of the closed

console. The search was not incident to a lawful arrest; not

based on probable cause to believe the vehicle contained

contraband: not justified by the nature of the police custody

involved; nor were exigent circumstances present.

23

Addressing the content that police have a right to conduct

inventory searches to protect themselves from groundless claims

the Court in United States v. Lawson, supra, said:

“For the police practice considered here to be found

reasonable under the Fourth Amendment, absent a

warrant or falling within a recognized exception to the

warrant requirement, there must be a _ minimal

interference with the individual’s protected rights. A

police duty to safeguard the owner’s property does not

automatically give the police the right to search.”

(emphasis supplied) 487 F. 2d at 475.

And to the same effect the United States Supreme Court has

stated that:

“[L] awful custody of an automobile does not of itself

dispense with consitutional requirements of searches

thereafter made of it, * * the reason for and the nature of

the custody may constitutionally justify the search.”

Cooper v. California, supra, 386 U.S. at 61, 87 S. Ct. at

791, 17 L. Ed. 2d at 733.

Cognizant that mere custody of a vehicle is not sufficent to

cause a divestiture of Fourth Amendment protections we hold

that “minimal interference” with a citizen’s constitutional

rights means that police inventory searches must be restricted to

safeguarding those articles which are within plain view of the

Officer’s vision. This limitation upon the scope of an inventory

search of a vehicle has found implicit approval by this Court in

State v. Catlette, 1974, S.D., 221 N.W. 2d 25, where Justice

Doyle speaking for the Court interpreted the case of Lawson v.

United States, supra, as limiting a reasonable search to “removal

of objects within plain sight”. The opinion states that an

24

inventory search limited to removing objects in plain view, if

done without an investigative notive, is a reasonable search*. We

now explicitly approve this rule.

Applying this standard to the instant case would mean that

the officer had a right to enter the vehicle to remove those

objects in plain view, such as the watch on the dashboard, to a

place of safety. He had no right to conduct an exploratory

search of either the console, the trunk or a closed suitcase. Of

course, while lawfully retrieving articles from inside the vehicle

the officer need not blind himself to what is within his field of

vision because as aready noted:

“It has long been settled that objects falling in the

plain view of an officer who has a right to be in the

position to have that view are subject to seizure and may

be introduced in evidence.” Harris v. United States, supra,

390 U.S. at 236, 88 S. Ct. at 993, 19 L. Ed. 2d at 1069.

When in possession of an impounded car the police are acting

as gratuitous depositors. SDCL 43-39-11 provides that “[a]

gratuitous depository must use at least least care for the

* “The court’s discussion in United States v. Lawson, supra, implies to

us that in that case reasonableness ended with the removal of objects

within plain sight — objects which when spotted by a passing vandal

would provide the temptation for exploration into the vehicle and

damage to its contents. Just as the situation in Cady v. Dombrowski,

supra, demanded the locating of the revolver to protect the public, the

facts in Lawson did not justify a search of the trunk merely to protect

the police from potential liability.

In the instant case, we find that the scope of the intrusion here, 1!

done for noninvestigative reasons, was reasonably related to the

permissible purpose of preventing police liability. The record reveals

that the hatchet and tire iron could possibly have been seen from

outside the care. There were in a position so that the police in trying to

remove possible temptation from vandals would have found the hatchet

and tire iron in ‘plain view’. See Cady v. Dombrowski * * *, and Harris

v. United States,”. (citations omitted) 221 N.W. 2d 25 ai 29.

25

Preservation of the thing deposited.” Certainly removal of those

objects within plain view and closing of \vindows and locking of

doors satisfies the minimal standard of “at least slight care’’,

thus protecting the police from civil to t claims. This view is

shared by the California Supreme Court which said “In no case

is an inventory of items not within plain sight essential to

safeguard the contents or to fulfill a ‘slight’ duty of care.”

Mozetti, supra, at 90.

Because the only justifying circumstance presented to this

Court in support of the warrantless search of the closed console

was naked custody of the vehicle we must conclude that the

instant search was unreasonable.

The judgment appealed from is reversed.

DUNN, Chief Justice, and DOYLE and COLER, JJ., concur.

WOLLMAN, J., dissents.

WOLLMAN, Justice (dissenting).

Because the intrusion by the police into defendant’s

automobile, even if it is characterized as a sea-ch, was clearly

reasonable under the rationale of Cady v. Dombrowski, 1973,

413 U.S. 433, 93 S. Ct. 2523,2528, 37 L. Ed. 2d 706, I would

hold that the trial court did not err in denying defendant’s

motion to suppress the evidence.

Defendant’s automobile was first ticketed at 3 a.m., when an

officer observed it parked on a street a short distance from a

sign that informed the public that parking was prohibited from

2 a.m. to 6 a.m. Apparently the vehicle remained in place until

approximately 10 a.m. the same day, when another police

officer issued a ticket for overtime parking. In accordance with

standard police procedures, the vehicle was then towed to the

impoundment lot, where, again according to established routine

procedures, an officer made an inspection of the exterior

condition of the automobile. The glove compartment was

unlocked. There was no entry by the police into the locked

trunk compartment.

26

The officer who conducted the inspection and inventory

testified that all vehicles taken to the impoundment lot are

inventoried against a standard inventory sheet. This is done

because in past instances property has been stolen from locked

cars in the impoundment lot. The officer testified that he had

never seen defendant’s vehicle before, that he did not know

defendant, and that he had no reason to suspect that the

automobile might contain drugs.

There is nothing in the record to indicate that the police

acted illegally, unreasonably or improperly i towing

defendant’s automobile from where it was illegally parked to

the impoundment lot. The officers apparently treated

defendant’s automobile as they would have treated any other

automobile found in the same circumstances. The record reveals

that the Vermillion police department tows away vehicles for

violation of ordinances designating restricted parking zones. The

fair inference from the testimony of the officers is that vehicles

thus illegally parked in the dov’ntcwn area of Vermillion are

considered to present more of 2 pr ble:n to city officials than

those that are parked merely in violation of parking meter

restr ~tions. The following language from Cady v. Dombrowski,

supra, is applicable here:

“* * * The Thunderbird was not parked adjacent to

the dwelling place of the owner as in Coolidge v. New

Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d

564 (1971), nor simply momentarily unoccupied on a

street. Rather, like an obviously abandoned vehicle, it

represented a nuisance, and there is no suggestion in the

record that the officers’ action in exercising control over

it by having it towed away was unwarranted either in

terms of state law or sound police procedure.”

The case of United States v. Lawson, 8 Cir., 487 F. 2d 468,

is distinguishable. In that case, defendant was present at the

27

‘time his vehicle was seized by the police. There was nothing in

the record to indicate that it was necessary for the police to

impound the vehicle. (The Governme t expressly disavowed

any contention that the se: rch was incic ental to a lawful arrest.

487 F. 2d at 469). Entry was mace .nto the locked trunk

compartment of the vehicle. .

1 would not restrict the police to an inventory of only those °

items that are in plain view within the interior of an

automobile. Whether an inspection of the interior of a locked

glove compartment would be reasonable or unreasonable would

depend upon the circumstances under which such entry was

made. Cady v. Dombrowski, supra. What was said in United

States v. Gravitt, 5 Cir., 484 F. 2d 375, is applicable here:

“* * * But we are confident that here, as in other

contexts, reviewing courts will be fully capable of assuring

that the scope of the intrusions involved will be tailored

to the specific public interests which lie at the root of the

finding that the intrusions are reasonable.” (Citations

omitted) 484 F. 2d at 380.

It would affirm the judgment.

28

APPENDIX B

Oral ruling of South Dakota Circuit Court

February 21, 1974

ERICKSON, J.

Yes, gentlemen, quoting from the United States v. Lawson,

on page 477, I think the Court sets forth the test, “We think the

proper approach to the area is the access reasonableness of the

police conduct in light of all the circumstances in the case

without giving in the effect of the presence or absence of the

police regulation.”

The testimony of this particular case which in the fact of the

particular area was the impound lot where it was located at, and

it is highly insecure, in light of the fact the previous steps of the

property from the automobiles parked, th:re can be no

question that the police impounded this car under lawfui city

ordinance in the City of Vermillion.

It is the opinion of the Court that the basic test is whether or

not it was reasonable to search under the circumstances. I find

under this case, under the circumstances set forth in the

Preliminary Hearing, the search was reasunable, and your

motion is denied, Mr. Ulrich.