Amicus Brief — South Dakota v. Opperman

NO. 75-76

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DEC 13 1975

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IN THE eeemmnnanl

Supreme Court of the United States

October Term, 1975

SOUTH DAKOTA,

Petitioner,

vs.

DONALD OPPERMAN,

Respondent.

AMICUS CURIAE BRIEF

TONEY ANAYA

Attorney General of New Mexico

WARREN O. F. HARRIS

Deputy Attorney General

Supreme Court Building

Post Office Box 2246

Santa Fe, New Mexico 87503

December, 1975

VERGARA PRINTING CO. + SANTA FE, NEW MEXICO

TABLE OF CONTENTS

POINT I —

THE SOUTH DAKOTA SUPREME COURT

DID ERR IN HOLDING INADMISSIBLE

EVIDENCE DISCOVERED DURING AN

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TABLE OF AUTHORITIES

Cases

Bennett v. State, Okla. Cr., 507 P.2d 1252 (Ct. Cr. App.1973). 7

Cabbier v. Commonwealth, 212 Va. 520, 522,

SE PE, PUEUITED oi cccévccvendonceoese 5

Cady v. Dombrowski, 413 U.S. 433, 37 L.Ed.2d 706,

, PS cts, od cleeewhantes z, 4, 8

Capps v. State, 50S S.W.2d 727 (1974) .............405. 7

Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419,

ee cameecusneees 8

Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730,

ee a ons 50 60S owe vb. 00's 6600 4

Haerr v. United States, 240 F.2d 533 (Sth Cir. 1957) ...... 3

Harris v. United States, 390 U.S. 234, 19 L.Ed.2d 1067,

en ee ee aah o's wetnee 668 5,6

Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967)....... 3,4

In Re One 1965 Econoline, Etc., 109 Ariz. 433,

ee ee ET o's iva bd one’ » Ca Kees cater ses 8

Knight v. State, Fla., 212 So.2d 900 (Ct. App. 1968) ...... 8

Mackall v. State, 7 Md. App. 246, 255 A.2d 98

ees ek Dade hb ge o84e6.Oee 408 O8 8

Manzanec v. Flannery, 176 Tenn. 125, 138 S.W.2d 441 (1940) 3

Nichols v. Commonwealth, Ky., 408 S.W.2d 189

SG Doty a's bu 6064 v oes ee ens cae 3

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

272 N.E.2d 464 (Ct. App. 1971).............-.-- 2,5

Cases (Cont'd) Page

People v. Trusty, Colo., 516 P.2d 423 (1973) ............ 7

Preston v. United States, 376 U.S. 364, 11 L.Ed.2d

As Se Ot ree eee 8

Roush vy. State, Fla., 203 So.2d 632 (Ct. App. 1967)....... 8

State v. Gwinn, 301 A.2d 291 (Del. Supr. 1972).......... 7

State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968)... 8

State v. Olsen, 43 Wash.2d 726, 263 P.2d 824(1953)..... 5,8

State v. Opperman, 17 Cr. L. 2126, 228 N.W.2d 152

3) Bo eee. 2, 4, 5, 6, 7, 8

State v. Undorf, 210 Kan. 1, 499 P.2d 1105 (1972) ....... 8

State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct. App. 1974). .7,8

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

State v. Wooten, 18 N.C. 269, 196 S.E.2d 603 :

GR. Age. ISTE «+ ccnvcesstocencs Clune 3

State v. Woodall, 16 Ohio Misc. 226, 241 N.E. 755

Ce. Game. FR FOP . oc uccccveecdesseeneeunneenn 3

United States v. Clarke, 451 F.2d 584 (Sth Cir. 1971)...... 3

United States v. Gerlatz, 350 F. Supp. 180 (U.S.D.C.,

SE Gilete, SPFED. uc vccvcccccesseedlureeneeee 7

United States v. Gravitt, 484 F.2d 375 (Sth Cir. 1973) ..... 8

United States v. Pennington, 441 F.2d 241, cert. den.,

404 U.S. 854, 30 L.Ed.2d 94, 92 S.Ct. 97 (5971) ..... 7

United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d

427, 94 BR. GBF CIP Tae 0 0508s resend 7

Constitutions

United States Constitution, Fourth Amendment..... 2, 3, 4, 8

Texts

Annat., 44 A.L.R. 36 SST CSTD . oc cadise teense 5

44 LW. BEST CIDGTOD.« «oc cone s0stecssnsenneneee 2

Ronald W. Szwajowski, University of Illinois Law Forum

CEDGRD . vc cccceccesvetsesésencsus ee 6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO. 75-76

SOUTH DAKOTA,

Petitioner,

vs.

DONALD OPPERMAN,

Respondent.

AMICUS CURIAE BRIEF

POINT I

THE SOUTH DAKOTA SUPREME COURT

DID ERR IN HOLDING INADMISSIBLE

EVIDENCE DISCOVERED DURING AN

INVENTORY SEARCH.

Following the impoundment of the automobile owned by

Donald Opperman and pursuant to a standard procedure of

the Vermillion, South Dakota Police Department, the contents

of the vehicle were inventoried by a police officer. The officer's

inventory extended into the closed console compartment where

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he found marijuana. Opperman was convicted of possession of

less than one ounce of marijuana. Defendant contended on

appeal, as he did at trial, that the marijuana should have been

suppressed because it was discovered during a search that

violated the Fourth Amendment to the United States Consti-

tution. The Supreme Court of South Dakota determined the

inventory procedure to be an unreasonable search in violation

of the Fourth Amendment and reversed the conviction of

defendant-appellant Opperman. See State v. Opperman, 17 Cr.

L. 2126, 228 N.W.2d 152 (S.D. 1975). The United States

Supreme Court granted review to determine if the South Da-

kota Supreme Court erred in holding inadmissible the evidence

found in the console of Opperman’s vehicle. 44 L.W. 3257

(1975).

As a threshold issue the Supreme Court of South Dakota

determined that an inventory is a search. The United States

Supreme Court has expressly declined defining an inventory

procedure as a search. Cady v. Dombrowski, 413 U.S. 433, 37

L.Ed.2d 706, 93 S.Ct. 2523 (1973). People v. Sullivan, 29 N.Y.

2d 69, 323, N.Y.S.2d 945, 272 N.E.2d 464 (Ct. App. 1971), a

case square with Opperman, held that inventories are not

searches. The defendant’s car in Sullivan was impounded for a

parking violation. A New York City Police Department regula-

tion required that valuable property in an impounded automo-

bile be recorded. The inventory of the contents of the vehicle

revealed a loaded pistol for possession of which defendant was

convicted. Contrary to the conclusion of the Opperman court,

Judge Bergan, for the majority, opined that, “A ‘search’ is an

intrusion under color of authority on an individual’s ‘vehicle’,

‘for the purpose of seizing things (Tentative Draft No. 3, 1970,

Art. 1, Sec. SS 1.01, subd. [!]). This is just what the inventory

examination in the present case is not.” In accord is State v.

Wallen, 185 Neb. 44, 173 N.W.2d 372 (1970), in which the

Nebraska Supreme Court refused to hold that an inventory is a

search. The doctrine explicated in Su/livan, that certain pro-

cedures during which items are secured are not searches because

their purpose is not to discover contraband or evidence, finds

3

federal foundation in Haerr v. United States, 240 F.2d 533 (Sth

Cir. 1957) and United States v. Clarke, 451 F.2d 584 (Sth Cir.

1971). Circuit Judge Cameron defined a search:

“A search implies an examination of one’s premises or

person with a view to the discovery of contraband or

evidence of guilt to be used in prosecution of a criminal

action.” Haerr v. United States, 240 F.2d at 535.

Several jurisdictions concur with the Haerr definition of a

search; State v. Wooten, 18 N.C. 269, 196 S.E.2d 603 (Ct. App.

1973); Nichols v. Commonwealth, Ky., 408 S.W.2d 189 (Ct.

App. 1966); Manzanec v. Flannery, 176 Tenn. 125, 138 S.W.2d

441 (1940); State v. Woodall, 16 Ohio Misc. 226, 241 N.E.

755 (Ct. Com. Pl. 1968).

The purpose of the inventory conducted by the Vermillion

police officer, indeed the purpose of all proper inventories, was

to catalog and safeguard property of the vehicle owner. Contra-

band, “fruits” and evidence of crime were not sought to be

discovered. If contraband and criminal evidence are the objects

of the procedure it becomes a search within the purview and

proscriptions of the Fourth Amendment.

By basing its finding that inventories are searches on the

premise that holding otherwise “‘would lead to the encourage-

ment of fishing expeditions, and a whittling away of Fourth

Amendment protections” the South Dakota Justices failed to

recognize that courts which have validated inventory procedure

do not grant free reign to officers in the conduct of the pro-

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

aptly gives the general rule:

“The police officer, when there is just cause, has a duty

not only to impound a car from the public highway for

its own protection, but also to inventory the contents

so that they may be safeguarded for the owner. .. . Jf,

however, the policing conduct indicates that the intention

is exploratory rather than inventory the fruits of that

search are forbidden. . . . Unfortunately, distinguishing

inventory from exploration may prove to be ambitious

4

and unprecise. We can only say that each case must be

determined upon its own facts and circumstances. Heffley

v. State, 83 Nev. at 104. [Emphasis added. ]

Ample protection against “fishing expeditions” is provided by

stringent application of the scrutinization suggested in Heffley.

It appears to be an overreaction to proscribe inventory proce-

dure altogether when a case-by-case examination of the conduct

of officers using the inventory procedure can provide proper

protection against encroachment of Fourth Amendment rights.

The South Dakota Supreme Court sought to distinguish

recent United States Supreme Court decisions, the import of

which is that inventory procedures are valid. In Cooper v.

California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788 (1967),

the petitioner's automobile was impounded and held for for-

feiture proceedings. A week after the impoundment and four

months before the forfeiture officers searched the vehicle and

found evidence in the glove compartment subsequently used to

help convict petitioner. The court held the warrantless search

reasonable. The Opperman court sought to distinguish Cooper

because “the vehicle here was not impounded for forfeiture

action.” By placing such emphasis on the reason for the car’s

impoundment the court skirts the important principle of

Cooper, which is that a vehicle lawfully in the custody of

police officials may be examined:

“It would be unreasonable to hold that the police, having

to retain the car in their custody for such a length of

time, had no right, even for their own protection, to

search it. Cooper v. California, 386 U.S. at 62. [Emphasis

supplied. ]

The Supreme Court held in Cady v. Dombrowski, 413 U.S.

433, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973), that the warrant-

less intrusion by an officer into the trunk of the automobile of

respondent Dombrowski wes proper, emphasizing, first, that

“the police had to exercise a form of custody or control” over

respondent’s vehicle and, second, that the procedure of entering

the automobile’s trunk was a standard measure to protect the

5

pblic from the possibility of harm. Again, the Opperman court,

for purposes of distinguishing Cady, focused on the reason for

the police assuming custody of the vehicle arguing that the car

in Cady was a “nuisance” while the vehicle illegally parked in

Opperman was not. Illegally parked cars do constitute an

interference with public and private rights. People v. Sullivan,

29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (Ct. App.

1971). However, the reason for the impoundment of an auto-

mobile is not the critical issue, far more important is whether

custody is lawfully gained. The two essentials of an inventory

are that it is not a subterfuge for a warrantless search and that

the officials have lawful custody of the vehicle. Annot., 48

A.L.R.3d 537 (1973). Cady stressed that once lawful custody

is assumed officers may examine the inside of the vehicle for

the protection of the public. In Cady the police entered the

vehicle of, Dombrowski specifically to locate a weapon. The

court approved the procedure because locating the weapon

was for the public’s protection. Protection of the public is the

basis of inventory searches:

“It has always been the public policy of the Common-

wealth to preserve and protect the individual rights of

citizens. Public policy also dictates that a citizen’s rights

and his property shall l’kewise be preserved and protected.”

Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d

781, 782 (1971).

Public safety is promoted by inventories, e.g., State v. Olsen,

43 Wash.2d 726, 263 P.2d 824 (1953), wherein a loaded pistol

was found pursuant to an inventory.

The Opperman court distinguished the facts of Harris v.

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

(1968), by asserting that the evidence seized in Harris was the

result of a “plain view’’ discovery, while the marijuana found in

Opperman was not in plain sight. Harris is, however, supportive

of inventory procedures because it posits that police may

utilize measures to protect property in their custody. If, pur-

suant to these protective measures, evidence or contraband is

discovered in plain view it may be admitted. The propriety of

6

protective Measures ts precisely the issue presented in Opperman.

The officers. to protect the property of Opperman, inventoried

his vehicle and while doing so discovered marijuana. The pro-

tective steps followed in the instant inventory are certainly

more ne essary than those in Harris; the officer in Harris was

merely securing the car against rain when evidence was dis-

covered, the officer in Opperman was attempting to prevent the

theft of items from the vehicle and in doing so found the

marijuana.

The South Dakota Supreme Court did not discharge police

officers from their duty to protect property inside an im-

pounded vehicle, but limited the seizure of items to those

plain sight:

“We hold that ‘minimal interference’ with a citizen’s con-

Stitutional rights means that police inventory searches

must be restricted to safeguarding those articles which are

within plain view of the officer’s vision.” State v. Opper-

man, 228 N.W.2d at 158.

If it is necessary and proper that law enforcement officials

safeguard items in “plain view” it is reasonable to extend the

inventory to items inside the automobile not in plain sight.

Ronald W. Szwajowski in the University of Illinois Law Forum

(1968) states the reason why an inventory should extend to

areas not in plain view:

“If the purpose of the inventory is to record the valuables

and other personal property in the car, it would seem

unrealistic to limit the search to a superficial inspection

of the vehicle. In view of the fact that a person who does

carry valuables in his car will most properly place them in

a safe and inconspicuous place as possible, the conscien-

tious investigator will conduct as thorough a search as

circumstances permit.”’ R. Szwajowski, University of IlIli-

nois Law Forum at 407.

Courts have recognized that the only realistic method of

protecting valuables inside impounded vehicles is to allow

inventories to extend into hidden or closed areas of the

7

automobile in lawful police custody. United States v. Gerlatz,

350 F. Supp. 180(U.S.D.C., E.D. Mich. 1972); People v. Trusty,

Colo., 516 P.2d 423 (1973); Capps v. State, 505 $.W.2d 727

(1974): State v. Gwinn, 301 A.2d 291 (Del. Supr. 1972). Oppo-

site to the view expressed by the Supreme Court of South

Dakota, glove compartments may properly be inventoried.

United States. vy. Pennington, 441 F.2d 241, cert. den., 404

U.S. 854, 30 L.Ed.2d 94, 92 S.Ct. 97 (1971); Bennett v. State,

Okla. Cr., 507 P.2d 1252 (Ct. Cr. App. 1973).

By limiting the scope of an inventory to items in “plain

view” the South Dakota Supreme Court makes it unclear

whether it is validating the seizure of items in open sight of an

officer standing outside the vehicle, or whether its opinion

embraces the “plain view” doctrine, that incriminating matter

inadvertently discovered by officials lawfully inside one’s dwell-

ing or automobile may be seized. If it is the purpose of the

Opperman court to assert the latter view, the evidence was

rightly admitted at trial since several courts have held that

items inside closed compartments of vehicles are subject to

“plain view” discovery during an inventory. People v. Trusty,

supra; Capps v. State, supra.

Whether in the opinion of the South Dakota court an inven-

tory is limited to the securing of property in plain view from

within or without the vehicle, it does make clear that it is

proper procedure to protect property inside the vehicle, there-

fore, it seems unrealistic to place an arbitrary barrier on the

scope of the police protection. The rationale of safeguarding all

property inside an automobile is underscored by decisions

which hold that an inventory may include the contents of

containers in a vehicle. A decision enunciating this principle is

a New Mexico case, State v. Vigil, 86 N.M. 388, 524 P.2d 1004

(Ct. App. 1974). Defendant Vigil’s car was taken into police

custody following his arrest. During the subsequent inventory

officers found a paper bag in the trunk. The bag was opened and

found to contain marijuana. The Court of Appeals predicated

its holding that the inventory of the bag was valid on United

States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467

8

(1973), which provided that a “full search,” not limited to

items in plain view, of a person lawfully in the custody of the

police is reasonable:

“We see no reason why search should be more circum-

scribed where an arrestee’s personal effects are involved

when they, also, are in lawful custody.” State v. Vigil,

86 N.M. at 391.

In accord that examination of tl e contents of containers inside

vehicles is consistent with the purpose of the inventory are:

Roush v. State, Fla., 203 So.2d 632 (Ct. App. 1967); Mackall v.

State, 7 Md. App. 246, 255 A.2d 98 (Ct. Sp. App. 1969);

State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968);

Knight v. State, Fla., 212 So.2d 900 (Ct. App. 1968); Jn Re

One 1965 Econoline, Etc., 109 Ariz. 433, 511 P.2d 168 (1973);

State v. Undorf, 210 Kan. 1, 499 P.2d 1105 (1972).

The Fourth Amendment proscribes only those vehicular

searches which are unreasonable. Preston v. United States, 376

U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881 (1964). Assuming,

arguendo, that an inventory procedure is a search, we conclude,

as did the Opperman court, with an analysis of the reasonable-

ness of the search conducted by the Vermillion Police Depart-

ment. Initially, it is important to realize that automobiles have

always been accorded less protection than persons and dwellings

under the Fourth Amendment. See Cady v. Dombrowski, 413

U.S. 433, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973); Chambers v.

Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970).

An inventory search like that conducted by the Vermillion

police officer is done to protect the property rights of citizens

and to protect the police against claims of property loss. United

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

benefit is that the public safety is safeguarded. See State v.

Olsen, 43 Wash.2d 726, 263 P.2d 824 (1953). The South

Dakota court’s contention that the removal of items in plain

view and the closing of windows and the locking of doors

satisfies the “slight duty of care” of the police may be an-

swered by the consideration that it is certainly reasonable to

believe that any competent thief will ransack likely hiding

9

areas of a car such as compartments and those areas not in plain

view. The minimal measures advanced by the South Dakota

court may satisfy the “slight duty of care” of South Dakota

police but they do not reasonably protect citizens’ property. It

is apparent that to fully safeguard the effects left inside vehicles

which are in lawful custody police officials must have the

authority to conduct a detailed inventory of the vehicle.

Therefore, the Court is urged to approve the inventory pro-

cedure proscribed by the South Dakota Supreme Court and

hold that the evidence discovered pursuant to the inventory was

lawfully admitted.

Respectfully submitted,

TONEY ANAYA

Attorney General

WARREN O. F. HARRIS

Deputy Attorney General

Supreme Court Building

Post Office Box 2246

Santa Fe, New Mexico 87503