Petition — Cabbler v. Superintendent, Virginia State Penitentiary
Supreme Court brief1976
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IN THE PeL ED
Supreme Court of the Aniten Stytes, . 197
OCTOBER TERM, 1975 | WICH*CL ROOK IR, CLERK |
a 75-1463
HERBERT W. CABBLER
Petitioner
SUPERINTENDENT, VIRGINIA
STATE PENITENTIARY.
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SAMUEL W. TUCKER
HILL, TUCKER & MARSH
214 EAST CLAY STREET
RICHMOND, VIRGINIA 23220
GERALD G. POINDEXTER
POINDEXTER & POINDEXTER
304 WEST CARY STREET
RICHMOND, VIRGINIA 23220
Counsels for Petitioner
April , 1976
— ——t
TABLE OF CONTENTS
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Reasons for Granting the Writ... 0.0.0... 00 ceeeeeeees
Summary of the Argument ........... 0.0006 eee
The Inventory Procedure is a Search
Subject to the Fourth Amendment
SUE Cle CIID, og vce cccdecnenccceseees
Exceptions to the Fourth Amendment Warrant
Requirement Are Not Dispositive of the Present Case ... .
The Conflict in the Federal Court System Makes
Resolution of This Question Both Necessary and
We ob.5 6.8 08 cane ee neek ees er be dst keeeeeneenes
The Conflict in the State Court Systems Makes
Resolution of This Question Imperative ..............
The Decision of the Court Below Has Grave
Implications for Fourth Amendment Rights ...........
Other Means of Achieving the Stated Grounds for
Inventory Searches, Viz., to Protect the Property
of the Person Arrested and to Protect the Officers
From False Claims, Which Are More Effective and
More Efficient Are Available
paeeoee eae eeCgceeeee ee ee ee 8 6 ¢
ALLA EAE lege Fpl igs Boyt SRS ky SR BE ae
Appendix
1. Order of Court of Appeals Denying Motion for
PRUE, cc cncccdcocevcessccocercceesceseene la
2. Decision of Court of Appeals ............00e eens 2a
3. Decision of District Court ..........cccescevcees 11a
4. Decision of Virginia Supreme Court. (6 en oe oe aoe 3la
TABLE OF CASES
Cases: Page
Barker v. Johnson,
oe | 8 oe By eee eee 14
Boyd v. United States,
ee ee ee ibeeesees 30
Cabbler v. Commonwealth,
212 Va. 520, 184 S.E. 2d 781 (1971),
cert. denied, 405 U.S. 1073 (1973) ............. 4
Cabbler v. Superintendent, Virginia State Penitentiary,
374 F. Supp. 690 (E.D. Va. 1974) .............. 4,25,27
Cady v. Dombrowski,
Ps CUO, bocce ncccnesrcessccceses 5
Camara v. Municipal Court,
ES a eee ee 6,24
Carroll v. United States,
Se i i ee eee eee KE 8
Chambers v. Maroney,
CE Ee ee 7,8,16
Chimel v. California,
PPE sv ccawnccvcseeceesenceesens 23,24
City of Danville v. Dawson,
528 S.W. 2d 687 (Ky. 1975)... eee eee eee 22
City of St. Paul v. Myles,
298 Minn. 298, 218 N.W. 2d 697 (1974).......... 22
Cooper v. California,
I aS De 6's aa eb eeceeeeneeeee 9,10,12
Cotton v. United States
SF F. 26 SEO WW Cir. TGBT) ccc ceccccvccens 14,16
Griswold v. Connecticut,
Seas C6 bay eed eked ene eRe 30
Harris v. United States,
370 F. 2d 477 (D.C. Cir. 1967), aff’d,
i ECCT ETT TTT Tere 9
Harris v. United States,
eR TT TT eT Te 23
in re One 1 Econoline,
17 Ariz. App. 64, 495 P. 2d 504 (1972),
vacated, 109 Ariz. 433, 511 P.2d 168 (1973 ...... 28
Katz v. United States
ER 7
Kelahar v. United States,
Gos Oe UH Gt Gas FUE cccccccccceceveses 17,18
Kimbrough v. Beto,
412 F. 2d 981 (5th Cir. 1969) .................. 17
Mozetti v. Superior Court of California,
4 Cal. 3d 699, 484 P. 2d 84 (1971) .............. 6,21
People v. Sullivan,
29 N. Y. 2d 69, 323 N. Y.S. 2d 945 (1971)........ 5
State v. Catlette,
«ht ® } f ¢ | Br ee 22
State v. Opperman,
228 N.W. 2d 152 (S.D. 1975), cert granted,
[ 44 U.S.L.W. 3263 (U.S. Nov. 1, 1975).:.......... 722,21
State v. Walker,
185 Neb. 44, 173 N.W. 2d 327, cert, denied,
ae CAD, Dee CUED cc cccccvcesssbeeeee 5
Terry v. Ohio,
gS BE | Se rr 7
United States v. Boyd,
435. F. 26 (aS Te Gir. FETED ww cccccccceeccces 16,17
United States v. Chadwick,
393 F. Supp. 763 (D. Mass. 1975) ............... 25
United States ex rel. Clark v. Mu’ ican,
374 F. Supp. 989 (D.N.J. 1972) 6... eee ees 18
United States v. Lawson,
487 F. 2d 468 (8th Cir. 1973) .......... 0.00000 18,19,20,21,28
United States v. Lipscomb,
435 F. 2d 795 (5th Cir. 1970) .................. 16
United States v. Mitchell,
. 485 F. 2d 960 (Oth Cir. 1972) 11... eee eee 15,16
United States v. Pennington,
441 F. 2d 249 (5th Cir.), cert. denied,
GOA US. GES TIS U) .. wc ccccccccnsecceueenen 17,18
United States v. Rabinowitz,
Bae US. GE CURD ccccccccvcscestsseeeee 23
United States v. Sifuentes,
» 504 F. 2d 845 (4th Cir. 1974) .................. 14
Williams v. United States °
412 F. 2d 729 (5th Cir. 1969) 17
Statutes:
Be OG. B. VERO TT) ow ccc cc cces. peeeeesus 2
EE Rk ck caeecedeseneesces 2
Wire !!Gneous:
Annot., ‘inventory Search of an Impounded Vehicle,”’
Nn. ec eeeccces 22
Comment, “‘Chimel/ v. California, A Potential Roadblock
to Vehicle Searches,”’ 17 U.C.L.A.L.
Rev. 626 (1970)
Comment, ‘The Aftermath of Cooper v. California,
Warrartiess Automobile Search in Iilinois,”’
1968 U. Ill. Law Forum 401 (1968).............. 23,30
Miles and Wefing, ‘“The Automobile Search and the
Fourth Amendment: A Troubled Relationship,”
4 Seton Hall L.R. 105 (1972) ............ Ri tsa 18
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
NO.
HERBERT W. CABBLER,
Petitioner
v.
SUPERINTENDENT, VIRGINIA
STATE PENITENTIARY,
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
The petitioner, Herbert W. Cabbler, respectfully prays that a
writ of certiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Fourth Circuit entered in
this proceeding on December 8, 1975.
OPINIONS BELOW
The opinion of the Court of Appeals, not yet reported, appears
in the appendix hereto. (infra pp. 2a-10a). The opinion of the District
Court for the Eastern District of Virginia appears at 374 F. Supp. 690
(E.D. Va. 1974), and is likewise appended. (Infra, pp. 11a-30a). The
opinion of the Virginia Supreme Court is also appended hereto. (Infra.
pp. 31a-36a).
JURISDICTION
The judgment of the Court of Appeals for the Fourth Circuit
was entered in December 8, 1975. A rehearing was denied on January
13. 1976. This petition for certiorari was filed within 90 days of
that date. This Court's jurisdiction is invoked under 28 U.S.C. S
1254(1).
QUESTION PRESENTED
|. | Whether the warrantless seizure of evidence from peti-
tianer’s vehicle during the inventory search violated petitioner's
fourth amendment rights?
STATEMENT OF THE CASE
The record reveals that the petitioner, Herbert W. Cabbler,
a prisoner of the Commonwealth of Virginia, sought habeas
corpus relief under 28 U.S.C. S 2254 from his several convic-
tions of grand larceny and petit larceny in the state courts,
alleging that certain items were admitted into evidence in his
criminal trial which had been seized from his automobile by
Roanoke, Virginia police in violation of his fourth amendment
rights. Based on the record in the State proceedings, the United
States District Court found for the petitioner. 374 F. Suppl. 690
(E. D. Va. 1974) ard ordered his release. Upon an appeal by the
Commonwealth, the Court of Appeals for the Fourth Circuit re-
versed. (infra, pp. 2a-10a).
The circuit court rendered a detailed firiding of fact and, be-
cause of the specific nature of petitioner’s claim simply footnoted
the conflicting testimonial evidence as to what transpired attendant
to the search of Cabbler’s vehicle, the seizure of its contents and
his indictment on the theft charges which form the basis of this
petition. (infra. pp. 3a-4a). For the purposes of this petition, a
similarly abbreviated rendition of the facts taken from the trial
transcript, with references thereto, is tendered.
In the early morning hours of September 2, 1969, it was re-
ported to a Sergeant Reynolds of the Roanoke, Virginia police
department that petitioner and two others had fired a rifle into
x *
a city restaurant. The alleged witnesses to the shooting were in-
structed to obtain felony warrants and Reynolds broadcasted a look-
out for Cabbler. Shortly after the alert two other police officers
spotted Cabbler and a passenger driving throught the city. They
followed his vehicle to a local hospital where they observed Cabbler
park on hospital property in the emergency parking zone, get out
and enter the hospital emergency room; (T-38) it was later learned
by the police that Cal oler was seeking treatment for himself and
for his passenger, both of whom were suffering recently inflicted
gunshot wounds. Reynolds, who had instructed the two officers
to follow Cabbier, arrived, looked into the empty vehicle and ob-
served a pistol on the rear seat and some shell boxes in plain view
on the floorboards of the vehicle. Reynolds stationed one of the
other officers outside and he entered the hospital emergency room
where he found Cabbler who he arrested and charged with shooting
into an occupied building, handcuffed and removed from the hos-
pital. (T-40,41) Cabbler was escorted outside and placed in a police
car. It was raining and Cabbier asked the arresting officer, who had
his keys, to roll up the windows to his auto (T-42,151,153). The
pistol and shell boxes were removed by the officers and shown to
Cabbler, who denied any knowledge of them. One officer remained
with the auto while Cabbler was transported by Reynolds to the
police station. (T-48) Reynolds then returned to the hospital and
Cabbler’s auto was driven by him to the police station for-inventor-
ing and storage in the city garage under what was described as long
standing police department policy, despite petitioner's earlier repre-
sentations to the officers that he himself had already made arrange-
ments to have it picked up. (T 156,165) Although the police did
not suspect further criminal activity involving Cabbler or his auto
and no probable cause existed to search the vehicle, at the police
headquarters, without Cabbler’s consent, the car was thoroughly
searched and its contents were removed and inventoried before being
placed in the police property room. (T 69, 199, 206). No warrant
was obtained for the search of the auto or for the removal of items
found therein. A detailed list of all items found in the car which
were being held for sai-keeping was drawn up and turned over to
the detective bureau and the property itself later stored in the
police property room (T-52, 73 210). Cabbler was subsequently
indicted on several larceny counts after it was discovered that some
of the items found in the vehicle had been stolen.
Prior to trial in the state court, petitioner moved to suppress
the evidence seized as a result of the search of the trunk of his car,
contending that the seizure of his car was improper, and that the
search of the car was illegal both in its inception and in its scope.
The motion was denied, and defendant was convicted. On appeal
to the Virginia Supreme Court, the conviction was affirmed, and
the seizure of the car and the search of the trunk were approved.
Cabbler v. Commonwealth, 212 Va. 520, 184 S.E. 2d 781 (1971).
Petitioner then sought a writ of certiorari to the United States
Supreme Court which was denied. 405 U.S. 1073 (1972).
Pursuant to 28 U.S.C. S 2254, petitioner next sought habeas
corpus relief. The district court, in a thorough and searching analysis
of the law of search and seizure, found for the petitioner. Cabb/er
v. Superintendent, Virginia State Penitentiary, 374 F. Supp. 690
(E.D. Va. 1974). The holding of that opinion, simply stated, was
that the inventory search procedure could not be justified by any
of the rationales advocated by the state, thus making it unreason-
able.
The Court of Appeals for the Fourth Circuit held that ‘‘an
inventory taken of a lawfully impounded vehicle to protect the
property from pilferage or the officers from false claims of loss
is reasonable, and hence not in violation of the Fourth Amend-
ment.” (Infra, p. Qa).
It is this holding that is at issue in this petition for a writ of
certiorari.
REASONS FOR GRANTING THE WRIT
SUMMARY OF ARG&MENT
The question of whether police may conduct a warrantless
inventory search of the trunk of a lawfully impounded vehicle,
and use as evidence in a later criminal prosecution any contra-
band discovered as a result of such inventory search, has not been
resolved by this Court. The Circuit Courts of Appeals are in direct
conflict on the question, and conflicting opinions have been ren-
dered by numerous state courts. This conflict among the circuits
and the states fosters confusion and uncertainty as to the propriety
of the inventory search procedure, and undermines citizen respect
for the law and for law enforcement personnel by virtue of the in-
consistent interpretation and application of the fourth amendment
in the inventory search context.
In addition to the need for uniform court interpretation of the
inventory search question, the need for guidelines in this area encom-
pass local, state, and federal law enforcement officers who, at present,
cannot accurately ascertain the proper parameters of the fourth
amendment. The possibility of damage suits for violations of the
fourth amendment produces a chilling effect on law enforcement
officials, and makes it extremely difficult to define the boundaries
of the evidence gathering process.
For the above reasons, it is respectfully submitted that it is
imperative that this question be resolved at this time, and that this
case, wherein the inventory search of a locked trunk resulted in
the seizure of contraband unrelated to the crime for which peti-
tioner was arrested, is particularly well suited as the means for
such resolution.
THE INVENTORY PROCEDURE !S A SEARCH
SUBJECT TO THE FOURTH AMENDMENT REQUIRE—
MENT OF REASONABLENESS.
The Supreme Court of the United States has not specifically
decided whether an inventory procedure is a search. In Cady v.
Dombrowski, 413 U.S. 433 (1973), Mr. Justice Rehnquist noted
the state’s argument that an inventory is not a search because
it is not conducted to uncover evidence of a crime and stated,
“We need not decide this issue.’’ 413 U.S. at 442.
A number of lower courts have, however, decided this issue.
Several state courts have concluded that the inventory procedure
is not a search. See, e.g., People v. Sullivan, 29 N.Y. 2d 69, 323
N.Y.S.2d 945 (1971); State v. Wa/ker, 185 Neb. 44, 173 N.W.2d
372, cert. denied, 399 U.S. 912 (1970). This line of cases relies
largely upon a draft of the Model Code of Pre-Arraignment Pro-
cedure of the American Law Institute, where “search” is defined
as an intrusion under color of authority for the purpose of seizing
things. Noting that the inventory examination is not motivated by
an intention to seize evidence, courts have concluded that this is
not a search. See Sullivan, supra.
Numerous courts have, on the other hand, concluded in well
reasoned opinions that the inventory procedure is a fourth amend-
ment search. In Mozetti v. Superior Court of California, 4 Cal.
3d 699, 484 P. 2d 84 (1971), the court stated:
It seems undeniable that a routine police inventory of
the contents of an automobile involves a substantial
invasion into the privacy of a vehicle owner. Regard-
less of professed benevolent purposes and euphemistic
explication, an inventory search involves a thorough
exploration by 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 eyes of authorities. Merely because the police
are not searching with the express purpose of finding
evidence of crime, the are not exempt from the re-
quirements of reasonableness set down in the Fourth
Amendment. Constitutional rights may not be evaded
through the route of finely honed but nonsubstantive
distinctions.
484 P. 2d at 88.
This view of the constitutional posture of the inventory
search seems to be consistent with this Court's construction of
the fourth amendment.
In Camara v. Municipal Court, 387 U.S. 523 (1967), this
Court applied the fourth amendment to administrative fire and
health inspections, and refused to narrow the scope of the fourth
amendment to ‘‘the typical policeman’s search for the fruits and
instrumentalities of crime."’ 387 U. S. at 530. This language from
Camara has been construed by lower courts as the Court's rejec-
tion of a restricted interpretation of the fourth amendment.
See State v. Opperman, 228 N.W.2d 152, 154 (S.D. 1975), cert.
granted, 44 U.S.L.W. 3263 (U.S. Nov. 1, 1975)
Likewise in Terry v. Ohio, 392 U.S. 1 (1972), this Court stated
its belief that the fourth amendment,
governs all intrusions by agents of the public upon per-
sonal security, and .. . (makes) the scope of the parti-
cular intrusion, in light of 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 “search.”
392 U.S. at 18, n. 15.
Since the opinion of the Fourth Circuit Court of Appeals in
this case is premised on the assumption that the intrusion into the
contents of the automobile was a search, this point will not be be-
labored at the present time. However, it should be recognized that
because the inventory procedure utilized by the police in the pre-
sent case is a search, it must comply with the reasonableness re-
quirements of the fourth amendment.
EXCEPTIONS TO THE FOURTH AMENDMENT
WARRANT REQUIREMENT ARE NOT DiISPOSI-—
TIVE OF THE PRESENT CASE.
It is clear that, with a few exceptions, warrantless searches of
private property without consent are unreasonable. See Katz v.
United States, 389 U.S. 347 (1967). The scope of such searches
has been specifically delineated to balance the need to preserve
evidence and protect law enforcement officers, and the need to
preserve the privacy of citizens and protect them from unwarranted
and unreasonable invasions of privacy. Chime/ v. California, 395
U.S. 752 (1969).
The automobile, however, occupies a somewhat different
position with regard to searches than does a private residence.
In Chambers v. Maroney, 399 U.S. 42 (1970), the Court explained
that:
(A)utomobiles and other conveyances may be searched
without a warrant in circumstances that would not jus-
tify 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 to
seize.
399 U.S. at 48. This distinction has arisen from two sources. One,
obviously, is the highly mobile character of the automobile. The
other, voiced by the court in Cady v. Dombrowski, 413 U.S. 433
(1973), is the fact that,
extensive and often noncriminal contact with automo-
biles will bring local officers in ‘‘plain view” of evidence,
fruits, or instrumentalities of a crime, or contraband.
413 US. at 442.
Both the courts and law enforcement officials have struggled
with the application of the fourth amendment to different fact
situations, and Mr. Justice Rehnquist has noted the difficulty of
drawing a single, consistent thread through the decisions on the
reasonableness of vehicle searches. In Cady v. Dombrowski, supra,
he stated that:
(T)he decisions of this Court dealing with the consti-
tutionality of warrantless searches, especially when
those searches are of vehicles. suggest that this branch
of the law is something less than a seamless web.
413 U.S. at 439.
Nevertheless, there are some broad principles to be drawn from
the cases involving warrantless searches of automobiles. A survey
of the major cases suggests that, under a standard of reasonableness,
warrantless searches of vehicles are to be approved only in the
following circumstances:
(1) where there exists both probable cause and exigent circum-
stances (/.e., mobility) at the time of the search, Carro// v. Uniied
States, 267 U.S. 132 (1925); Chambers v. Maroney, supra;
8
(2) when the search is conducted under a reasonable belief
that the vehicle contains an object which might endanger the pub-
lic, Cady v. Dombrowski, supra;
(3) when an automobile is lawfully held as evidence of a crime
preparatory to forfeiture proceedings, Cooper v. California, 386
U.S. 58 (1967); and
(4) when there is evidence or fruits and instrumentalities of
a crime within plain view inside the vehicle, Harris v. United States,
390 U.S. 234 (1968).
Because of the confusion that currently prevails both in the
lower federal courts and in the state courts, the question which
this Court must now decide is how or whether the inventory pro-
cedure at issue in the present case is to be fit into this scheme. Pre-
vious decisions of the Supreme Court have provided a broad basis
of decision for lower courts in cases involving inventory type
searches. For example, the Court, in Cooper v. California, supra,
set forth a standard for testing the reasonableness of inventory
searches, stating:
While it is true, as the lower court said, that “lawful
custody of an automobile does not of itself dispense
with constitutional requirements of searches thereafter
made of it,”’ . . . the reason for and nature of the custody
may constitutionally justify the search.
386 U.S. at 61.
This serves only as a general guideline to courts and law enforce-
ment officials. Likewise, the Court’s decisions in Harris v. United
States, supra, and Cady v. Dombrowski, supra, have been widely
relied upon by lower courts in decisions regarding inventory searches.
indeed, the Fourth Circuit, in the present case, relied on these cases
to validate the inventory procedure of the police. However, a Closer
look at these cases demonstrates not only, as the district court
below pointed out, that they ‘‘rely heavily upon the specific factual
circumstances in which they arise,’’ 374 F. Supp. at 697, but also
that they are distinguishable from the case at hand.
It is significant that the circumstances in Cooper differ sub-
stantially from the facts of the present case. The circumstances
which justified the warrantless search of Cooper’s car following his
arrest for transporting heroin were discussed in detail by the Court:
Here the officers seized petitioner's car because they
were required to do so by state law. They seized it be-
cause 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 had
been impounded, and the reason it was being retained.
The forfeiture of petitioner's car did not take place un-
til over four months after it was lawfully seized. 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.
386 U.S. at 61-62.
The circuit court below construed Cooper as a broad authori-
zation for inventory searches. However, other courts have strictly
limited Cooper to its facts, holding that warrantless searches of
automobiles in police custody are reasonable only if the search is
closely related to the reasons for the arrest and to the reason that
the automobile is being held in custody. Wi//iams v. United States,
412 F. 2d 729 (5th Cir. 1969) (discussed infra).
The assertion that Cooper should be read as a sweeping approval
of inventory searches is reinforced by the Court's decision in Harris
v. United States, 390 U.S. 234 (1968). In Harris, the police decided
to impound the defendant's car as evidence following his arrest.
Pursuant to departmental regulations, a policeman went out to
inventory the car. As the policeman opened the front door of the
car, he noticed the registration card of the burglary victim. The
Court held that, under the “plain view doctrin,”’ this evidence was
lawfully seized. 390 U.S. at 235.
10
However, to read Harris as authorizing an inventory search of
the vehicle in such a situation would be incorrect, for the Harris
court clearly discouraged such an interpretation:
The admissibility of evidence found as a result of a
search under the police (inventory) reguiation is not
presented by this case. The precise and detailed find-
ings of the District Court, accepted by the Court of
appeals, were to the effect that the discovery of the
card was not the result of a search of the car, but of
a measure taken to protect the car while it was in police
custody. Nothing in the Fourth Amendment requires
the police to obtain a warrant in these narrow circum-
stances.
390 U.S. at 236. It is also significant that in a concurring opinion
in Harris, Mr. Justice Douglas seemed to imply that the result
would not have been the same had the search been based on an
inventory theory. 390 U.S. at 237.
Likewise, in Cady v. Dombrowski, supra, cited by the court
below (infra, pp. 9a, 10a, 12a), the reasons justifying the warrant-
less search of the car arose from the circumstances of that case.
In Cady, the automobile of a Chicago policeman was taken into
custody by Wisconsin police following an accident. The Wiscon-
sin police searched the vehicle for the sole purpose of securing the
service revolver which they knew the Chicago policeman was re-
quired to carry at all times. This search, which was conducted in
accordance with “‘standard procedure”’ in the police department,
413 U.S. at 443, turned up evidence which linked the driver with
a murder. The Court held that this search of the trunk of the car
was reasonable ‘to protect the public from the possibility that a
revolver would fall into untrained or perhaps malicious hands.”
413 US. at 443.
This account of these three cases reveals that, viewed in their
respective factual settings, they do not serve as a basis for validating
the inventory search in the present case or inventory searches in
general.
11
First, it is clear that Cooper does not authorize the inventory
in the present case because here, petitioner's vehicle was not im-
pounded pursuant to a forfeiture action. Moreover, the reason for
the impoundment of the car was not related to petitioner's arrest.
Thus, the proper reading of Cooper seers not to be that an inven-
tory search is required, but rather that when the vehicle is being
held as evidence of a crime prior to forfeiture proceedings, such
an inventory is justified.
Likewise, the holding in Harris appears to be limited to the
“plain view” exception to the warrant requirement. In the present
case, the gun discovered in the back seat of petitioner’s automobile
is clearly admissible under Harris. However, it is equally clear that
the articles in the trunk do not come within this ‘‘plain view” excep-
tion.
Finally, there are factual distinctions between Cady and the
present case. First, the petitioner had made arrangements for the
safekeeping of his vehicle. More important, however, is the fact
that the gun, which the police could have reasonably expected to
be in petitioner’s vehicle, had already been discovered when the
inventory was conducted. In the present case, there was no reason
for the police to believe that the car contained anything that would
pose a threat to the public safety. Thus, the basis for establishing
the reasonableness of the search in Cady is lacking here.
The district court in the present case compared Cady with
the facts here.
The compelling nature both of this objective (to protect
the public) and of the desire to carry it out with some
immediacy can be readily appreciated. There is no simi-
lar importunity involved in the making of an inventory
list which might be of some use in resolving a possible
future disagreement between police and a prisoner con-
cerning whether police returned everything in his car
at the time it was taken into custody. To validate the
latter on the basis of the former is to say that if com-
pelling reasons can tilt the balance in favor of a search
12
then any reason can do so. When the safeguards from
unjustified official intrusion set out in the fourth amend-
ment stand on the other side of that balance, such logic
must be brushed aside. The Cady line of precedent does
not command that the search conducted in the present
case be upheld.
374 F Supp. at 698 (infra, p. —a).
THE CONFLICT IN THE FEDERAL COURT SYSTEM
MAKES RESOLUTION OF THIS QUESTION BOTH
NECESSARY AND TIMELY.
The relevant Supreme Court decisions in this area have left the
various Circuit courts of appeals uncertain as to the proper resolu-
tion of this narrow inventory search problem. The Fourth Circuit's
opinion below reflects some of the conflict in this area, and an
examination of the cases relied upon below reveals that this con-
flict is the result of the lack of a definitive decision by the Supreme
Court regarding the fourth amendment constitutionality of inven-
tory searches.
Most of the cases cited by the court below are so factually
dissimilar to the case at hand that they should be viewed as outsic
the inventory search framework. All of these cases, however, demon-
strate the confusion of the courts in this area. For example, in
Barker v. Johnson, 484 F. 2d 941 (6th Cir. 1973), a case cited
by the court below, the officer opened the door of the accused's
car and saw two marijuana cigarettes on the floor of the driver’s
side. Relying on Harris v. United States, 390 U.S. 234 (1968), the
Sixth Circuit ruled that this search and seizure was not unlawful.
Under the rationale of Harris v. United States, .. . ,
this was a proper police function. Once the door had
been lawfully opened, the marijuana cigarettes were
plainly visible. It has long been settled that objects
falling within 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 as evidence.
13
Barker v. Johnson, 484 F. 2d at 942. Barker, then, is not an “‘inven-
tory” case at all, but fits nicely under the ‘‘piain view’ exception
to the warrant requirement of the fourth amendment.
Likewise, it is difficult to see the Fourth Circuit’s own decision
in United States v. Sifuentes, 504 F. 2d 845 (4th Cir. 1974), as any
more than a ‘‘plain view” case. The officers in Sifuentes had opened
the door of an impounded truck to drive it away, when they smelled
the strong odor of marijuana. They immediately examined the con-
tents of several closed boxes in the truck, all of which contained
marijuana. The court held that this seizure of contraband in plain
view was not violative of the fourth amendment.
Two Ninth Circuit cases are cited by the court below as up-
holding the reasonableness of inventory searches. In Cotton v.
United States, 371 F. 2d 385 (9th Cir. 1967), the officers did not
take anything from the car. 371 F. 2d at 390. The holding in
Cotton was that the police action in opening the door of the
defendant's car and obtaining the registration number did not
constitute an unlawful search and seizure. The language by the
Cotton court raises some doubt as to whether Cotton is supportive
of the constitutionality of inventory procedures:
None of the contents of the car was used as evidence
against Cotton at his trial; indeed, none was removed.
None of the contents was used to obtain evidence against
him. Only the serial number was thus used. If the agent
had found any article or paper in the car, and such evi-
dence had been used against Cotton at his trial or to
discover other evidence, we would have a different
case... . Here, only the serial number was used. We
... agree... that it is not a search at all, under such
circumstances as we have here, merely to check that
number in order more positively to identify the car.
This, we think, is quite different from looking for
evidence that may have been placed in the car by its
possessor. When Cotton acquired the car, the serial
number and motor number came with it. And we
would limit the right to check to those cases in which
there is a legitimate reason to do so.
14
371 F. 2d at 393.
United States v. Mitchell, 458 F. 2d 960 (9th Cir. 1972), illu-
strates the uncertainty which marks the decisions of lower courts
in cases involving inventory procedures. In Mitchell, a patrolman
was taking the defendant's car to the impoundment lot following
defendant's arrest for speeding, when he observed several valuable
watches on the front seat and a partially open sample case on the
floor in front of the passenger side of the front seat. When the
officer arrived at the lot, he placed the watches in the sample case.
In the process, he noticed a weapon inside. He then secured the
sample case and took it to the police station, where an inventory
of its contents turned up 29 watches, a blackjack, and the pistol.
The defendant was subsequently charged with possession of
weapon by a felon. 458 F. 2d at 960-61. °
The court’s approval of the officer's actions is especially sig-
nificant in its emphasis on the fact that the watches were in plain
view. The court noted that:
This was responsible, indeed laudable, police conduct
to protect the property of the owner of a lawfully
impounded car. If valuable property had been left on
the seat and floor of the car, plainly visible to anyone
peering throught window, the danger of theft would
have been substantial. Not surprisingly, it appears
that the locking and securing of impounded cars, and
the removal and inventory of valuable property within
plain sight, are standard procedures. They certainly
should be.
458 F. 2d at 961.
Furthermore, the Mitche// court held that: (U)nder the
facts of this case, the action of the patrolman in safe-
guarding valuable property in plain sight in a lawfully
impounded car was reasonable, and hence not prohibited
by the Fourth Amendment.
458 F. 2d at 961-62.
15
However, the Mitche// court limited the scope of its decision
by rejecting the invitation of other courts to approve inventory
searches in general:
We are concerned only with protection of valuable pro-
perty in plain view in a lawfully impounded automobile
.... The patrolman did not open a closed briefcase or ~
the trunk of the car. While it appears that he did remove
watches from the glove compartment, no evidence was
found there. We do not reach the question of whether
any such evidence would have been admissibie.
458 F. 2d at 962.
Two of the Fifth Circuit cases cited by the court below pro-
vide examples of so-called “inventories” which are best understood
as limited exceptions to the warrant requirement. United States v.
Lipscomb, 435 F. 2d 795 (5th Cir. 1970), cert. denied, 401 U.S.
980, reh. denied, 402 U.S. 966 (1971), upheld the validity of an
inventory of the defendant's personal property prior to his incar-
ceration. However, as in Cotton, supra, the officers in Lipscomb
discovered no personal effects in the vehicle. The only issue was
the ascertainment of the correct identification. As in Cotton,
the court held that there is no reasonable expectation of privacy
as to a vehicle’s identification number. 435 F. 2d at 801.
Similarly distinguishable is United States v. Boyd, 436 F. 2d
1203 (5th Cir. 1971), where police officers, acting on an infor-
mant’s tip, approached a car in which the suspects were travelling.
When the driver attempted to escape, an officer fired three shots
at the car, and a collision ensued. Following the accident, the
officers towed the car to the Municipal Building, where the vehicle
was routinely searched in order to inventory the articles therein.
During the course of this search, stolen money orders were dis-
covered. 436 F. 2d at 1204.
The court's primary basis for approving this search was the
Supreme Court’s decision in Chambers v. Maroney, 399 U.S. 42
(1970), which held that a warrantless station house search of an
16
automobile occurring sometime after an arrest was permissible if
the officers had probable cause to believe that the car contained
articles which they were entitled to seize. The Fifth Circuit's appli-
cation of Chambers to the facts of Boyd clearly demonstrates that
their decision was based on a notion that probable cause to search
existed. 436 F. 2d at 1204-05.
The other Fifth Circuit cases cited by the court below, along
with another Fifth Circuit case, not cited, provide perhaps the best
indication of the confusion in this area. Kimbrough v. Beto, 412 F.
2d 981 (5th Cir. 1969), involved an inventory search of a pickup
truck where the truck had been involved in an accident, and the -
driver had been hospitalized. Upholding the admissibility of the
narcotics and narcotics paraphernalia which were discovered in the
course of the inventory, the court emphasized the duty of the police
to inventory the contents of the vehicle and to safeguard the pos-
sessions of the injured driver.
Similarly, in United States v. Pennington, 441 F. 2d 249 (5th
Cir.), cert. denied, 404 U.S. 854 (1971), the police conducted an
inventory search of an impounded vehicle while the driver was
under arrest for reckless driving. A pistol was discovered in the
glove compartment, and the court upheld the reasonableness of
the search, again emphasizing the need for protecting the property
of the arrested person. 441 F. 2d at 252. In accord with Pennington
is Kelehar v. United States, 470 F. 2d 176 (5th Cir. 1972), where
the policeman conducting an inventory search discovered counter-
feit bills under the floor mat. The court employed a similar ration-
ale in approving the search, saying that it fulfilled “the two-fold
purpose of protecting the defendant's property and safeguarding
the police from groundless claims for ‘lost’ possessions.” 470 F.
2d at 178.
Contrary to the holdings of the cases discussed above, the
case of Williams v. United States, 412 F. 2d 729 (5th Cir. 1969),
demonstrates that there is a conflict within the Fifth Circuit
itself. There, the defendant was arrested for vagrancy. The police
conducted an inventory search of the trunk of defendant's car
and discovered blank money orders, two check writing machines,
17
and a revolver. The court rejected the argument that there was a
general police policy to search all impounded cars, and heid that
the evidence discovered in the trunk must be suppressed, stating
that:
(T)he reasons given for the search—that the police
searched all impounded cars—was so vague that it
could not be specifically related to anything and
could not justify any warrantless search .. . . This
policy of making a general search was not specifically
related to the reason the car was impounded and, as
we interpret the cases, will not pass muster.
412 F. 2d at 735. The fact that this case was not cited by the Fifth
Circuit in Pennington or Kelehar nor by the Fourth Circuit below
demonstrates the inability of the courts to agree or to reconcile
the existing law on this question.
Another case, although in a district court, suggests that the
law of inventory searches is far from clear. In United States ex rel,
Clark v. Mulligan, 374 F. Supp. 989 (D.N.J. 1972), officers con-
ducting an inventory of defendant's car discovered glassine enve-
lopes of heroin in plain view. The court admitted this evidence,
but the restrictions placed upon the scope of the search in Mulligan
led two commentators to observe:
In rejecting the contention that an inventory is per se
unreasonable, and demanding that each factual situation
be analyzed separately, the court arguably would not have
allowed the search of closed areas, such as the trunk or
glove compartment.
Miles and Wefing, ‘“The Automobile Search and the Fourth Amend-
ment: A Troubled Relationship,” 4 Seton Hal/ L. Rev. 105, 141
(1972).
The Eighth Circuit's decision in United States v. Lawson, 487
F. 2d 468 (8th Cir. 1973), completes the picture of the conflict
which currently exists among the Circuit Courts of Appeals. The
18
facts of Lawson are similar to the facts of the instant case. The
defendant was placed under arrest for a charge which was not re-
lated to the charge which was subsequently filed as a result of the
inventory search of the locked trunk of his car. In Lawson, as in
the present case, the sole justification for the search was a police
~ procedural regulation.
In considering the validity of the inventory search, the court
noted the absence of definitive gudelines in these cases, stating:
Lower courts have been hampered in this process by a seeming
lack of consistency in the Supreme Court cases dealing with auto-
mobile searches... .
The Supreme Court has not decided whether an inventory
search, without a warran or justified by a recognized exception
to the warrant requirement, would be considered reasonable under
the Fourth Amendment.
487 F. 2d at 470.
Nevertheless, the Lawson court considered the existing case
law and the facts of that particular case and decided that inven-
tory searches do not meet the reasonableness requirements of the
fourth amendment. First, the court noted that the argument that
the inventory procedure is a reasonable way to protect the pro-
perty of the accused,
does not seem adequate to justify the substantial inva-
sion of Fourth Amendment protections involved here.
The essential test of the validity of a search is reasonable-
ness, yet the standard of reasonableness must be evolved
in light of the Fourth Amendment, not in light of what
our view of reasonable police procedures might be. In
addressing itseif to a contention that it was reasonable
to search an entire house without a warrant when a
suspect is arrested in the house, the Supreme Court said
in Chimel v. California, 395 U.S. 752, 764-65, 89 S. Ct.
2034, 2041; 23 L. Ed. 2d 685 (1969):
“But that argument is founded on little more than
19
a subjective view regarding the acceptability of cer-
tain sorts of police conduct, and not on considera-
tions relevant to Fourth Amendment interests.
Under such an unconfined analysis, Fourth Amend-
ment protection in this area would reach the eva-
poration point.”
We think this is a persuasive refutation of the Govern-
ment’s argument that because it is a ‘‘reasonable”’
police procedure it should be upheld under the Fourth
Amendment. Obviously the police have an interest in
safeguarding themselves against groundless claims.
Just as obviausly, and more importantly in terms of
the Fourth Amendment, owners and operators of
motor vehicles have an interest in safeguarding their
possessions from unreasonable police intrusions. A
rule that upon a showing of a legitimate governmen-
tal interest, the constitutional protections of citi-
zens must give way, would eliminate those protec-
tions in the very situations for which they were in-
tended. For the police practice considered here to be
found reasonable under the Fourth Amendment, ab-
sent 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.
487 F. 2d at 475.
Commenting on the reasonableness of searching the trunk
during an inventory, the Lawson court said:
It is unnecessary for us to determine all the reasons for,
and natures of police custody that might justify a
sea; ch; here the only justification for the search is
bare police custody of the vehicle. While police
custody may justify reasonable measures to protect
the vehicle itself (/.e., rolling up the windows and
20
locking the doors), or property within plain view in the
automobile, such reasonable protective measures do not
extend to breaking into a locked trunk. We find our-
selves in agreement with the position taken by the
California Supreme Court in addressing the contention
that the inventory procedures are necessary and reason-
able;
“This contention is rebutted by recognition of the
vehicle owner’s countervailing interest in maintain-
ing the privacy of his personal effects and preventing
anyone, including the police, from searching suit.
cases, and other closed containers and areas in
his automobile at the time the police lawfully re-
move it to storage. In weighing the necessity of the
inventory search as a protection of the owner’s
property against the owner's rights under the
Fourth Amendment we observe that times of
value left in an automobile to be stored by the
police may be adequately protected merely by
rolling up the windows, locking the vehicle doors
and returning the keys to the owner. The owner
himeelf, if required to leave his car temporarily,
could do no more to protect his property.”
Mezzetti v. Superior Court, 94 Cal. Rptr. at 417, 484
P. 2d at 89; accord Boulet v. State, 495 P. 2d at 509.
487 F. 2d at 475-76.
Thus, Lawson presents a view of inventory searches, which,
on a similar fact pattern, is diametrically opposed to the view of
the Fourth Circuit in the present case. Moreover, when these cases
are combined with the conflicting case law presented by the Fifth,
Sixth, and Ninth Circuits, it is clear that there exists a significant
and substantial difference in fourth amendment interpretation
such that this question is particularly suited to review at this time.
21
THE CONFLICT IN THE STATE COURT SYSTEMS
MAKES RESOLUTION OF THIS QUESTION IMPERATIVE.
Given the conflict among the circuit courts, it is not surprising
that there is no uniformity among the state courts on this issue. Some
state courts have used an analysis similar to the analysis of the Fourth
Circuit below in upholding the reasonableness of inventory searches.
See, e.g., City of St. Paul v. Myles, 298 Minn. 298, 218 N.W. 2d 697
(1974). Other courts have taken the position that Lawson states the
law in this area.
A recent Kentucky case held:
Our view is that if it is reasonably necessary either to
impound and store a vehicle or to leave it unattended,
police officers may close anu lock it, and that what-
ever they observe in plain view during that process may
be used as evidence in support of any charge to which
it may be relevant, but that the opening of or prying
into compartments or containers within the vehicle con-
stitutes a search, which in the absence of a warrant or of
special circumstances as exemplified by Dombrowski is
in violation of the Fourth Amendment.
City of Danville v. Dawson, 528 S.W. 2d 687, 691 (Ky. 1975). Two
recent South Dakota cases have also suggested that a reasonable
reading of Lawson would be that police inventory searches must
be restrictec to safeguarding those articles which are in plain view
of the investigating officer. State v. Opperman, 228 N.W. 2d 152
(S.D. 1975), cert. granted, 44 U.S.L.W. 3263 (U.S. Nov. 2, 1975)
(No. 75-76), and State v. Catlette, 221 N.W. 2d 25 (S.D. 1974).
This, by no means, represents an exhaustive survey of the
State cases on this issue. However, this does suggest that until
definitive guidelines for inventory searches are developed, the
states will be faced with the same conflicting precedents that have
troubled the circuit courts which have decided this question. See
Annot., “Inventory Search of an Impounded Vehicle,” 48 A.L.R.
3d 537, for a complete discussion of state cases.
22
ee ee
THE DECISION OF THE COURT BELOW HAS GRAVE
IMPLICATIONS FOR FOURTH AMENDMENT RIGHTS.
The policy considerations present in the instant case are not
unlike those voiced by Mr. Justice Stewart, writing for the majority
in Chimel v. California, 395 U.S. 752, 767 (1969). Mr. Justice
Stewart pointed out the undesirable effects of United States v.
Rabinowitz, 339 U.S. 56 (1950), which had come to stand for the
proposition that a warrantless search incident to a lawful arrest
could extend to the total area in the ‘‘possession”’ or ‘‘control’’
of the person arrested, and of Harris v. United States, 331 U. S.
145 (1947) (a different case than the Harris ‘plain view’’ case
discussed earlier), which authorized extensive searches incident
to arrest. These cases, said Mr. Justice Stewart, when applied to
the fact situation in Chimel,
give law enforcement officials the opportunity to engage
in searches not justified by probable cause, by the simple
expedient of arranging to arrest suspects at home rather
than elsewhere. We do not suggest that the petitioner
is necessarily correct in his assertion that such a strategy
was utilized here, but the fact remains that had he been
arrested earlier in the day, at his place of employment rather
than at home, no search of his house could have been made
without a search warrant.
Chimel, 395 U.S. at 767.
Likewise, the decision of the Fourth Circuit creates the danger
that the broad category of ‘‘inventory searches” will be used to jus-
tify all warrantless searches of the vehicle of an arrested person. In-
deed, as one commentator has asserted, the broad authority to con-
duct inventory searches ultimately results in ‘“‘the elimination of
probable cause as a condition precedent to a search.” Comment,
“The Aftermath of Cooper v. California: Warrantless Automobile
Search in Illinois.” 1968 U. of ///, L. Forum 401, 407 (1968).
Thus, there is a danger that the inventory search will become
nothing more than a subterfuge for warrantless searches for evi-
dence. Defendants will be unable to demonstrate bad faith o1
23
misconduct, just as in Chime/ there was no way to prove that the
officers delayed the arrest in order to conduct a warrantless search
of Chimel’s house. This possibility of misconduct is significantly
increased when the criminal conduct does not in any way relate
to the automobile, as in the instant case.
The fact that the proponents of inventory searches assert that
the purpose of such procedures is not to discover incriminating
evidence, but rather to protect property and to avoid false claims
strains logic and dilutes the fourth amendment. In Camara v.
Municipal Court, 387 U.S. 523 (1967), the Supreme Court, ad-
dressing the issue of administrative searches, faced a similar con-
tention and stated:
We may agree that a routine inspection of the physical
condition of private property is a less hostile intrusion
tnan the typical policeman’s search for fruits and instru-
mentalities of crime .. . But we cannot agree that the
Fourth Amendment interests at stake in these inspec-
tion cases are merely ‘‘peripheral.”’ 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.
The district court below applied this observation to the pre-
sent case and noted:
The framers of the Fourth Amendment sought not to
protect criminals, but to protect from unreasonable search
those in whose possession no incriminating evidence would
be found. And it must be felt that the motivation behind
the Amendment was not simply a sympathy with dis-
appointment of the person searched at the discovery that
he was not above suspicion, but a shared indignation at
the uncontrolled official sifting and summarizing through
private papers and effects which are no less part and par-
cel of an “inventory” than of a fruitless criminal search.
24
Cabbler, 374 F. Supp. at 696.
As these cases demonstrate, the lower courts’ justifications for
inventory searches have rested on the policies of police departments
which authorize these searches. However, the Constitution does
not sanction searches which would otherwise be unreasonable
solely because they frequently occur.
OTHER MEANS OF ACHIEVING THE STATED GROUNDS
FOR INVENTORY SEARCHES, VIZ., TO PROTECT THE
PROPERTY OF THE PERSON ARRESTED AND TO
PROTECT THE OFFICERS FROM FALSE CLAIMS, WHICH
ARE MORE EFFECTIVE AND MORE EFFICIENT ARE
AVAILABLE.
When the justifications for inventory searches are laid bare,
it is clear that there exist more reasonable alternatives than the
one proposed by the decisior velow. First of all, the approval of
inventory searches on the ground that they are performed pur-
suant to police regulations is a “‘bootstrap’’ argument. The Con-
stitution does not sanction unreasonable searches solely because
they occur frequently. Lower courts have recognized this point.
In United States v. Chadwick, 393 F. Supp. 763 (D. Mass. 1975),
the court stated:
The reasonableness of an inventory search is to be tested
against established constitutional principles, and not on the
basis of routine administrative practice.
393 F. Supp. at 766.
The circuit court of appeals in Harris (plain view) also
commented on the effect of the police regulation:
The entry cannot be justified merely because it was
made pursuant to a police regulation. The police
cannot legalize unconstitutional searches simply
by promulgating and acting pursuant to regulations,
no matter how reasonable they may be.
25
Harris v. United States, 370 F. 2d 477, 480 (D.C. Cir. 1968), aff'd.
390 U.S. 234 (1968).
The second, and most prevalent, justification for inventory
searches is that they are necessary to safeguard the property of the
arrested person and to protect the police from false claims of theft.
However, when these interests are balanced against the fourth
amendment interests at stake, this dual justification is clearly in-
adequate. |
One commentator has addressed the need of the police to
protect the contents of the vehicle from theft, stating:
Arrestees should be allowed to assume the risk of loss
by asking to leave their own vehicle at the roadside
or by requesting that someone be contacted to pick
up the car. It is true that when a car must be impounded
the risk that some items will be removed when the car
is taken to a garage may still be present. But even if
this small risk does exist, it is unreasonable to think
that the owner would exchange Fourth Amendment
rights for unwanted protection against theft. In short,
this supposed justification turns the Fourth Amend-
ment on its head.
Comment, Chimel v. California, A Potential Roadblock to Vehicle
Searches,’’ 17 U.C.L.A. L. Rev. 626, 641 (1970).
Considering the practicability of the need to protect the con-
tents of the vehicle, several courts have turned to the basic con-
cepts of property law and pointed out that if the owner of the
vehicle were to bring a civil action for loss of property, the owner
would bear a substantial burden of proof.
The South Dakota Supreme Court stated:
When in possession of an impounded car the police are
acting as gratuitous depositors. $.D.C.L. 43-39-11 pro-
vides that ‘’(a) gratuitous depository must use at least
26
slight care for the preservation of the thing deposited.”’
Certainly removal of hose objects within plain view and
closing of windows and locking of doors satisfies the
minimal standard of “‘at least slight care,’’ thus pro-
tecting the police from civil tort claims.
State v. Opperman, 228 N.W. 2d 152, 159 (S.D. 1975).
The California Supreme Court has joined in this view, stating,
“In no case is an inventory of items not within plain sight essential
to safeguard the contents (of a car) or to fulfill a ‘slight’ duty of
care.’’ Mozetti v. Superior Court of Sacramento County, 4 Cal.
3d 699, 484 P. 2d 84, 90 (1971).
The district court below also recognized this fact:
To the extent that the inventory is conducted for the
benefit of the owner of the vehicle, it is unclear why he
cannot be asked if he wants the benefit of such protec-
tion. To the extent that the inventory is conducted to
protect the police against false claims, it must be remem-
bered that the burden of showing tha? any item was in
fact in the car at the time of the seizure would be on the
owner. Furthermore, police are required only to take
reasonab!ie precautions in light of what they reasonably
believe to be in their possession. Upon a refusal to con-
sent to an inventory, it would appear that police would
be justified in assuming that they were in possession of
nothing more than an automobile and its necessary accou-
trements. The dangers of false claims prevailing under
these circumstances, while not non-existent, are suffi-
ciently minute to make the sacrifice of constitutionally
protected interests for the purpose of further diminish-
ing those dangers patently unreasonable.
Cabbler, 374 F. Supp. 15 700.
A further practical point on the efficacy of the inventory
procedure concerns the subsequent utility of the inventory list.
27
An Arizona court recognized the dificiencies of this procedure.
Unscrupulous persons who desire to steal articles will
simply not list them on the inventory. Owners who
wish to assert spurious claims against law enforcement
officers or the garage owners can simply claim that the
officers did not list them on the inventory. In fact, we
can envision instances when the taking of an inventory
may actually alert potential thieves to the value of items
contained in the automobile.
/n re One 1965 Econoline, 17 Ariz. App. 64, 495 P. 2d 504, 506
(1972); vacated, 109 Ariz. 433, 511 P. 2d 168 (1973).
Thus, there are several alternatives to the broad inventory
search authorized by the decision below. For example, in the pre-
sent case, the defendant requested that his car be left in the park-
ing lot, since he had made arrangements to have it picked up. If
the police were motivated solely by desires to protect the contents
of the car, the reasonable approach would have been to lock the
car and honor the defendant's request. Even after the car was
impounded, there were alternatives to the inventory procedure.
As the district court below pointed out, one such measure ‘“‘would
entail no more than the sealing of the trunk in such a way that an
unbroken seal would indicate that the trunk had not been opened
during police custody.”’ Cabb/er, 374 F. Supp. at 700.
The Lawson court, after considering these alternative approaches,
attempted to devise an approach which would be applicable to a
large number of cases:
We think the proper approach in this area is to assess
the reasonableness of the police conduct in light of all
the circumstances of the case, without giving effect to
the presence or absence of a police regulation. This
approach does not have the surety of a rule declaring
all inventory searches to be reasonable or unreasonable,
and must to some extent leave law enforcement officials
with some uncertainty as to what will be considered
28
reasonable or unreasonable. This, however, appears to
be a fact of life when dealing with Fourth Amendment
problems in a variety of contexts. When unsure as to the
legality of their contemplated conduct, it is always open
to the police to attempt to secure a warrant in order to
have a prior judicial determination of the reasonableness
of their proposed conduct, though in many instances
the exigencies of the situation may preclude such a course.
We do not believe it possible for this court to settle this
area of the law. We do think however, that it should
only be in the atypical case that police officers would
find it necessary to conduct a general inventory search
of an impounded vehicle. The owner or operator of a
vehicle may be able to take reasonable steps to safeguard
his property at the time of arrest, thus obviating the
necessity of impoundment in that instance, unless, of
course, the automobile has been impounded as evidence
or pursuant to a forfeiture statute. If the impounding
is done for the stated reason, the protection of the
owner’s property, it is only reasonable that the owner
be allowed to choose whether or not he wishes his car
impounded. In cases where the owner or operator can-
not make his wishes known, whether because of inca-
pacity or absence (/.e. a parking violation), in most
instances the property would be adequately safeguarded
by rolling up the windows and locking the doors, subject,
of course, to reasonable steps to safeguard property in
plain view within the automobile. We think such a stan-
dard procedure would insure as well as an inventory
protection against groundless claims for lost property.
In the instant case, it is hard to see, when the car was
locked and the windows rolled up at the time it was
impounded, how the property is better safeguarded by
a breaking into the car and locked trunk to inventory.
In many cases, the value of the property ‘‘safeguarded’’
by these actions would be less than the damage caused
to the automobile by these ‘‘protective’’ measures.
487 F. 2d at 477.
CONCLUSION
Confronted by the confusion which exists with regard to
inventory searches, the Court is presented with at least three
alternatives. See Comment, supra 1968 U. of ///. L. Forum at
407, n. 63. First, the Court could adopt the decision below and
issue a broad authorization of inventory searches. If this approach
is adopted, the police could conduct a full search of an impounded
vehicle to inventory its contents and use any evidence discovered
in this search against the defendant. As pointed out above, this
creates a danger of trampling fourth amendment rights by virtually
eliminating probable cause as a condition precedent to search.
A second approach for the Court would be to accept at face
value the present justifications for inventory searches and hold
that though a thorough inventory search may be conducted to
safeguard the owner's property and to protect the police, any
evidence discovered in the inventory could not be used against
the defendant. This approach has two serious flaws. First, as
discussed above, it overstates the obligations of the police regard-
ing impounded property. More importantly, however, this ap-
proach misinterprets the nature of the fourth amendment right.
This Court has made it clear that the purpose of the fourth amend-
ment is not to protect the accused from conviction, but to secure
the right to privacy. Griswold v. Connecticut, 387 U.S. 479, 485
(1965); Boyd v. United States, 116 U.S. 616, 630 (1886). If the
police are given alithority to conduct a warrantless intrusion such
as an inventory search, this right will be violated.
The third, and most preferable, approach for the Court would
be to prohibit police from searching under the guise of the inven-
tory search. This approach would protect the deferidant’s right
to privacy. However, more importantly, the Court, in reaching
such a decision, could produce orderly guidelines for law enforce-
ment officials.
Such a decision would not prohibit the police from searching
a vehicle where there is probable cause to do so. Rather, when
police have probable cause, they may obtain a warrant. Or, where
30
there is probable cuase, plus exigent circumstances, police could
conduct a warrantless search. Neither would the approach suggested
here prevent police from seizing articles in plain view inside the
vehicle. Such action clearly falls within the current ‘‘plain view”
exception to the warrant requirement. Likewise, where the owner
of the vehicle expresses a desire to have the contents of his vehicle
invento’ »d, a subsequent warrantless search would clearly be
valid as a consent search.
In short, the confusion which currently exists as to the pro-
per constitutional approach to an “inventory search”’ such as the
one in the present case could be clarified by doing away with this
amorphous term and developing a rule-oriented decision based on
the current exceptions to the warrant requirement. Just as the
situation which existed before Chime/ led to abuse of fourth amend-
ment rights and ineffective law enforcement, so the present status
of the inventory search creates a situation in which fourth amend-
ment rights are ignored and law enforcement officials are uncertain
as to what course of action they may constitutionally pursue.
For these reasons, it is respectfully submitted that the writ
of certiorari should be granted.
Respectfully submitted
Samuel W. Tucker
Hill, Tucker & Marsh
214 East Ciay Street
Richmond, Virginia 23220
Gerald G. Poindexter
Poindexter & Poindexter
304 West Cary Street
Richmond, Virginia 23220
Counsels for Petitioner
31
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 74-1555
HERBERT W. CABBLER
Appellee
v.
SUPERINTENDENT, Virginia
State Penitentiary Appellant
ORDER
We have considered the petition for rehearing and are of
opinion it is without merit.
It is accordingly ACJUDGED and ORDERED that the
petition shall be, and the same hereby is, denied.
With the concurrences of Judge Craven and Judge Field.
S/ Circuit Judge Widener
For the Court
FILED
January 13, 1976
William K. Slate, II
Clerk
A True Copy, Teste:
William K. Slate, 11, Clerk
_Bv S/ Diane Burke
Deputy Clerk
la
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 74-1555
HERBERT W. CABBLER
Appellee
v.
SUPERINTENDENT, Virginia
State Penitentiary Appellant
Appeal from the United States District Court for the Eastern District
of Virginia, at Richmond. Robert R. Merhige, Jr., District Judge.
Argued February 7, 1975 Decided Dec. 8, 1975
Before CRAVEN, FIELD and WIDENER, Circuit Judges
Gilbert W. Haith, Assistant Attorney General of Virginia, (Andrew P.
Miller, Attorney General of Virginia, on brief) for Appellant; (William
K. Lambie, Jr., Associate Executive Director, Frank G. Carrington,
Executive Director, Wayne W. Schmidt and Harrison Mann on brief
for Amicus Curiae Americans for Effective Law Enforcement, Inc.,
and the Virginia Chapter of Americans for Effective Law Enforcement,
inc.) JeRoyd X. Greene (Greene and Poindexter, Inc., on brief) for
Appellee.
2a
WIDENER, Circuit Judge:
The petitioner Cabbler, a prisoner of the Commonwealth of
Virginia, sought habeas corpus relief under 28 USC S 2254 from
his convictions of grand larceny and petty larceny in the Virginia
courts, alleging that evidence was‘admitted in his trial which had
been seized from his automobile in violation of the Fourth Amend-
ment. Based on the state record, the district court found for the
petitioner, 374 F. Supp. 690 (E.D. Va. 1974), and issued the writ.
From this order the Commonwealth appeals. We reverse.
Early in the morning of September 2, 1969, Cabbler was
being sought by the Roanoke police in connection with a shoot-
ing incident. The police saw Cabbler’s car and followed it to a
Roanoke hospital. Cabbler, who was driving the car, parked it in
the driveway leading to the emergency room around 1:20 a.m.
and went into the emergency room. Based on telephone informa-
tion that a warrant had been issued for Cabbler’s arrest for a
felony (shooting into an occupied dweiling), a Sergeant Reynolds
of the Roanoke police entered the hospital and arrested him in
the emergency room. Cabbler was searched, his car keys were
taken, and then returned to him, and he was handcuffed. While
he was being placed in the police car, he gave the car keys to the
officers and asked them to roll up the windows of his car.’ As
the officers complied with his request, they picked up a pistol
in the back seat of the car, ? which they then seized. Leaving an
officer to guard the car, Sergeant Reynolds took Cabbler to the
police station and placed him in custody of other officers. Reynolds
then returned to the scene and drove Cabbler’s car to the police
station. After
1. The testimony is in conflict as to whether the car keys were
returned to Cabbler by the officers and later given back to them.
2. There was testimony that the officers had seen the pistol in
the car before they entered the hospital. The seizure of the pistol
is not an issue in this case, and we note that it was in plain view
regardless of when the officers first saw it. Cabbler’s convictions
of which he here complains were unconnected with the pistol or
the shooting incident.
closing the windows, Reynolds had advised Cabbler that the car
would be removed to the city garage for safe keeping, to which
Cabbler did not protest, although Cabbler later testified that he
had told the police to leave his car there as he had made arrange-
ments to have it picked up.
Sergeant Reynolds testified that he had impounded the car
to keep it safe until Cabbler was released. He testified that even
if he had heard Cabbler say that someone was coming to get the
car, he still would have impounded it, for he considered himself
responsible for the safe keeping of the car and its contents after
arresting Cabbler. There was a long standing police department
policy to take into custody for safe keeping the automobile of a
person arrested away from home, and to remove and inventory
its contents to protect against theft or loss of property from the
stored car and also to protect the city against false claims of loss. 3
Pursuant to this policy, Sergeant Reynolds opened the trunk
of the car, removed numerous items of personal property, and tagged
them. They were turned over in the morning to the officer in charge
of impounded property. Cabbler was released on bail within a few
hours, and, although he claimed his car and it was returned to him
at that time, he did not then or later claim the tagged personal
property which was left at the police department and ce:tain items
of which were later identified as being stolen. This was the evidence
introduced at Cabbler’s larceny trial, and its use in that trial is chal-
lenged here.
Prior to trial on larceny charges, Cabbler moved to suppress
the evidence found in the trunk of his car, arguing that the car had
been illegally seized and searched, the same issue he raised in his
petition below. A hearing was held on the motion, in which all the
relevant facts concerning the seizure were developed. The motion
was denied and petitioner was convicted at the trial. He appealed
to the Virginia Supreme Court, raising the search and seizure issue
3. Such a claim, indeed, was asserted on account of this very
impoundment long before the institution of this suit in the district
court.
4a
along with other issues. The Virginia Supreme Court, in a formal
opinion, affirmed his convictions, holding that the seizure of the
car and the search thereof were no: in violation of his constitutional
rights. Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781
(1971). Cabbler sought review in the United States Supreme Count
by way of petition for writ of certiorari, which was denied. 405 US
1073 (1972).
The Commonwealth, in the court below, and on appeal here,
argues that the claim of the petitioner is not one cognizable in a
federal habeas corpus proceeding. It asks us to adopt the rationale
of Mr. Justice Powell in his concurring opinion in Schneck/oth v.
Bustamonte, 412 US 218, 250 (1973), and hold that, since the
petitioner was provided with a fair opportunity in the state courts
to raise and have adjudicated the Fourth Amendment claim, and
since his claim does not go to his innocence but rather to the police
procedures used, he should not be entitled to federal habeas corpus
relief even assuming we were to conclude that the adjudication of
his constitutional claims was in error. It argues that ‘’federal coiiat-
eral review of a state prisoner’s Fourth Amendment claims - claims
which rarely bear on innocence - should be confined solely to the
question of whether the petitioner was provided a fair opportunity
to raise and have adjudicated the question in the state courts’.
Schneckloth, p. 250. (Mr. Justice Powell concurring). And, of
course, the argument might apply with special force when a peti-
tion for certiorari has been denied. *
Cabbler has had a full and fair opportunity to have his claim
adjudicated in the state courts. The claim was raised, a hearing to
determine the facts was held, and the state trial court and Supreme
Court both specifically addressed the issue. We agree with the state
3a. The application for, and denial of, certiorari, while it empha-
sizes the opportunity of the prisoner to have his case adjudicated
on the merits, of course”. . . imports no expression of opinion
upon the merits of the case... . ’’ United States v. Carver, 260 US
482, 490 (1923).
on this. But Schneck/loth does not overrule Kaufman v. United
States, 394 US 217 (1969), which holds permissible collateral
review of search and seizure claims under 28 USC S 2255, and
Whitely v. Warden, 401 US 560 (1971), Harris v. Nelson, 394 US
286 (1969), and Mancusi v. DeForte, 392 US 364 (1968), which
allowed such collateral review of state convictions. Both the opinion
of the court (p. 249, n. 38) and Mr. Justice Blackmun’s concur-
rence (p. 249) indicate that the opinion does not reach
these cases and finds instead that the search in issue was permissible
under the Fourth Amendment. See also Cardwei/ v. Lewis, 417 US
583, 596 (Mr. Justice Powell concurring) and n. 12 (1974).
We are thus of opinion that we must reach the merits of
Cabbler’s Fourth Amendment claim and decline to follow the
concurring opinion of Mr. Justice Powell in Schneck/loth. On this
subject generally, see Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners, 76 Harv. L. REv. 441 (1963).
When the police arrested Cabbler, they could have left the
car where it was; however, it does not seem to us to be unreasonable
police procedure to give protection to the personal effects of a
prisoner. See United States v. Sifuentes, 504 F2d 845, 849 (4th
Cir. 1974); Cabbler v. Commonwealth, 212 Va. 520, 184 S.E 2d
781 (1971). The evidence is overwhelming that the sole purpose
of the im, »undment was to protect the car and its contents until
Cabbler could reclaim them. This is not contested anywhere in
the proceeding. As the district court observed. ‘it would be
anomalous to find that the Fourth Amendment, designed to insure
the sanctity of private possessions, compelled the police to leave
the personal effects of a prisoner . . . scattered in the street....°
374 F. Supp. 690, 693. Additionally, the car in this case repre-
sented a nuisance where it was parked, in the driveway to the
emergency room of a hospital. See Cady v. Dombrowski, 413 US
433, 447 (1973). We are of opinion that when a person is arrested
away from home, the police may impound the persona! effects
that are with him at the time to ensure the safety of those effects
or to remove nuisances from the area. See Sifuentes, p. 848, 849.
Harris v. United States, 390 US 234 (1968), has a similar
factual basis tc the one at bar. There, the suspect’s car had been
impounded for evidence, not for safe keeping. Operating under a
6a
+ am lll
police regulation that required all impounded vehicles to be searched
thoroughly and to secure all valuables in it, the arresting officer
discovered incriminating evidence as he was securing a door and
window. The court held that the evidence was not obtained as the
result of a Fourth Amendment search. Rather, it found that the
actions of the officer were taken to protect the car while it was in
police custody, and ‘‘(n)othing in the Fourth Amendment requires
the police to obtain a warrant in these narrow circumstances.”
Harris, p. 236. The court further stated that (t)he admissibility of
evidence found as a result of a search under the police regulation
is not presented in this case.”” Harris, p. 236. Here, the officers
made an inventory of the contents of the auto under a department
requirement of many years’ standing. The Commonwealth urges
us to hold that this was not a search, but rather just a housekeeping
function as in Harris. \n view of the disposition we make of the
case, it is not necessary for us to reach that question, but the
reasoning of Harris is persuasive to cur holding. Assuming that
the intrusion into the contents of the automobile was a search,
we are of opinion it was reasonable rather than unreasonable.
in Cady v. Dombrowski, 413 US 433 (1973), the Supreme
Court dealt with what was conceded to be a search of a car removed
by the police to aprivate lot. The driver of the car was a policeman
from another city. While intoxicated, he had wrecked his car and
subsequently had been arrested for drunken driving. The police
had his car towed to a private lot, where they later searched it
for his police revolver which they believed he had with him. Their
sole motive was to secure the revolver from falling into improper
hands. As a result of this search, in accordance with “ ‘standard
procedure in (that police) department’,’’ p. 443, evidence was
found to link the driver with a murder. After determining that
seizure of the vehicle was lawful, the Supreme Court determined
that the case was controlled by Harris, supra, and Cooper v. California,
386 US 58 (1967), even though Harris had been held not to be a
search in the sense the word is used in the Fourth Amendment.
As the court stated, ‘’(i)n /‘arris the justification for the initial
intrusion into the vehicle was to safeguard the owner’s property
and in Cooper it was to guarantee the safety of the custodians.”’
Cady, p. 447. It went on to find that a search to protect the
public from a dangerous weapon was also reasonable.
7a
The search in the case at hand had two purposes: (1) to protect
the owner’s property and (2) to protect the city from false claims.
These reasons would seem to be a reasonable basis for a search of a
lawfully impounded vehicle. The fact that such protection might be
accomplished by less intrusive means, such as a waiver, does not, by
itself, make such a search unreasonable. See Cady v. Dombrowski,
supra, p. 447.
in summary, we hold that the police do not violate the Fourth
Amendment when they impound a vehicle to protect it or to remove
a nuisance after arresting the driver away from his home, and he has
no means immediately at hand for the safe keeping of the vehicle.
Assuming an inventory of the contents of a lawfully impounded
vehicle to be a search under the Fourth Amendment, an inventory
taken of a lawfully impounded vehicle to protect the property from
pilferage or the officers from false claims of loss is reasonable, and
hence not in violation of the Fourth Amendment.
We follow here our reasoning in Sifuentes, p. 848, 849, in
which the impoundment of a vehicle was authorized because
‘‘(s)ound police practices dictated impoundment of the vehicle
to protect both its rightful owner and the motel.” p. 849. in Sifuentes,
we construed Cooper, Harris, and Cady * as follows:
Cady limited the holding of Preston v. Ugited States, 376
US 364 (1964): ’. . . it stands only for the proposition that the
search challenged there could not be justified as one incident to
an arrest.”” 413 US 433, 444.
4. Cooper v. California, 386 US 58 (1967), sustained as reasonable
the search of an automobile impounded as evidence. |n that case,
the court said: ‘While it is true . . . that ‘lawful custody of an
automobile does not of itself dispense with constitutional require-
ments of searches thereafter made of it’ . . . the reason for and
nature of the custody may constitutionally justify the search.”
386 US 58, 61.
“In two recent cases, the Supreme Court held that
impoundment provided a lawful reason for initial
intrusion into a vehicle whose operator was detained
in custody. See. e.g., Cooper v. California, 386 U.S.
58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Harris v.
United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.
2d 1067 (1968). In a third case. Cady v. Dombrowski,
413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973),
the Court found the initial intrusion lawful after the
policie had exercised control over a disabled vehicle
by having it towed to a private garage, even though
they had relinquished physical custody. |n Cooper,
the court justified the initial intrusion because it afforded
protection for the officers; in Harris, the intrusion was
for the justifiable purpose of protecting the owner's
property; and in Cady, justification arose out of the
necessity to protect the public. See Cady v. Dombrowski,
413 U.S. 433, 447, 93 S.Ct. 2523, 37 L.Ed2d 706 (1973).”’
504 F2d 845, 848.
We think the intital impoundment was reasonable as a sound
police practice to protect both the owner from loss and the city
from damage claims. The routine inventory was likewise reasonable
for the same reasons. An additional justifiable reason to impound
the vehicle initially was to remove it as a nuisance in the driveway
to the hospital emergency room. Cady, p. 447. The reasoning of
Sifuentes, Cady, and Harris is persuasive and we base our holding
on those cases.
We are accordingly of opinion that the impoundment and
_ inventory, as a result of which the personal property introduced
in evidence was discovered, was reasonable.®
The judgment of the district court is accordinaly REVERSED
5. The following cases have been found reasonable impoundment
and inventory searches, either or both: United States v. Kelehar,
9a
Fn 5 Continued
470 F2d 176 (5th Cir. 1972); Barker v. Johnson, 484 F2d 941
(6th Cir. 1973); United States v. Mitchell, 458 F2d 960 (9th Cir.
1972); United States v. Pennington, 441 F2d 249 (5th Cir. 1971);
United States v. Boyd, 436 F2d 1203 (Sth Cir. 1971); United
States v. Lipscomb, 435 F2d 795 (5th Cir. 1970); Kimbrough v.
Beto, 412 F2d 981 (5th Cir. 1969); Cotton v. United States,
371 F2d 385 (9th Cir. 1967).
Contra: United States v. Lawson, 487 F2d 468 (8th Cir.
1973).
10a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
HERBERT W. CABBLER FILED
April 23,1974
Vv. CLERK, U. S. DIST. COURT
RICHMOND, VA.
SUPERINTENDENT, VIRGINIA CIVIL ACTION
STATE PENITENTIARY NO. 73-538-R
MEMORANDUM
Petitioner, a Virginia prisoner, seeks habeas corpus relief from
detention pursuant to his conviction of grand larceny in the Hustings
Count for the City of Roanoke on February 21, 1970. Asa result
of that conviction petitioner was sentenced to serve a term of
eleven years in the penitentiary. Jurisdiction is attained pursuant
to 28 U.S.C. S 2254. State court remedies have been exhausted.
The case is presently before the Court on respondent’s motion to
dismiss and for summary judgment. Memoranda have been received
from both sides and the merits of the claims were to some extent
addressed in the course of oral argument on an unsuccessful motion
by petitioner for bond pending the outcome of his petition. Upon
the material before it, the Court deems the matter ripe for disposi-
tion.
The following facts emerge from the petitioner's trial court
transcript:
In the early morning of September 2, 1969 at approximately
1:20 a.m., Cabbler parked his Cadillac automobile on a driveway
in front of the Community Hospital of Roanoke Valley and pro-
ceeded into the emergency room of the hospital (T. 38). There was
some conflict in the evidence as to whether the Cadillac partially
blocked the entrance to the emergency room driveway.
lla
Cabbler testified that the car was parked in a fifteen minute
zone (T. 149). The arresting officer stated the hospital regulations
marked the place where the car was parked as a no parking zone
(T. 65), and Cabbler’s car partially blocked the emergency room
driveway even though an ambulance could drive by to the emer-
gency room (T. 82).
Cabbler was arrested inside of the hospital hy a Roanoke
City police sergeant, R. C. Reynolds, upon information he ob-
tained on the telephone that a warrant was being issued against
Cabbler for shooting into an occupied dwelling (T. 40 and 41).
At the time of the arrest in the emergency room, Cabbler was
searched and the keys to his automobile parked outside of the
hospital were taken from him by Sergeant Reynolds (T. 55;
T. 151; T. 153; T. 162; T. 213; and T. 254). Cabbler was taken
from the hospital and placed in a police car (T. 41 and 42). It
was beginning to rain and Cabbler asked one of the police officers
to ro!l up the sindows of his automobile (T. 42); but before the
windows were rolled up, Cabbler was placed in the police car.
When rolling up the windows and even beforehand, the police
officers observed a pistol on the back seat of the car. This pistol
was taken by the officers at the time but that search is not here
involved. Cabbler was then taken by Sergeant Reynolds to police
headquarters in the police car (T. 48):
Cabbler testified that he had thought he would be in the
hospital all night because of a gunshot wound (T. 155; first
answer) and that he had called his restaurant and asked the coun-
tergirl to send one of his employees to pick up his car (T. 150).
He further testified that he attempted to tell the officer that
someone would pick up his car (T. 156; T. 163, first answer).
In any event, Cabbler did not give the police officers permission
to remove the car (T. 206; second answer) or to look in the trunk
of the car and keep the property therein for safe keeping (T. 206,
third answer). Further, it is undisputed that the police officers
did not suspect stolen goods were in the trunk of the automobile
(T. 206; fifth answer). Nonetheless, after taking petitioner to_
the police station, Sergeant Reynolds returned to the hospital
and drove Cabbler’s car to the police station as well.
12a
The evidence is that Sergeant Reynolds’ retrieval of Cabbler’s
car was for the purpose of keeping the car safe until Cabbler was
released from jail (T. 47 and 48; T. 67 and 68; T. 202; T. 206). The
established police department policy was to remove all valuables
from an automobile taken into custody and return them to the
owner upon his release on bail (T. 210, fourth answer). The evidence
further discloses that the arresting police officer would not have
left the car locked and unattended even if he had known Cabbler
had someone coming to the hospital to pick up the car (T. 77).
Sergeant Reynolds testified that if he had arrested Cabbler and
not taken Cabbler’s car into custody, he would have been respon-
sible for all the property in the car at that time (T. 73, first answer).
When Sergeant Reynolds drove the Cadillac to police head-
quarters, he planned to take any property from the car and put
it in the No. 2 property room on the first floor of the Municipal
Building (T. 49). When he opened the trunk of the car with the
key found on Cabbler’s person at the time of Cabbler’s arrest,
Sergeant Reynolds observed that the goods in the trunk were so
numerous that the No. 2 property room would not hold them. He
then drove the automobile to the Municipal Building Annex and
moved the goods from the trunk of the car to a property room
in the basement of that building (T. 50). Because this property
room in the basement was locked and the key would not be avail-
able until the next morning, Sergeant Reynolds and Police Sergeant
Allen, with the possible assistance of other police officers, placed
the property taken from Cabbler’s car on a pool table in the base-
ment of the building. Then they began to inventory the goods in
preparation of putting them in the property room after it became
accessible the next morning (T. 50 and 51). The purpose of taking
the property from the locked trunk of the car was to keep it safely.
until Cabbler was released on bail (T. 50, last answer). Cabbler
was released on bail and picked up his car within an hour or two
after being arrested (T. 51, last answer; T. 257, second answer)
and long before the property taken from the trunk of his car for
safe keeping was removed from the pool table to a safe property
room.
The evidence was that it has been the long-standing custom
13a
of the Roanoke City Police Department to take into its possession
the automobile of a person arrested and to remove from the auto-
mobile and inventory the valuable goods found therein. Apparently
it is not necessary that the person arrested be in his automobile at
the time of his arrest; it is only necessary that he be away from
home. If a man is arrested for illegal parking, his car is not taken
or his property inventoried (T. 58, line fifteen and sixteen). If he
is arrested at his home, his car is not taken (T. 58). It was conceded
that there was no written process to seize the car, no search warrant
obtained at any time (T. 199) and no probable cause to believe
stolen property was in the locked trunk of the car (T. 69) and no
process to keep the property after the car was returned to Cabbler
(T. 7). It is conceded by both sides that the officers in this case
did not intend to search the trunk for evidence or stolen property,
but to take any property therein for ‘‘safekeeping.”’
It was adequately proved that some of the property found in
the locked trunk of Cabbler’s car on September 2, 1969 was stolen
property. Cabbler was convicted on five larceny charges as one who
received stolen goods knowing them to have been stolen. He argues
that the evidence seized in the trunk should have been suppressed.
Three legal questions are presented by the facts: (1) was
seizure of the car justified; (2) did a Fourth Amendment search
follow; and (3) if so, was that search reasonable.
Initially, the Court must decide whether the car itself was
legally removed to the police station. The Court has no difficulty
in concluding that when a legitimate arrest of a suspect is made
away from his home, seizure not only of his person, but of those
of his effects which are with him is justified. Given the exigencies
of the typical street arrest, officers are not required to take time
out from their immediate purpose to allow their suspect to put
his affairs in order. Since it would be anomalous to find that the
Fourth Amendment, designed to insure the sanctity of private
possessions, compelled the police to leave the personal effects of
a prisoner, be they suitcases, cars or other items, scattered in the
street, the assumption of temporary possession by officers cannot
14a
be found unreasonable under its dictates.' See Cady v. Dombrowski
413 U. S. 433, 446-47 (1973).
The second question is whether the “inventory’’ conducted
unde; the facts of the instant case is a Fourth Amednment search.
The Supreme Court has explicitly refrained thus far from ruling on
this issue. See, e.g., Harris v. United States, 390 U. S. 234 (1968);
Cady v. Dombrowski, supra, 413 U. S. 433, 442, footnote (1973).
There have been state decisions finding inventory procedures to
be other than “‘searches”’ on the theories that there is no intent to
“seize’’ anything or that there is in these situations no ‘‘reason”’ to
search or expectation that criminal evidence will be discovered.
See People v. Sullivan, 29 N. Y. 2d 69, 323 N. Y. S. 2d 372, cert,
denied, 399 U. S. 912 (1970). As pointed out in United States
v. Lawson, 487 F. 2d 468, 472 (8th Cir. 1973), the above decisions
are:
... based on a highly technical construction of the
meaning of “‘search,”’ unwarranted in our view of the
Fourth Amendment, To consider an inventory proce-
dure not to be a “search” does violence to the concept
1. This does not mean that such a policy does not present
serious line drawing problems. Would it be unreasonable,
for example, following an arrest, to go to a suspect's
apartment and seize his car parked in front of it, although
that car would in many respects be equally as ‘‘abandoned”’.
Or would it be reasonable, even were the procedure stan-
dard, to go to the arrestee’s home, left unguarded in his
absence, and place a police guard on it.
If these practices were prohibited, problems would arise
in the determination of how far a vehicle must be from
a suspect’s home before it is subject to ‘protective’
seizure. The spectre of a somewhat different problem
is raised by the present case: assuming all of the above
seizures were justified by precisely the same protective
argument as that set out above, would an “inventory”
of the contents of such a car or apartment also be
justified. While the implications of an inventory of
such a car or apartment are not presented by this case,
neither are they far off.
15a
of the Fourth Amendment as a protection of the pri-
vacy of the citizenry against unwarranted invasion by
government officials.
It is not the intent to seize incriminating evidence which makes
governmental intrusions into private effects obnoxious in a free
society, but the simple fact of intrusion itself under power of the
state. ? Thus, in Camara v. Municipal Court, 387 U. S. 523, 530
(1967), the Supreme Court, addressing the issue of administrative
searches, wrote:
We may agree that a routine inspection of the physical
condition of private property is a less hostile intrusion
than the typical policeman’s search for fruits and instru-
mentalities of crime... . But we cannot agree that the
Fourth Amendment interests at stake in these inspec-
tion cases are merely “‘peripheral.’’ 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.
See also, See v. City of Seattle, 387 U. S. 541 (1967). In a footnote
to this passage, the Camara court cited the reader to Mr. Justice
Brennan’s dissent in Abe/ v. United States, 362 U.S. 217 (1960).
The language of that opinion warants extended recitation here:
2.
‘In our view the sounder course is to recognize that the
Fourth Amendment governs all intrusions by agents of
the public upon personal security, and to make the scope
of the particular intrusion, in light of the exigencies of
the case, a central element in the analysis of reasonable-
ness...
“This seems preferable to an approach which attributes
too much significance to an overly technical definition
of ‘‘search’....”
Terry v. Ohio, 392 U.S. 1, 18, n. 15 (1968).
16a
One more word. We are told that the governmental power
to make a warrantless search might be greater where the
object of the search is not related to crime but to some
other “‘civil’’ proceeding — such as matter bearing on the
issue whether a man should forcibly be sent from the
country. The distinction is rather hollow here, where the
proofs that turn up are in fact given in evidence ina
criminal prosecution. And the distinction, again, invites
a trial of the officers’ purposes. But in any event, | think
it perverts the Amendment to make this distinction. The
Amendment states its own purpose, the protection of the
privacy of the individual and of his property against the
incursions of officials: the “right of the people to be
secure in their persons, houses, papers, and effects.’’
See Boyd v. United States, 116 U. S. 616, 627. Like
most of the Bill of Rights it was not designed to be a
shelter for criminals, but a basic protection for everyone;
to be sure, it must be upheld when asserted by criminals,
in order that it may be at all effective, but it ‘‘reaches
all alike, whether accused of crime or not.”’ Weeks v.
United States, supra, at 392. it is the individuals
interest in privacy which the Amendment protects,
and that would not appear to fluctuate with the “‘intent”’
of the invading officers. It is true that the greatest and
most effective preventive against unlawful searches
that has been devised is the exclusion of their fruits
from criminal evidence, see Weeks v. United States, supra;
Boyd v. United States, supra; but it is strange reasoning
to infer from this that the central thrust of the guarantee
is to protect against a search for such evidence. The argu-
ment that it is seems no more convincing to me now than
when it was made by the Court in Frank v. Maryland,
359 U. S. 360. To be sure, the Court in Boyd y. United
States, supra, and in subsequent cases has commented
upon the intimate relationship between the privilege
against unlawful searches and seizures and that against
self-incrimination. This has been said to be erroneous
history; if it was, it was even less than a harmless error:
it was part of the- process through which the Fourth
17a
Amendment, by means of the exclusionary rule, has be-
come more than a dead letter in the federal courts. Cer-
tainly this putative relationship between the guarantees
is not to be used as a basis of a stinting construction of
either — it was the Boyd case itself which set what might
have been hoped to be the spirit of later construction of
these Amendments by declaring that the start of abuse
can ‘‘only be obviated by adhering to the rule that con-
stitutional provisions for the security of person and pro-
perty should be liberally construed.” 116 U. S., at 635.
362 U. S. at 254-56.3
More recently, in Wyman v. James, 400 U. S. 309 (1971), the
Court again dealt with the question of what constitutes a Fourth
Amendment ‘search’ outside of the context of direct criminal
investigation. There the visit of a social worker to a welfare reci-
pient’s home, refusal to allow which would result in the denial or
termination of welfare payments, was considered not to constitute
a search. * In his brief resolution of this issue, Mr. Justice Blackmun,
writing for the Court, first notes:
It is true that the governing statute and regulations appear
to make mandatory the initial home visit and the subse-
quent periodic “‘contacts” (which may include home
visits) for the inception and continuance of aid. It is also
true that the caseworker’s posture in the home visit is
perhaps, in a sense, both rehabilitative and investigative.
But this latter aspect, we think, is given too broad a
character and far more emphasis than it deserves if it
is equated with a search in the traditional criminal law
context.
3. Frank v. Maryland, to which Justice Brennan refers, was in fact
overruled in Camara, supra.
4. The Court, however, goes on at length to show that even
if it were to be considered a search, it would be allowed
under the reasonableness standard of the Fourth Amend-
ment.
18a
400 U. S. at 317. The fact that a general inspection is considered
somewhat less intrusive than an investigative criminal search was
clear in Camara, supra. To what extent Justice Blackmun is saying
more here is unclear. From the remainder of the discussion, how-
ever, it appears that his ultimate decision is grounded not as much
in the relative abrasiveness of the intrusion as in the circumstances
under which any actual entry in the class of case with which he was
concerned would occur:
We note too that the visitation itself is not forced or com-
pelled, and that the beneficiary’s denial of permission is
not a criminal act. If consent to the visitation is withheld,
no visitation takes place, The aid then never begins or
merely ceases, as the case may be. There is no entry of
the home and there is no search.
400 U.S. at 317-18 (emphasis added). If such an inspection is not
a search, it appears to be because any intrusion which is made is
not compelled®. Any other reading of this language would result
in the conclusion that forced admission of government personnel
into all private homes for the purpose of ‘‘merely inventorying’’
private property or performing some other administrative or
noncriminal investigative function would jot constitute an intru-
sion against which the Fourth Amendment protected. Were the
Supreme Court to take such a step, this Court is convinced that
such implications would be addressed directly. In the present
case, of course, no Opportunity to refuse the inventory and suf-
fer the consequences was offered. The element of compulsion
is undisputed.
Thus the Court concludes that the ‘‘noninvestigative”’ police
“inventory” is a type of official intrusion into private property
and effects which the Fourth Amendment was intended to con-
trol. United States v. Lawson, 487 F. 2d 468 (8th Cir. 1973). The
framers of the Fourth Amendment sought not to protect criminals,
but to protect from unreasonable search those in whose possession
5. The Court’s later discussion in which a search is assumed
is prompted in part “‘because the average beneficiary might
feel she is in no position to refuse consent to visit.’’ 400
U. S. at 318.
19a
no incriminating evidence would be found. And it must be felt
that the motivation behind the Amendment was not simply a
sympathy with the disappointment of the person searched at the
discovery that he was not above suspicion, but a shared indigna-
tion at the uncontrolled official sifting and rummaging through
private papers and effects which are no less part and parcel of
an ‘“‘inventory”’ than of a fruitless criminal search.
The question now becomes whether the search conducted
in this case was reasonable. There is no contention that probable
cause existed for the search. The argument of the Commonwealth
is in fact just the opposite. It asserts the police had absolutely no
reason to believe that incriminating evidence would be discovered.
The inventory was conducted as a matter of standard police pro-
cedure for the purpose of ascertaining to the satisfaction of every-
one involved exactly what items had been seized so that those
items could be returned upon petitioner's release.
The analysis of reasonableness must begin with the Supreme
Court's statement in Chambers v. Maroney, 399 U. S. 42, 52
(1970) * that ‘for purposes of the Fourth Amendment there is
a constitutional difference between houses and cars.’ This con-
clusion, however, is not reached a priori, but arises from the appli-
cation of specific policy determinations.
The constitutional difference between searches of and
seizures from houses and similar structures and from
vehicles stems both from the ambulatory character of
the latter as well as from the fact that the extensive
and often noncriminal contact with automobiles that
will bring local officials in ‘plain view’ of evidence,
fruits, or instrumentalities of a crime or contraband.
Cady v. Dombrowski, supra, 413 U. S. 433 (1973). The weakened
standard of review applied in car cases, which extends only to
5a. In Chambers, the search was upheld because supported
by probable cause on the part of the officers to believe
the automobile contained evidence in connection with
criminal activity.
it ee ts
dispensing with the presumption that the absence of a warrant
makes a search unreasonable, see Cooper v. California, 386 U.S.
58 (1967), extends only as far as the above justifications will carry
it. ‘The word ‘automobile’ is not a talisman in whose presence
the Fourth Amendment fades away and disappears.’’ Coolidge v.
New Hampshire, 403 U. S. 443, 461-62 (1971).
The respondent concedes not only that the police did not
secure a warrant but that they could not have secured one. There
was nothing exigent about the circumstances and there was no
cause to believe anything would be found. Thus the exceptions
founded upon the ambulatory nature of automobiles and the
necessity of an on the spot search are here inapplicable.
The foundation of the “‘plain view” exception is the propriety
of the officer being where he was and doing what he was doing
at the time the evidence discovered came into view. Included in
the calculus of this decision must be whether the police function
being performed itself infringed upon the safeguards provided by
the Fourth Amendment even though the seizure of evidence in
plain view would, if isolated, be constitutionally unexceptionable.
In Harris v. United States, 390 U. S. 234 (1968), petitioner
was arrested for robbery and his car, which had been identified
leaving the scene of the crime, was impounded as evidence. A
regulation of the District of Columbia Police Department required
that an impounded vehicle be searched and that all valuables be
removed. Having completed the search, an officer opened the
front door of the car for the sole purpose of closing the windows
and locking the doors. At that time he noted the disputed evidence
lying face up on the metal door stripping.
The Supreme Court found the question presented to it to
involve the isolated acts of rolling up the windows and locking the
doors.
The admissibility of evidence found as a result of a
search under the police regulation is not presented
by this case. The precise and detailed findings of the
District Court, accepted by the Court of Appeals, were
21a
to the effect that the discovery of the card was not the
result of a search of the car, but of a measure taken
to protect the car while it was in police custody.
Nothing in the Fourth Amendment requires the police
to obtain a warrant in these narrow circumstances.
390 U. S. at 236. In essence, while refusing to address the full scale
search which had been conducted, the Court found that the minimal
protective measures of rolling up windows and locking doors of cars
legally in custody did not amount to a search. Since this police con-
duct was not proscribed and the evidence came in plain view at that
time, the evidence was admissible. ®
Another line of cases, of which Cady, supra, is the culmination,
indicates that, under certain circumstances, the mere fact of legiti-
mate police custody of a vehicle is sufficient to dispense with a
warrant. There is nothing in these decisions, however, to indicate
that the requirement of reasonableness, in its Fourth Amendment
sense, is in any way mitigated. See Chambers v Maroney, 399 U. S.
42 (1970) (probable cause to search the car for evidence held suffi-
cient). Thus these cases rely heavily upon the specific factual cir-
cumstances in which they arise. As stated in Cooper v California,
386 U.S. 58 (1967):
While it is true, as the lower court said, that “‘lawful
custody of an automobile does not of itself dispense
with constitutional requirements of searches there-
after made of it,”’ . . . the reason for and nature of
the custody may constitutionally justify the search.
386 U. S. at 61. The circumstances in Cooper, supra, which led the
Court to find a search reasonable were explicitly set out:
6. Despite the express assertion by the Supreme Court in Harris
that its holding implied nothing concerning evidence seized
in the course of a full search of a car conducted as a matter of
police procedure, its holding has been taken by some courts
to constitute tacit assent to inventory searches. Thus, in a
breif per curiam opinion, citing only Harris on the issue, the
Court in Barker v. Johnson, 484 F. 2d 941
22a
Here the officers seized petitioner's car because they
were required to do so by state law. They seized it be-
cause of the crime for which they
arrested petitioner. (transporting heroin). 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 the car had been impounded, and the reason
it was being retained. The forfeiture of petitioner’s car
did not take piace until over four months after it was
lawfully seized. It would be unreasonable to hold that
the police, having to retain the car in their garage for
such a length of time, had no right, even for their own
protection, to search it. 386 U. S. at 61-62.
Fn. 6 continued
(6th Cir. 1973) found that when policemen, who had gone to appel-
lant’s car to “inventory the valuables, to roll up the windows and
to lock’’ it, opened the door and came within plain view of evidence,
its discovery was not the result of an illegal search. The presumption
made with rather blithe assurance by the Barker court, that the lock-
ing of a car’s doors and the rolling up of its windows are to be
equated in Fourth Amendment terms with a full scale inventory,
not only does not arise from Harris, but the absence of any such
necessary equation was there specifically pointed out. It is simply
not obvious that the personal interest sacrificed in conceding to
police the freedom to lock a car’s doors for the owner's protection
is the same as that sacrificed in granting police freedom to sift
through papers and effects in a locked glove compartment or trunk.
See, supra, at pp. and preceeding analysis. The necessary articula-
tion of the rebalancing of interests required if Barker is to be read
as approving inventory searches is lacking. However, the result in
Barker is proper if the focus in that case is shifted, as was the focus
in Harris, away from the “inventory” and toward the fact that the
police had every right to open the door, for the purpose of closing
the windows. Evidence then in plain view is, of course, admissible.
23a
The facts in the present case not only bear no functional simil-
arity to those in Cooper, but are extremely similar to those of
Preston v. United States, 376 U.S. 364 (1964) which are held up
by the Cooper Court as a foil to its own situation:
Preston was arrested for vagrancy. The arresting officers
took his car to the station simply because they did not
wish to leave it on the street. It was not suggested that
they did this other than for Preston's convenience or that
they had any right to impound the car and keep it from
Preston or whomever he might send for it. The fact that
the police had custody of Preston’s car was totally unre-
lated to the vagrancy charge for which they arrested him.
So was their subsequent search of the car. This case is not
Preston, nor is it controlled by it. 386 U. S. at 67.
In Cady, supra, the reasons justifying search again arose from
peculiar facts. Following an accident, the automobile of a Chicago
policeman was taken into custody by Wisconsin police. As a matter
of standard procedure of the department, Wisconsin officers searched
the car for the driver’s service revolver which they believed he was
required to have with him at all times. The Supreme Court held
that where ‘‘the trunk of an automobile, which the officer reasonably
believed to contain a gun, was vulnerable to intrusion by vandals,”
a search was not unreasonable. The officers in Cady responded to
a department policy “‘to protect the public from the possibility
that a revolver would fall into untrained or perhaps malicious hands.”
The compelling nature both of this objective and of the desire to
carry it out with some immediacy can be readily appreciated.’ |
There is no similar importunity involved in the making of an inven-
tory list which might be of some use in resolving a possible future
disagreement between police and a prisoner concerning whether
police returned everything in his car at the time it was taken into
custody. To validate the latter on the basis of the former is to say
that if compelling reasons can tilt the balance in favor of a search —
7. While some weight is given in Cady to the fact that the
procedure there used was “‘standard,”’ this would seem to
go to the issue of abuse of a facially valid search and not
to validity itself. “‘A search which is constitutionally re-
pugnant is surely no less offensive if carried out univer-
sally and methodically as an element of ‘standard proce-
vse
dure’.
24a
then any reason can do so. When the safeguards from unjustified
official intrusion set out in the Fourth Amendment stand on the
other side of that balance, such logic must be brushed aside. The
Cady line of precedent does not command that the search conducted
in the present case be upheld. On the contrary, the proper analysis
of the balancing of the interests presented in this case was set out
in United States v. Lawson, 487 F. 2d 468, 475-76 (1973). Since
the question there raised was precisely the same as that here and
the analysis particularly cogent, a considerable segment is set out
below.
The reasoning of the cases upholding inventory searches
has been, except where not calling the procedure a search,
that the police procedure is a reasonable one to protect
the valuable property of an accused while in custody and
to protect the police departments from groundless claims
for ‘‘lost’’ property. The soundness of this conclusion has
been questioned.
Moreover, such a conclusion does not seem adequate to
justify the substantial invasion of Fourth Amendment
protections involved here. The essential test of the vali-
dity of a search is reasonableness, yet the standard of
reasonableness must be evolved in light of the Fourth
Amendment, not in light of what our view of reasonable
police procedures might be. In addressing itself to a con-
tention that it was reasonable to search an entire house
without a warrant when a suspect is arrested in the
house, the Supreme Court said in Chimel v. California,
395 U.S. 752, 764-765, 89 S. Ct. 2034, 2041, 23 L.
Ed. 2d 685 (1969):
But that argument is founded on little more than
a subjective view regarding the acceptability of
certain sorts of police conduct, and not on consid-
erations relevant to Fourth Amendment interests.
Under such an unconfined analysis, Fourth Amend-
ment protection in this area would reach the evapo-
ration point.
25a
We think this is a persuasive refutation of the Govern-
ment’s argument that because it is a ‘‘reasonable’’ police
procedure it should be upheld under the Fourth Amend-
ment. Obviously the police have an interest in safeguard-
ing themselves against groundless claims. Just as obviously,
and more importantly in terms of the Fourth Amendment,
owners and operators of motor vehicles have an interest
in safeguarding their possessions from unreasonalbe police
intrusions. A rule that upon a showing of a legitimate
governmental interest, the constitutional protections of
citizens must give way, would eliminate those protections
in the very situations for which they were intended. 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.
‘‘(L)awful custody of an automobile does not of
itself dispense with constitutional requirements
of searches thereafter made of it,”’ . . . the reason
for the nature of the custody may constitutionally
justify the search.
Cooper v California, supra at 61 of 386 U. S., at 791
of 87 S. Ct.
it is unnecessary for us to determine all the reasons for,
and natures of police custody that might justify a search;
here the only justification for the search is bare police
custody of the vehicle. While police custody may justify
_ reasonable measures to protect the vehicle itself (i.e.,
rolling up the windows and locking the doors), or pro-
perty within plain view in the automobile, such reasonable
protective measures does not extend to breaking into a
locked trunk. We find ourselves in agreement with the
position taken by the California Supreme Court in
addressing the contention that the inventory procedures
are necessary and reasonable:
26a
This contention is rebutted by recognition of the
vehicle owner’s countervailing interest in main-
taining .he privacy of his personal effects and
preventing anyone, including the police, from
searching suitcases, and other closed containers
and areas in his automobile at the time the
police lawfully remove it to storage. In weighing
the necessity of the inventory search as protection
of the owner’s property against the owner’s rights
under the Fourth Amendment, we observe that
items of value left in an automobile to be stored
by the police may be adequately protected merely
by rolling up the windows, locking the vehicle
doors and returning the keys to the owner. The
owner himself, if required to leave his car tem-
porarily, couid do no more to protect his pro-
perty. :
Mozzetti v. Superior Court, 94 Cal. Rptr. at 417, 484 P.
2d at 89; accord Boulet v. State, 495 P. 2d at 509.
It is not as obvious to us, as it appears to be to some courts,
why the inventory procedure offers the police any more pro-
tection against false claims than would a standard policy
of locking the car and returning the keys to the owner;
or of allowing the owner to make arrangements himself
for the removal and storage of his vehicle.
One further point remains to be added. To the extent that the
inventory is conducted for the benefit of the owner of the vehicle,
it is unclear why he cannot be asked if he wants the benefit of such
protection. To the extent that the inventory is conducted to pro-
tect the police against false claims, it must be remembered that the
burden of showing that any item was in fact in the car at the time
of the seizure would be on the owner. Furthermore, police are
required only to take reasonable precautions in light of what they
reasonably believe to be in their possession. Upon a refusal to
consent to an inventory, it would appear that police would be
justified in assuming that they were in possession of nothing more
than an automobile and its necessary accoutrements. The dangers
of false claims prevailing under these circumstances, while not
27a
nonexistent, are sufficiently minute to make the sacrifice of con-
stitutionally protected interests for the purpose of further diminish-
ing those dangers patently unreasonable. A further possible police
protection would entail no more than the sealing of the trunk in
such a way that an unbroken seal would indicate that the trunk
had not been opened during police custody.
The Court feels it appropriate to address the implications of
United States v. Robinson, 42 U.S.L.W. 4055 (Dec. 11, 1973),
which was decided after briefs in the instant case were submitted.
In that case a person legitimately arrested on a traffic charge was
given a thorough search of his person in the course of which
several capsules of heroin were discovered. Use of the Heroin
as evidence was upheld by the Supreme Court since the heroin
was discovered in the course of a legitimate search incident to
a lawful arrest.
A custodial arrest of a suspect based on probable cause
is a reasonable intrusion under the Fourth Amendment;
that intrusion being lawful, a search incident to the
arrest requires no additional justification. It is the fact
of the lawful arrest which establishes the authority to
search, and we hold that in the case of a lawful custo-
dial arrest a full search of the person is not only an
exception to the warrant requirement of the Fourth
Amendment, but is also a ‘reasonable’ search under
that Amendment.
41 U.S.L.W. at 4060. However, under the principle of Preston v.
United States, 376 U.S. 364 (1964), which was reaffirmed in the
specific context presented by the case at bar in Cady v. Dombrow-
ski, supra, the automobile search in this case cannot stand as a
search incident to an arrest. Cady, decided only six months before
Robinson and authored by the author of the Robinson opinion,
dealt with Preston as follows:
In (Preston), the police received a telephone call at 3:00
a.m. from a calles who stated that ‘‘three suspicious men
acting suspiciously” had been in a car in the business
28a
a ae ae
§ sc Sg.
district of Newport, Kentucky, for five hours; four policemen inves-
tigated and, after receiving evasive explanations and learning that
the suspects were unemployed and apparently indigent, arrested
the three for vagrancy. The automobile was cursorily searched,
then towed to a police station and ultimately to a garage, where
it was searched after the three men had been booked. That search
revealed two revolvers in the glove compartment; a subsequent
search of the trunk resulted in the seizure of various items later
admitted in a prosecution for conspiracy to rob a federally insured
bank. In that case the respondent attempted to justify the warrant-
less search of the trunk and seizure of the items therein ‘‘as inci-
dental to a lawful arrest.’’ 376 U.S. at 367. The Court rejected
the asserted “search incident” justification for the warrantless
search in the following terms:
But these justifications are absent where a search is remote
in time or place from the arrest. Once an accused is under
arrest and in custody, then a search made at another place,
a a warrant, is simply not inciderit to the arrest.
bid.
It would be possible to interpret Preston broadly, and to argue that
it stands for the proposition that on those facts there could have
been no constitutional justification advanced for the search. But
we take the opinion as written, and hold that it stands only for
the proposition that the search challenged there could not be
justified as one incident to an arrest.
413 U.S. at 444. Since the facts in the case at bar for all relevant
purposes parallel those in Preston, this search cannot be upheld
on the “search incident” theory advanced in Robinson.
Finally, United States v. Edwards, 42 U.S.L.W. 4463 (1974),
the Supreme Court's most recent Fourth Amendment pronounce-
ment, is also of no aid to respondent. That case held only that a
search otherwise proper under the “incident to a lawful arrest’’
exception would not be invalidated simply because it was post-
poned until after arrest or processing, or until the next morning.
But far from constituting any vitiation of the command that
searches be ‘‘reasonable,’’ the decision is expressly grounded in
29a
that standard. The search in Edwards was for evidence and probable
cause existed tc believe that the specific evidence sought would be
found in the place searched. In the case at bar, it is conceded that
there was no reason to believe evidence or contraband was concealed
in the trunk. There were no exigent circumstances. There was none
of the importunity of a search for weapons. There was no genuine
concern on any officer's part that the car or its contents might be
physically harmful. In short, there were none of the traditional in-
dices of reasonableness to search. Nor has contemporary society
evolved so far from the Founders’ jealous concern for personal pri-
vacy and security, in person and effects, that a policeman’s chance
of marginal advantage in the event of what must be considered an
unlikely civil action is now reasonable grounds for invasion of those
freedoms. .
For the reasons heretofore stated, the evidence seized was done
so in the course of a search prohibited by the Fourth Amendment
and violative of the freedom from unreasonable governmental
intrusion which it protects. No reason or precedent has been ad-
vanced sufficient to justify infringement upon the Fourth Amend-
ment interests property embodied in our fundamental law. The
evidence so seized should therefore have been suppressed. The
writ will issue.
MERHzGe I,
S/Robert A- mq; sr. “i °
United States District Judge
Date: April 23, 1974
| 520. _—Cabbler v. Commonwealth, 212 Va. 520.
Opinion
Richmond
Herbert W. Cabbier v. Commonwealth of Virginia
November 29, 1971
Record Nos. 7744, 7745, 7746, 7747 ard 7748.
Present, All the Justices.
(1) Search and Seizure — Property of Accused Taken into Custody — Inventory.
(2) Criminal Procedure — Instruction on Lesser Offense.
1. Public policy dictates that citizen's rights in his property shall be preserved.
Police procedure to protect property of citizen arrested away from home
approved. When arrested <t hospital on another charge, defe:uant had
parked his automobile improperly. Defendant was advised that automobile
would be removed to city garage for safekeeping. Before storage, contents
were removed for inventory. Stolen goods discovered were admissible in
evidence.
2. Commonwealth's election to proceed against defendant for the greater
offenses of larceny and petit larceny, under the general larceny statutes,
does not preclude giving instruction on and conviction of defendant on
lesser offense of larceny by receiving stolen property.
Error to a judgment of the Hastings Court of the City of Roanoke.
Hon. Ernest W. Ballou, judge presiding.
Affirmed.
John H. Kennett, Jr., for plaintiff in error in Record Nos. 7744,
7745, 7746, 7747 and 7748.
Gilbert W. Haith, Assistant Attorney General (Andrew P. Miller,
Attorney General, on brief), for defendant in error in Record Nos.
7744, 7745, 7746, 7747 and 7748.
Harman, J., delivered the opinion of the court.
The defendant, Herbert W. Cabbler, appeals from five final orders
sentencing him to a total of eleven years in the state penitentiary
3la
Cabbler v. Commonwealth, 212 Va. 520.
Opinion
and fines totaling $1,000.00. Cabbler was convicted on three counts
of grand larceny and two counts of petit larceny after a consolidated
_ trial by jury. The jury’s finding in each instance was that the larceny
was committed by receiving stolen property.
The defendant claims that the trial court erred in three respects.
These are: (1) the admission in evidence of stolen goods found in
Cabbler’s car; (2) the granting of any instructions on receiving
stolen property when the Commonwealth elected to rely on the
general larceny statutes for conviction; and (3) the granting of
other instructions tendered by the Commonwealth setting forth
the presumptions which arise from the possession of recently
stolen property.
The defendant was arrested at approximately 1:30 a.m. on
September 2, 1969, at Community Hospital in Roanoke by Sergeant
R. C. Reynolds of the Roanoke Police Department on a felony
charge (shooting into an occupied dwelling). The validity of this
arrest is not challenged.
Sergeant Reynolds had observed Cabbler enter the hospital
after parking his Cadillac automobile. The car was parked in a no
parking zone on a private driveway belonging to the hospital in
such a manner as to partially block the ambulance driveway lead-
ing to the hospital emergency entrance.
After Cabbler’s arrest he asked Reynolds to close the windows
on his car, which he pointed out to the officer, as it was raining.
Reynolds, after closing the car windows, advised Cabbler that the
car would be removed from the hospitai driveway to the City
Garage for safekeeping until Cabbler’s release from custody. Cabbler
made no complaint or protest to this although he later testified at
trial that he had already arranged to have the car “‘picked up”’ by
one of his employees.
The car, before being stored in the City Garage, was taken to
the police property room where the contents of the car were to be
removed, inventoried and stored for safekeeping. !t was then that
the police discovered the stolen goods that resulted in Cabbler’s
later convictions.
32a
SI Gx rR
Cabbler v. Commonwealth, 212 Va. 520.
Opinion
The defendant argues that discovery of the contraband resulted
from an unlawful search and seizure and that this evidence should
have been suppressed by the trial court.
(1) The Attorney General does not attempt to justify discovery
of the stolen goods as a search incident to a lawful arrest. He says
that the action of the police in removing Cabbler’s car from the drive-
way of the hospital to a place of safekeeping and the removal and
inventory of the contents of the car were reasonable acts performed
under procedures established by the Roanoke Police Department
for the protection of property in the possession of a person arrested
away from his place of residence.
The evidence disclosed that the procedure followed in this
case was the result of a long-standing practice and policy of the
Roanoke Police Department. One witness testified that this policy
was already in effect when he was first employed, more than 28
years earlier, by the department. The policy is that the police,
when arresting a person away from his place of residence in pos-
session of property, including automobiles, will take temporary
custody of the property for safekeeping unless other immediate
means are available to protect such property. ;
Prior to 1964 or 1965 it was not customary to remove,
inventory and separately store the contents of vehicles which
came into possession of the police for safekeeping unless the
police were specially requested to do so. In 1964 or 1965, how-
ever, complaints were made and claims for reimbursement filed
by the owners of vehicles who claimed property was lost or stolen
while their cars were so stored. The procedure for removal, inven-
tory and separate storage of the contents of vehicles in safekeeping
was instituted then in an effort to prevent theft or loss of property
from stored vehicles.
it has always been the public policy of the Commonwealth
to preserve and protect the individual rights of its citizens. Public
policy also dictates that a citizen's rights in his property shall
likewise be preserved and protected. Thus it would appear, and
we so hold, that the policy established and the procedure followed
by the Roanoke Police Department to protect the property of a
citizen arrested away from his home in possession of property
33a
»
6 dew Det,
522 Cabbler v. Commonwealth, 212 Va. 520.
Opinion
where no other immediate means is available for safekeeping of such
property are reasonable and in accord with the public policy of the
Commonwealth set forth earlier.
The Fourth Amendment does not forbid all searches and seizures
but only those that are unreasonable. Terry v. Ohio, 392 U.S. 1,9
(1968); Kirby v. Commonwealth, 209 Va. 806, 167 S.E. 2d 411
(1969). Whether a particular search is unreasonabie within the mean-
ing of the Fourth Amendment depends upon the particular facts
and circumstances of the case. Dyke v. Taylor Implement Mfg. Co.,
391 U.S. 216 (1968); Cooper v. California, 386 U.S. 58, 59 (1967):
Preston v. United States, 376 U.S. 364, 366-67 (1964).
The Fourth Amendment does not preclude the state from
developing workable rules governing arrests, searches and seizures
to meet the practical demands of effective criminal investigation
and law enforcement in the states, provided that those rules do
not violate the constitutional proscription of unreasonable searches
and seizures and the concomitant command that evidence illegally
seized is inadmissible. Ker v. California, 374 U.S. 23, 24 (1963);
Sibron v. New York, 392 U.S. 40, 60-61 (1968).
Upon the facts before us we hold that the policy established
by the Roanoke Police Department and the procedure followed
in connection therewith are such reasonable rules governing
arrests as were contemplated in Ker and Sibron. Such a policy is
in accord with the public policy of the Commonwealth, is not
violative of the defendant’s Fourth Amendment rights and serves
the best interest of the property owner by protecting and safe-
guarding the property in his possession at the time of his arrest.
We therefore find this assignment of the defendant to be
without merit.
(2) Next we consider the defendant's claim that the trial court
erred in instructing the jury on receiving stolen property when the
Commonwealth had elected to rely upon the general larceriy statutes
for conviction.
Cabbler v. Commonwealth, 212 Va. 520. 523
Opinion
The five indictments against the defendant charged him with
three counts of grand larceny under Code S 18.1-100 and two counts
of petit larceny under Code S 18.1-101.
Prior to trial the defendant demanded, as he was entitled under
Code S 18.1-109, that the attorney for the Commonwealth advise
him of the statute relied on to ask for conviction in each case. He
was advised that the Commonwealth elected to rely on the statute
as set forth in each of the indictments. '
In the trial court the defendant objected to the giving of instruc-
tions on receiving stolen property on the ground that the Common-
wealth had elected to rely on the general larceny statutes and not
on Code S 18.1-107 which reads in pertinent part:
“If any person... receive from another person. . . any stolen
goods . . . knowing the same to have been stolen, he shall be deemed
guilty of larceny thereof... .”
He argues here, as he did below, that the failure of the Common-
wealth to specify Code S 18.1-107 in its election precluded the court
from instructing the jury on larceny by receiving stolen goods.
Larceny by receiving stolen goods is a lesser offense which is in-
cluded in the major one of larceny. Branch v. Commonwealth, 184
Va. 394, 35 S.E. 2d 593 (1945); see also Dove v. Peyton, 343 F. 2d
210 (4th Cir. 1965). The lesser offense is indictable as larceny, Clark
v. Commonwealth, 135 Va. 490, 115 S.E. 704 (1923), and the ac-
cused may be convicted of the lesser offense of receiving stolen
goods. Stapleton v. Commonwealth, 140 Va. 475, 124 S.E. 237
(1924).
Thus the Commonwealth’s election to proceed against the de-
fendant for the greater offenses under the general larceny statutes
did not preclude the giving of instructions on and the conviction
of the defendant of the lesser offenses of larceny by receiving stolen
property.
1. The three grand larceny indictments referred specifically to
Code S 18.1-100 and both of the petit larceny indictments
referred to Code S 18.1-101.
35a
524 Cabbler v. Commonwealth, 212 Va. 520.
Opinion
i
The defendant’s argument that the court erred in the instruc-
tions granted explaining the presumptions which arise from possession
of recently stolen property is without merit.
Affirmed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.